Skip to content


Kamalakshi Vasantha Kumari Vs. Sankaran Sadasivan, Trivandrum - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKerala High Court
Decided On
Case NumberCrl. Revn. Petn. No. 93 of 1977
Judge
Reported inAIR1979Ker116; 1979CriLJ113
ActsCode of Criminal Procedure (CrPC) , 1974 - Sections 125, 127(3) and 488; Travancore Ezhava Act - Sections 8
AppellantKamalakshi Vasantha Kumari
RespondentSankaran Sadasivan, Trivandrum
Appellant Advocate Pirappancode V. Sreedharan Nair and; V.N. Achutha Kurup, Advs.
Respondent Advocate H. Sivaramakrishna Iyer, Adv.
DispositionPetition dismissed
Cases ReferredKunhi Moyin v. Pathumma
Excerpt:
.....- - (3) where any order has been made under section 125 in favour of a woman who has been divorced by, or has obtained a divorce from, her husband, the magistrate shall, if he is satisfied that -(a) the woman has, after the date of such divorce, remarried, cancel such order as from the date of her remarriage; this section may be pressed into service by some ingenious husbands to defeat the provisions contained in section 125. we would like to make it clear that section 127(3)(b) refers not to maintenance during the period of iddat or payment of dower. ' this appears to us to be a clumsy and circuitous way of referring to the well known expression 'maintenance' which could certainly have been done if such was the legislative intent, in plainer and simpler, and more direct..........before the full bench to consider the correctness of certain observations in the ruling of a division bench of this court in kunhi moyin v. pathumma, (1976 ker l t 87). the revision has been preferred by the divorced wife of the respondent. (the parties are ezhavas, governed, at the relevant time, by the travancore ezhava act 1100). she filed m.c. no. 29 of 1967 before the i class magistrate's court, neyyattinkara, for maintenance under section 488 of the criminal procedure code, for herself and her three children on the ground of neglect by the respondent. maintenance was decreed at the rate of rs. 160/- per mensem for all the four together. the respondent thereafter filed the ezhava summary no. 3 of 1968 on the file of the munsiff's court, trivandrum, for dissolution of his.....
Judgment:

Gopalan Nambiyar, C.J.

1. This Revision was directed to be placed before the Full Bench to consider the correctness of certain observations in the ruling of a Division Bench of this Court in Kunhi Moyin v. Pathumma, (1976 Ker L T 87). The Revision has been preferred by the divorced wife of the respondent. (The parties are Ezhavas, governed, at the relevant time, by the Travancore Ezhava Act 1100). She filed M.C. No. 29 of 1967 before the I Class Magistrate's Court, Neyyattinkara, for maintenance under Section 488 of the Criminal Procedure Code, for herself and her three children on the ground of neglect by the respondent. Maintenance was decreed at the rate of Rs. 160/- per mensem for all the four together. The respondent thereafter filed the Ezhava Summary No. 3 of 1968 on the file of the Munsiff's Court, Trivandrum, for dissolution of his marriage with the petitioner under Section 8 of the Travancore Ezhava Act. A decree for dissolution was passed on 31-3-1970. That section requires that the petitioner shall, in all cases, offer in the petition, reasonable compensation to the respondent except where such respondent has changed his or her religion. Section 9 further provides that the reasonableness of the compensation is to be determined by the court after an enquiry into the petition, and that it shall in no case exceed Rs. 2000/- where the petitioner is the husband, and Rs. 500/-where the petitioner is the wife. In this case, the maximum compensation of Rs. 2000/- was ordered against the respondent. This amount was also paid. The respondent then filed an application under Section 488 of the Criminal Procedure Code for cancellation of the maintenance awarded in favour of the petitioner. This application was also allowed some time in 1970. In the new Criminal Procedure Code of 1973, a divorced wife was also included within the ambit of Section 125(1) of the Code. Section 125 takes the place of Section 488 of the earlier Code. Clause (b) of the explanation to Sub-section (1) of the said section enacts that a 'wife' includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not been re-married. The explanation was squarely attracted to the petitioner, and taking advantage of the same, she filed M.C. No. 36 of 1974 for maintenance, before the Sub-Divisional Magistrate, Neyyattinkara. That application was dismissed by the Magistrate on the ground that Section 127(3) of the Code operated as a bar to the maintainability of the application. The Magistrate took the view that as the petitioner had received the whole of the sum papable under the personal law on divorce, the application was not maintainable we extract Section 127:

'127 (1) On proof of a change in the circumstances of any person, receiving under Section 125 a monthly allowance, or ordered under the same section to pay a monthly allowance to his wife, child, father or mother, as the case may be, the Magistrate may make such alteration in the allowance as he thinks fit:

Provided that if he increases the allowance; the monthly rate of five hundred rupees in the whole shall not be exceeded.

(2) Where it appears to the Magistrate that, in consequence of any decision of a competent Civil Court, any order made under Section 125 should be cancelled or varied, he shall cancel the order or, as the case may be, vary the same accordingly.

(3) Where any order has been made under Section 125 in favour of a woman who has been divorced by, or has obtained a divorce from, her husband, the Magistrate shall, if he is satisfied that --

(a) the woman has, after the date of such divorce, remarried, cancel such order as from the date of her remarriage;

(b) the woman has been divorced by her husband and that she has received, whether before or after the date of the said order, the whole of the sum which, under any customary or personal law applicable to the parties, was payable on such divorce, cancel such order:--

(i) in the case where such sum was paid before such order, from the date on which such order was made,

(ii) in any other case, from the date of expiry of the period, if any, for which maintenance has been actually paid by the husband to the woman;

(c) the woman has obtained a divorce from her husband and that she had voluntarily surrendered her rights to maintenance after her divorce, cancel the order from the date thereof.

(4) At the time of making any decree for the recovery of any maintenance or dowry by any person, to whom a monthly allowance has been ordered to be paid under Section 125, the Civil Court shall take into account the sum which has been paid to, or recovered by such person as monthly allowance in pursuance of the said order.'

After the dismissal of M.C. No. 36 of 1974, the petitioner filed M.C. No. 73 of 1976, inspired by certain observations made by the Division Bench ruling of this Court in Kunhi Moyin v. Pathumma (1976 Ker LT 87). These observations were that the payment contemplated by Section 127(3)(b) was alimony or compensation, the wife agreeing not to claim maintenance, or any other amount. The application was particularly on the ground that in any event there was no agreement by the wife not to claim the amount as required by the observations of the Division Bench in Kunhi Moyin v. Pathumma (1976 Ker LT 87). That application was dismissed by the Magistrate and this revision petition is preferred against that order.

2. The Magistrate was of the view that as at the time of the dissolution of her marriage with the respondent the petitioner had been granted, and had received, the amount payable to her under the personal law, the application for maintenance by her in the circumstances was not maintainable. It was also barred by reason of the prior order in M.C. No. 36 of 1974, and the decision in 1976 Ker LT 87 cannot give the petitioner any fresh right.

3. Counsel for the revision petitioner contended that the above view of the Magistrate was wrong and could not be sustained in the light of the Division Bench ruling in (1976 Ker LT 87). The contention was put in two ways; that strictly and technically, Section 127(3) would allow the Magistrate only to cancel an order for maintenance and not to dismiss the application for maintenance filed by the petitioner; and next, that even a cancellation strictly under Section 127(3), or the dismissal of the petition, as in this case, would not be justified in view of the observations made by the Division Bench in Kunhi Moyin v. Pathumma (1976 Ker LT 87). The observations are as follows: After quoting Section 127(3) the Division Bench observed:

'This section provides that the Magistrate shall cancel the order for maintenance if any sum under any customary or personal law applicable to the parties is paid on divorce. This section may be pressed into service by some ingenious husbands to defeat the provisions contained in Section 125. We would like to make it clear that Section 127(3)(b) refers not to maintenance during the period of iddat or payment of dower. Unfortunately, place of dower is now occupied by dowry, payable by the girls' parents, which till 1-6-1961 was paid in public and thereafter in private; thanks to the Dowry Prohibition Act, 1961. It is therefore not a sum of money which under the personal law is payable on divorce as expressed in Section 127(3)(b), On the other hand, what is impliedly covered by this clause is such sums of money as alimony or compensation made payable on dissolution of the marriage under customary or personal law codified or uncodified, or such amount agreed upon at the time of marriage to be paid at the time of divorce, the wife agreeing not to claim maintenanceor any other amount. We thought it necessary to clarify this position lest there be any doubt regarding the scope of Section 127(3)(b), for, at the first blush, it might appear that, it takes away by one hand what is given under Section 125 by the other hand. This is not so.'

The observations of the Division Bench were really unnecessary for the purpose of that case and were meant, as the Division Bench itself had stated, only to clarify the position and resolve any doubt that might arise in regard to the applicability of the section . Again, after giving the matter our careful consideration, we find no warrant to interpose in the Section 127(3)(b) words to the effect that the wife must have agreed not to claim maintenance or any other amount; and we think the Division Bench was wrong in making this a necessary pre-condition to the applicability of the Sub-section (3)(b) of Section 127. We are fortified in taking that view when we look to the language of Sub-clause (c) of Sub-section (3) of the section , where reference is made to the voluntary surrender of the right to maintenance by the woman. In contrast, the language used in Clause (b) of Sub-section (3) appears significant and in the face of the language so used, we see no warrant for interposing the words that we have emphasised, which the Division Bench sought to interpose into the section .

4. Our attention was drawn to the decision of a Division Bench of the Bombay High Court in Rukhsana Parvin v. Sk. Mohd. Hussein (1977 Cri LJ 1041). The Bombay High Court there held that while there are no words restricting the right to entertain an application for maintenance in Section 127 itself, the rule of harmonious construction required that Section 127(3)(b) must be read and understood as a proviso to Section 125. So understood, Section 127(3)(b) would restrict the power of the Magistrate to entertain an application for maintenance at the instance of the divorced wife who is affected by the disability under Section 127(3)(b). The Bombay High Court was accordingly of the view that where a Mohammedan husband had paid his divorced wife the mahr and maintenance during the period of iddat, an application by the divorced wife under Section 127(3)(b) was not maintainable. The view thus taken by the Bombay High Court appears to us quite reasonable and proper, and commends itself to us. We re-cord our agreement with the said view. In the view thus taken, the observation of the Division Bench in Kunhi Moyin v. Pathumma (1976 Ker LT 87) in the paragraph which we have quoted and which we have emphasised, cannot be sustained, and must be held to be wrong.

5. The view that we have taken of Section 127(3)(b) should provide an answer to the argument raised on behalf of the revision petitioner that the Magistrate had really no jurisdiction to dismiss the application for maintenance, but should have dealt with the application, and proceeded separately under Section 127(3) to cancel the maintenance by appropriate proceeding or order. The effect of the view indicated by the Bombay High Court and accepted by us is that Section 127(3)(b) is telescoped into Section 125 and is to be read and understood as a proviso to the latter section . The dismissal of the application by the court below was therefore correct, and calls for no interference. Even if Section 127(3)(b) were to be construed as an independent section , it might require the entertainment of an application under Section 125 followed by a cancellation immediately thereafter under Section 127(3)(b). We are not disposed to interfere in revision, if, instead of going through this multiplicity of proceedings, the Court dismissed the application.

6. Counsel for the revision-petitioner argued that the amount decreed in Ezhava Summary No. 3 of 1968 was not really an amount for future maintenance of the revision-petitioner, but was only compensation as provided under Section 8 of the Travancore Ezhava Act. For that reason counsel for the revision-petitioner argued that Section 127(3)(b) of the Code would not be attracted. We are unable to accept this argument. Section 8 of the Travancore Ezhava Act refers only to an application to offer 'reasonable compensation' and no more. It does not either expressly or impliedly designate the amount of compensation as maintenance. Turning now to Section 127(3)(b), that section only speaks of 'a sum, which under the customary or personal law applicable to the parties, was payable on divorce.' This appears to us to be a clumsy and circuitous way of referring to the well known expression 'maintenance' which could certainly have been done if such was the legislative intent, in plainer and simpler, and more direct language. We are therefore of the opinion that sum referred to by Section 127(3)(b) need not be restricted to maintenance in the well-understood sense of the term, but may cover any sum or amount payable on divorce under the customary or personal law of the parties. Such was the amount in the instant case, and Section 127(3)(b) is attracted. The contention contra by counsel for the revision-petitioner cannot be accepted.

7. We dismiss this revision petition.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //