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Mayarkara Illath Narayanan Moosad Vs. Koori Kathil Itticherry Amma - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtChennai
Decided On
Reported inAIR1918Mad431; 42Ind.Cas.331; (1917)33MLJ449
AppellantMayarkara Illath Narayanan Moosad
RespondentKoori Kathil Itticherry Amma
Cases ReferredNur Mahomed v. Ayesha Bibi I.L.R. (l
Excerpt:
.....up her claim under the promissory note unless she got maintenance order from the magistrate), the learned magistrate ought to have dismissed her petition on that ground. 5. on the ground that the joint magistrate has failed to consider the effect of the agreement between the parties evidenced by exhibits a and i (vide subuddhi v. the suit in which the district munsif's decree was passed was filed after the original maintenance order had been passed and the district munsif was clearly wrong in awarding damages to petitioner against respondent on the ground that the latter had obtained a maintenance order from the magistrate for it has been repeatedly held that a civil court cannot pass a decree interfering with a prior maintenance order by way of injunction or other similar order (deraji..........other cases such as mahomed abid ali kumar kadar v. ludden sahiba i.l.r. (1886) c. 276 and abdur bahman v. sakhina and in re abdul ali ismdilji i.l.r. (1883) b 180 the relationship between the parties had ' altered; and in nur mahomed v. ayesha bibi i.l.r. (l905) a. 488 the civil decree was a consent decree which provided for the maintenance, and in no decided case to which i have been referred has a maintenance order been allowed to be set aside by a decree based upon the same facts and material as the magisterial order.
Judgment:
ORDER

Sadasiva Aiyar, J.

1. The petitioner in revision, Narayana Moosad, was at first directed by the Magistrate to pay Rs. 15 a month for the maintenance of the respondent's (Itticheri Amma's) elder child who seems to have been born in 1914. This order was passed on 12-5-1916, notwithstanding the petitioner's denial that he kept or married the woman or that the child was born to him. Against that order there was a previous revision petition to this Court (Crl. Revision Case No. 491 of 1916), and the 'Magistrate's order was set aside by Mr. Justice Spencer on 4-12-1916 in order that the Magistrate might consider the circumstances of the woman's tarwad and then fix the maintenance.

2. Pending this maintenance case before the Sab-Divisional Magistrate, the petitioner filed a suit O.S. No. 295 of 1916) in the District Munsif's Court of Tirur for a declaration that the plaintiff was never his wife and the child was not born to him and for another relief (not relevant to this case). That declaration was granted by the District Munsif. When the Criminal maintenance case came up again before the Sub-Divisional Magistrate the petitioner produced the judgment and decree of the District Munsif and requested the Magistrate to drop all further proceedings in the maintenance case. The Magistrate refused to do so and passed a fresh order on 3-4-1917 directing the petitioner to pay the complainant, Itticherri Amma, a sum of Rs. 8 per mensem for the maintenance of the boy, Krishnan and another sum of Rs. 7 for a child named Parvathi, aged 9 months, that child having been in the womb when the first order of the Magistrate (12-5-1916) was passed.

3. The learned Magistrate affirms his finding that the complainant was kept by the petitioner and the first child was born to him. And one of his reasons is that the petitioner made an attempt to compromise the complainant's claim and obtained a release deed, Exhibit I, from her for a consideration of Rs. 200. Though the petition No. 20 of 1916 (which seems to have been numbered after the remand as 125/1916) prayed for allowance for the maintenance of the elder child alone, the Magistrate, as I said before, has given her Rs. 7 for the maintenance of the younger child born about July 1916. In the evidence of the complainant taken again on the 30th January 1917, the complainant says ' The second delivery was after the former case. I claim maintenance for the second child. Accused is the father. It is a female child. ' She admits in her evidence that she executed the release deed, Exhibit I, because he threatened steps against her civilly and that she also got a promissory note for Rs. 150, Exhibit A from the petitioner. Then she says ' If this Court passes an order of maintenance, I do not want the pro-note'. There is nothing to show the rate at which she claimed maintenance for the second child or that the petitioner was called upon to show cause why he should not pay maintenance for the second child or to state what, according to him, would be a reasonable rate of maintenance. The learned Sub-Divisional Magistrate has ordered the Rs. 15 which he had in his first order, allowed for the maintenance of the eldest child to be now treated as the maintenance rate for both children dividing it into 8 and 7. As to why the learned Sub-divisional Magistrate refused to accept the District Munsif's decree declaring that the complainant was not the petitioner's wife nor was the child born to him, the Magistrate makes the following observations: 'At the risk of pronouncing an obiter dictum I cannot help remarking that the possibility of such thing happening ' (namely, a Civil Court declaring the petitioner not to be the father of the child and granting him damages for bringing a false complaint and the petitioner inducing the High Court to Order the Sub-Divisional Magistrate to retry the case) ' does not conduce to the dignity of justice either Civil or Criminal some means of co-ordination should exist. In this case the procedure of this Court by comparison with that of the Civil Court is certainly not summary. I understand that the Munsif is now engaged in revising his own order ' I might here add that the learned Sub-Divisional Magistrate himself has revised his former order because he says in paragraph 7 of the present order ' The sum of Rs. 15 is perhaps rather excessive for one child.' I understand that the District Munsif dismissed the review petition put in by the complainant in the civil case.

4. As regards the comparison indulged in by the learned Sub-Divisional Magistrate between the procedure of his court and the procedure of the District Munsif 'a Court, it seems to me not relevant and I may perhaps be permitted to state that the manner m which the Sub-Divisional Magistrate has on the bare statement of the complainant in the witness-box in January 1917 allowed her a sum of Rs. 7 for the maintenance of the second child whose maintenance was not the subject of the complaint shows that his procedure is rather summary. The learned Magistrate is quite right in saying that some means of co-ordi nation should exist between the Civil and Criminal Courts. I think that such means of co-ordination has been laid down' by competent authorities long ago. In Mahomed Abid Ali Kumar Kadar v. Ludden Sahiba I.L.R.14 (1886) C 276 decided by Mr. Justice Princes a very learned Civilian Judge of High authority in criminl matters) and Mr. Justice Beverley, which was argued by Mr. Amir Ah for the lady who claimed maintenance, the leaned Judge states as follows: Having found '(in the civil litigation)' that the relationship of husband and wife no longer exists, between the parties, it remains for us to consider the effect of our finding on the proceedings before the Magistrate. The plaintiff asks for an injunction to restrain the Magistrate from enforcing the order for maintenance. We are of opinion that we cannot pass such an order. The plaintiff will be at liberty to satisfy the Magistrate that, by an order of this Court in its civil jurisdiction, it has been declared that no relationship, exists between him and the defendant and he can ask the Magistrate on the authority of the cases of Abdur Rahiman v. Sakhina I.L.R. (1879) C 558 and Inre Abdul Ali Isumailji and Husenb I.L.R. (1883) B.180 toabstain from giving any further effect to his order for maintenance.' In 2 Wier 614, the Magistrate passed on order for maintenance and then a suit was brought and the District Munsif's court cancelled the order of the Magistrate. The learned Judges say ' it is obvious that the District Munsif had no jurisdiction to entertain a suit for such a purpose. The decree can only enure as a decree interpartes determining the right of the parties inter se, but not directly affecting the order of the Magistrate which the High Court alone are empowered to set aside. What the District Munsif decided was that the woman had been living apart from the husband for more than 12 years. It is not decided that she did so voluntarily, nor is it found that she has been living an unchaste life or has done anything to disentitle her to maintenance. If it had been so decided, the Magistrate who passed the original order would have been bound in the interests of justice to take the judgment into consideration before passing a fresh order to enforce the former order, because such a decision would, as between the parties, be strong if not conclusive evidence of what it decided.' In this decision of September 1877, the question was not finally decided as it was unnecessary to decide it for the purposes of that case. Then we come to the case noted in the very next page 615 which was decided by Wilkinson and Shephard, JJ., in August 1889. I shall quote the whole of the judgment as this has always been considered as laying down the law in Madras: 'By the decree made by the District Munsif of Palghat in February 1889; the plaintiff Veeran is declared not to be liable to pay separate maintenance to his wife. The orders for such maintenance previously made by the Head Assistant Magistrate did not take away the jurisdiction of the Civil Courts to make the declaration, under Section 42 of the Specific Relief Act. The Munsifs decree being final, it is binding upon the parties to it and the husband is entitled to insist that the Magistrate does not enforce the order of maintenance, which assumed that the obligation negatived by the decree existed. It is not open to the Magistrate to ignore a final decree on the ground that it rests on reasons which do not appear to him satisfactory, the jurisdiction vesting in him under Section 4 88 of the Criminal Procedure Code being auxiliary to that of the Civil Courts. The order of the Magistrate must be cancelled on the ground that there was no sufficient reason for the wife to refuse to live with the husband and that the decision of the District Munsif is conclusive on that point. This will not, however, preclude the interference of the Magistrate, if there should arise any fresh causes for such interference,' I shall flow consider the case of Deraje Mulinga Naikca v. Marati Kaveri I.L.R. (1907) M. 400 decided by Sir Arnold White, C.J., and Mr. Justice Miller. The cases Veeran v. Ayyammah (1889) 2 Weir 615 and Mahomed Abid Ali Kumar Kadar v. Ludden Sahiba I.L.R. (1886) C. 276 are referred to, approved and followed. It distinguishes the case of Subhudra v. Basdeo Dube I.L.R. (1895) A. 29. In Syed Saib v. Meeran Bee (1909) 20 M.L.J. 12 Munro and Abdur Rahim, JJ., held that ' the Magistrate is bound to abstain from enforcing his previous order for maintenance when it is once established that the relationship of husband and wife ceased to exist since the date of the order. ' In Ghana Kanta Mohanta v. Gereli I.L.R. (1904) C. 479 it was held in the converse case that the Magistrate's finding against the sonship of a person for whom maintenance was claimed by the mother was not a bar to a suit in the civil court to establish the sonship and to recover maintenance. See also Trinayani Dasee v. Srichandan Bhuiya (1912) 15 I.C. 603. In Nur Muhammad v. Ayesha Bibi I.L.R. (1905) A 483 Mr. Justice Aikman following In re. Bulakidas I.L.R. (1898) B. 484 says that 'a decree of a civil court for restitution of conjugal rights passed after an order of maintenance in favour of the wife superseded the maintenance order and ought to be cancelled and we accordingly cancel it. I am therefore clear that the learned Magistrate ought to have, in the language of the case in 2 Weir 615, held that the decision of the District Munsif is conclusive on the question of relationship as declared by that decree and should have refused to pass any order for maintenance. His order is therefore cancelled in the exercise of the powers of this Court under Section 439 of the Criminal Procedure Code. I might add that the woman having given a registered release deed Exhibit I and obtained the promissory note Exhibit A and her evidence clearly showing that she refused to be bound by the agreement only, because she expected an order from the Magistrate more favourable than she got under the release, (she was not willing to give up her claim under the promissory note unless she got maintenance order from the Magistrate), the learned Magistrate ought to have dismissed her petition on that ground. See also Veeramma v. Narayya I.L.R. (1883) M. 283

Phillips, J.

5. On the ground that the Joint Magistrate has failed to consider the effect of the agreement between the parties evidenced by Exhibits A and I (vide Subuddhi v. Jamuna Bai. 2 Wei Crl. R 631 and on the ground that the Magistrate's order was passed after the decree of the District Munsif I agree in the order proposed. The suit in which the District Munsif's decree was passed was filed after the original maintenance order had been passed and the District Munsif was clearly wrong in awarding damages to petitioner against respondent on the ground that the latter had obtained a maintenance order from the Magistrate for it has been repeatedly held that a Civil Court cannot pass a decree interfering with a prior maintenance order by way of injunction or other similar order (Deraji Malinga Naika v. Marati Kaveri I.L.R. (1907) M. 401 Mahomed Abid Ali Kumar Kadar v. Ludden Sahiba I.L.R. (1886) C. 276. The District Munsif's decree had the effect of nullifying the prior magisterial order, and I am not prepared to hold on the very limited arguments in this case that a party can get a magisterial order for maintenance set aside by a civil court when there has been no change of relationship between the parties between the date of the order and the date of suit. (Vide Subhudra v. Basdeo Dube I.L.R. (1895) A 29 In the other cases such as Mahomed Abid Ali Kumar Kadar v. Ludden Sahiba I.L.R. (1886) C. 276 and Abdur Bahman v. Sakhina and In re Abdul Ali Ismdilji I.L.R. (1883) B 180 the relationship between the parties had ' altered; and in Nur Mahomed v. Ayesha Bibi I.L.R. (l905) A. 488 the civil decree was a consent decree which provided for the maintenance, and in no decided case to which I have been referred has a maintenance order been allowed to be set aside by a decree based upon the same facts and material as the magisterial order.


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