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Mambekkattu Nanu Vs. Mambekkattu Vasantha - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKerala High Court
Decided On
Judge
Reported in1984CriLJ1206
AppellantMambekkattu Nanu
RespondentMambekkattu Vasantha
Cases ReferredSee Pappi Kovilamma v. Mopil Eradi
Excerpt:
.....naturally will have to be expressed in the form of an order. it is open to an unsuccessful party to approach a civil court for appropriate reliefs, say, declaration that the woman is not his legally wedded wife. as a consequence of such decision of a competent civil court, it would follow that she cannot continue to enjoy the fruits of the order passed by the criminal court in recognition of her status as a wife......case. and does not help the revision petitioner.4. the prior application under section 125 of the code filed by the present respondent was at a time when she was the wife of the present petitioner. her claim was based on her status as a wife. as a wife she had a duty to reside with the husband and on her failure to do so, was expected to show sufficient cause for her refusal to live with the husband. her refusal to live with the husband and her failure to show cause for such conduct led to the dismissal of the prior application. if while she continued to be the wife she had filed a second application, perhaps it could have been said that the second application would not lie. but she filed the second application only after the matrimonial court passed a divorce decree. at the time when.....
Judgment:
ORDER

U.L. Bhat, J.

1. The respondent herein filed M.C. No. 119/76 under Section 125 of the Criminal P.C. (for short, the Code) against her erstwhile husband, the present petitioner and the same was dismissed on 8.5.1978 holding that the wife was living separately from the husband without reasonable cause and there was no neglect or refusal to maintain her on the part of husband. The petitioner thereafter filed O.P. No. 369/78 before the civil court for restitution of conjugal rights and restitution was ordered on 6.10.1978. The wife refused to go back to him and the petitioner filed O.P. No. 380/79 for divorce and divorce was granted on 31.10.1980. Thereafter the divorced wife, the present respondent, filed M.C. No. 42/81 claiming maintenance from the petitioner herein under Section 125 of the Code. The learned Magistrate dismissed the petition on the ground that a fresh application under Section 125 of the Code could not be entertained in view of the dismissal of the previous application. The present respondent challenged this order in revision and the Sessions Court taking the contrary view, set aside the order of the learned Magistrate and remanded the case for disposal afresh in accordance with law. It is this order which is now challenged in revision.

2. Learned Counsel for the revision petitioner would contend that the view taken by the learned Magistrate was correct and a fresh application between the same parties would not be competent and the remedy available to a divorced wife is to file an application under Section 127(2) of the Code. Learned Counsel also placed reliance on the decisions in V.M. Awadhut v. Ratnaprabha Awadhut 1978 Cri. LJ 1406 (Bom) and Balakrishnan v. Rajamma 1979 Ker. LT 502.

3. In V.M. Avadhut's case there was an order directing payment of maintenance to the wife and child. She again filed a separate application alleging that the husband was not paying maintenance regularly. The second application was filed before another court. The proceedings were under the Code of Criminal Procedure, 1898. The Bombay High Court held that the second application was not maintainable and the remedy of the wife was to file an application for getting arrears of maintenance. The principle decided in the above decision has no bearing on the controversy in this case. The point decided in Balakrishnan's case 1979 Ker LT 502 was that on the dismissal on merits of an application under Section 125 of the Code, a fresh application may not lie because the earlier order would be final. This proposition also is not in issue in this case. and does not help the revision petitioner.

4. The prior application under Section 125 of the Code filed by the present respondent was at a time when she was the wife of the present petitioner. Her claim was based on her status as a wife. As a wife she had a duty to reside with the husband and on her failure to do so, was expected to show sufficient cause for her refusal to live with the husband. Her refusal to live with the husband and her failure to show cause for such conduct led to the dismissal of the prior application. If while she continued to be the wife she had filed a second application, perhaps it could have been said that the second application would not lie. But she filed the second application only after the matrimonial court passed a divorce decree. At the time when she moved the second application, she was no longer the wife of the present petitioner. She had ceased to be his wife. It is only on the strength of the extended definition of the expression 'wife' occurring in Explanation (b) to Section 125(1) of the Code that she is entitled to claim maintenance as a divorced wife. As a divorced wife she no longer has the duty to reside with her husband and therefore she is no longer required to reside with him and is no longer required to show cause why she refuses to live with him. In these circumstances the present application filed by her cannot be treated as a second application filed by the wife. No doubt, altogether she filed two applications; but, the earlier one was filed when she had the status of the wife and the latter application was filed at a time when she had ceased to be the wife and as a divorced wife on the strength of the extended definition of the expression 'wife' occurring in the Explanation mentioned above. Therefore, if I may say so, the present application cannot be treated as a second application at all. In this view I am not able to hold that there is incompetency attached to the present application.

5. Learned Counsel for the petitioner alternatively contended that the remedy of the petitioner respondent is only to invoke section 127(2) of the Code. According to this provision, 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. According to the learned Counsel, the order of dismissal or rejection passed in the earlier application is an order made under Section 125 for the purpose of Section 127(2) of the Code and this order may require cancellation or variation in consequence of the decree for divorce, which is the decision of a competent civil court and therefore the divorced wife can secure remedy either by cancellation of the earlier order or by variation of that order under Section 127(2) of the Code.

6. This argument takes us to the question as to what exactly is meant by the phrase 'any order made under Section 125' occurring in Section 127(2) of the Code. It is only an order made under Section 125 of the Code which could be cancelled or varied and not any other order. When an application is filed under Section 125 of the Code, according to the learned Counsel for the petitioner, different kinds of orders could be passed thereon there could be an order granting maintenance to all the petitioners; there could be an order granting maintenance to one of the petitioners and rejecting the claim of the others; there could be an order rejecting the claim of all the petitioners. All these orders, according to the learned Counsel for the petitioner, would fall within the phrase 'any order made under Section 125' occurring in Section 127(3) of the Code and therefore capable of being cancelled or varied in terms thereof. The matter has to be examined with reference to the provisions of Sections 125, 126 and 127 of the Code.

7. Section 125 permits a Magistrate on proof of circumstances contemplated therein, to 'order such person to make a monthly allowance for the maintenance....' The proviso also contemplates the passing of an 'order' to make such allowance. Sub-section (2) relates to the date from which allowance is payable, either from the date of the 'order' or from the date of the application. Sub-section (3) refers to the failure of the person 'so ordered', to comply with the order and lays down what steps have to be taken. Sub-section (5) contemplates the cancellation of the 'order' on proof that any wife 'in whose favour an 'order' has been made under this section' is living in adultery etc. The proviso to Section 126(2) states that 'while the Magistrate is satisfied that the person against whom an 'order' for payment of maintenance is proposed to be made' is wilfully avoiding service, or wilfully neglecting to attend the Court, the Magistrate may proceed td hear and determine the case ex parte and 'any order so made' may be set aside for good cause shown on an application made as contemplated therein.

8. Thus an analysis of the provisions of Sections 125, and 126 of the Code would show that the 'order' contemplated thereunder is an order directing a person to make a monthly allowance for the maintenance of the wife or the child, the father or the mother. It is the implementation or the cancellation of such order which is dealt with in some of the Sub-section (1) of Section 125. Such an order can be passed ex parte also. It is only an order directing payment of maintenance made ex parte which could be cancelled under the proviso of Section 126(2) of the Code. Thus for the purpose of Sections 125 and 126 of the Code, it is clear that 'order' means only an order directing a person to make monthly allowance and not an order rejecting the claim. It is also significant to note that the proviso to Section 126(2) contemplating good cause being shown to set aside an order, reference is made to 'any order', an expression also found in Section 127(2) of the Code. It cannot be said that the expression 'any order' mentioned in the aforesaid provisions would take in not only an order ordering payment of allowance but also an order rejecting the claim of maintenance.

9. Section 127 reads thus:

127. Alteration in allowance:(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.

10. The first three sub-sections of Section 127 deal with circumstances under which the Magistrate could bring about alterations in, cancellation of or variation in the order passed, under Section 125. Sub-section (1) deals with an alteration in the allowance as the Magistrate thinks fit, on proof of a change in the circumstances of any person receiving, or ordered to pay monthly allowance. There is no doubt, that under this provision, an order directing payment of maintenance could even set be at naught, on proof of a change in the relevant circumstances. The expression 'alteration' used in Sub-section (1) would contemplate such an order also. See Pappi Kovilamma v. Mopil Eradi 1973 Mad LJ (Cri) 599 (Ker). By no stretch of imagination can it be said that sub-Section (1) contemplates alteration in any manner of an earlier decision or order rejecting the claim made under Section 125 of the Code. Sub-section (1) contemplates only an alteration of an order passed under Section 125 of the Code directing payment of maintenance allowance.

11. The same position obtains regarding Sub-section (3) also. According to Sub-section (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 regarding the circumstances contemplated under Sub-clause (a), (b) or (c), cancel the order from the date thereof. The phrase 'any order has been made under Section 125' does not and cannot take in an order of dismissal of an application under Section 125 of the Code. A reading of the sub-section shows that what is contemplated in cancellation of an order passed under Section 125 directing a person to pay allowance to the applicant. The question of cancellation of an order rejecting a claim made under Section 125 of the Code would certainly not arise.

12. The same connotation must attach to Sub-section (2) also, where it appears that in consequence of any decision of a competent civil court, 'any order' made under Section 125 should be cancelled or varied, the Magistrate shall do so. Read in the context of the connotation and content of expression 'order' used not only in Sections 125 and 126 but also in Sub-sections (1) and (3) of Section 127 of the Code, I am of opinion that the 'order' referred to in Sub-section (2) could only be an order passed under Section 125 of the Code directing payment of maintenance allowance by the husband or other person liable, to the applicant or to the other entitled person. It is only such an 'order' which could be cancelled or even varied. Where the Magistrate arrives at a decision to the effect that there has been no failure to maintain or refusal to maintain the applicant or that the applicant has sufficient means of her own to maintain herself, or the applicant is disentitled from claiming maintenance for any of the reasons contemplated by law, that decision naturally will have to be expressed in the form of an order. Every decision of a Court is brought forth in the form of a judgment or an order. The expression 'order' has not been used in any of these sections in the general sense of the expression meaning an order reflecting any decision of a court, irrespective of the nature of the decision. The expression 'order' has been used in these sections in the restricted sense of the term namely, an order directing payment of maintenance under Section 125 of the Code. It is only where there is such an order directing payment of maintenance that the question of cancellation or even variation would arise. The decision or order rejecting an application under Section 125 is not an order which could be cancelled or varied under Section 127(2) of the Code.

13. An applicant under Section 125 of the Code may be a woman whose status as a wife is disputed by the opposite party. That dispute has to be adjudicated upon by the criminal court for the purpose of disposing of the claim. In a given case the criminal court may uphold her claim and order maintenance. Such an order would always be subject to the decision of a competent civil court. It is open to an unsuccessful party to approach a civil court for appropriate reliefs, say, declaration that the woman is not his legally wedded wife. He may secure a favourable decree. That would mean that she could not be regarded his lawfully wedded wife. As a consequence of such decision of a competent civil court, it would follow that she cannot continue to enjoy the fruits of the order passed by the criminal court in recognition of her status as a wife. In such cases it would be open to the party who succeded in the civil court to move the Magistrate under Section 127(2) of the Code. I have only tried to illustrate the contingencies which could attract Section 127(2) of the Code. There may be other contingencies which also could attract this provision.

14. In this view I hold that there is no order made under Section 125 in the earlier application filed by the wife, which is capable of being cancelled or varied under Section 127(2) of the Code. The order passed therein was only an order rejecting the claim and such an order could not be cancelled or varied under Section 127(2) of the Code. Therefore the remedy of the present respondent is not under Section 127(2) of the Code but by filing a fresh application under Section 125 of the Code invoking her altered status as a divorced wife.

15. For another reason also, I think the same conclusion must follow. Cancellation or variation contemplated under Sub-section (2) of Section 127 of the Code must be the consequence of a decision of a competent civil court. I have referred to one of the contingencies which could attract Section 127(2) of the Code. The question is whether the decision by the civil court in this case namely, the decree of divorce, is a decision whose consequence would be cancellation or variation of an order passed earlier. The earlier application filed by the applicant as a wife of opposite party ended in dismissal on the ground that she did not satisfy the other requirements of Section 125.

16. The decision of the civil court had no bearing on the dismissal of the earlier application. The decision of the civil court has only the effect of converting the status of the respondent herein from that of a wife to a divorced wife. The change in her status would have no bearing in the matter of eligibility for maintenance or the sustainability of her claim, except perhaps in regard to some of the disabilities mentioned in the three sections referred to above, relating to the claim of a wife as such. If the maintenance claim put forward by a real wife (as distinct from a deemed wife) has been allowed and if the competent civil court holds that she does not have the status of a wife then perhaps such a decree may lead to cancellation or variation as contemplated under Section 127(2) of the Code. The divorce decree passed by a competent court would have no impact on the decision arrived at by a criminal court in the earlier application filed under Section 125. It cannot be said that the natural consequence of the decree of divorce would be cancellation or variation of the earlier order. The decision of the civil court in the instant case is not of such a nature as to invite cancellation or variation as contemplated in the above provision. For this reason also I hold that Section 127(2) of the Code would not be attracted in the instant case.

17. For the above reasons, I hold that the application filed under Section 125 of the Code by the respondent as the divorced wife of the petitioner was competent. No other contention's is raised against the legality of the order passed by the learned Sessions Judge. The revision petition is therefore dismissed.


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