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Linga Gounder Vs. Raman - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtChennai High Court
Decided On
Judge
Reported in1978CriLJ469
AppellantLinga Gounder
RespondentRaman
Cases ReferredKrishnammal v. Mahadeva Iyer
Excerpt:
- .....section 125 (1) (b), cr.pc was not maintainable, the objection wag not sustained and the learned magistrate granted maintenance to the respondent at the rate of rs. 75 per month. that order is challenged by the petitioner in these revision cases.2. since the ex parte order of maintenance has been set aside and the peti-1 tioner granted an opportunity to contest the case, it is not necesssary to consider the cr. r. c. no. 344 of 1975 on merits the points raised therein are also considered in cr. r. c. no. 672 of 1975 hence cr. r. c. 344 of 1975 will stand dismissed.3. to appreciate the contention of the petitioner in cr. r. c. no. 672 of 1975. it is necessary to state a few facts. the petitioner is working as a fitter in the railways and it is not disputed that the respondent is his.....
Judgment:
ORDER

Natarajan, J.

1. Both the revision cases have been preferred by one and the same person, the former against an ex parte order of maintenance passed in favour of the respondent, the latter against an order of maintenance passed after contest. The respondent herein is the illegitimate minor son of the petitioner. His mother, one Mangammal, filed a petition Under Section 125 (1) (b), Cr.PC 1973, for grant of maintenance to him. The averment of the mother was that the petitioner had neglected the child and failed to provide maintenance for it. The principal defence in the case was that on account of a maintenance decree, passed by a Civil Court, in favour of the minor son, an independent application Under Section 125 (1) (b), Cr.PC was not maintainable, The objection wag not sustained and the learned Magistrate granted maintenance to the respondent at the rate of Rs. 75 per month. That order is challenged by the petitioner in these revision cases.

2. Since the ex parte order of maintenance has been set aside and the peti-1 tioner granted an opportunity to contest the case, it is not necesssary to consider the Cr. R. C. No. 344 of 1975 on merits The points raised therein are also considered in Cr. R. C. No. 672 of 1975 Hence Cr. R. C. 344 of 1975 will stand dismissed.

3. To appreciate the contention of the petitioner in Cr. R. C. No. 672 of 1975. it is necessary to state a few facts. The petitioner Is working as a fitter in the Railways and it is not disputed that the respondent is his illegitimate son. On behalf of the respondent, a maintenance suit was filed before the District Munsif, Tirupattur in O. S. No. 156 of 1967. The District Munsif passed a decree for maintenance at the rate of Rs. 50 per month and also allowed a sum of Rs. 100 per annum towards medical expenses. It would appear that the respondent's mother also claimed maintenance for herself, but her claim was rejected as her professed marriage with the petitioner wag not a recognisable one. The petitioner challenged the decree for maintenance in A. S. No. 1250 of 1970 on the file of the Subordinate Judge. Tirupattur and later in S. A. No. 1316 of 1973, on the file of this Court. The decree for maintenance was confirmed but the grant of Rs. 100 per annum towards medical expenses was set aside.

4. During the pendency of the second appeal, the respondent's mother filed a petition Under Section 125 (1) (b), Cr.PC before the Sub-Divisional Judicial Magistrate, Tirupattur, for an order of maintenance in favour of the respondent. What prompted the respondent's mother to have recourse to this procedure was because the petitioner did not make any payment towards the maintenance decree and several execution petitions filed to execute the decree proved ineffective. In fact, the petitioner himself concedes that all these days he has not paid any amount towards the maintenance of the respondent. Only during the pendency of these proceedings, he has paid Rs. 400. In his affidavit, the petitioner states that he has paid, in all, a sum of Rs, 1,275, but, that matter requires factual verification. Be that as it may, the point now urged by Mr. Shanmugham, learned counsel for the petitioner, is that in view of the Civil Court's decree, the Magistrate was not entitled to entertain an application Under Section 125 (1) (b), Cr.PC or even if he has jurisdiction to entertain the application and pass orders against the father, he had no right to give maintenance at the enhanced rate of Rs. 75 per month.

5. As it is well known, Section 488, Cr.PC 1898, which corresponds to Section 125 of the present Code, was enacted with a view to provide speedy relief to destitute wives and children. Section 125 is wider in ambit than Section 488, in that provision is now made for maintenance being granted even to a major child if such a child is by reason of any physical or mental abnormality or injury, unable to maintain itself as well as to a father or mother, unable to maintain himself or herself. The Magistrate before whom an. application is filed Under Section 125 of the new Code, can order payment of monthly allowance for the maintenance of the wife, child, father or mother, as the case may be, upon proof of neglect or refusal to maintain by the husband, father or son, as the case may be. The only limitation placed upon the Magistrate is that the monthly rate of maintenance should not exceed Rs, 500 in the whole. Section 127 deals with alterations in the order of maintenance passed by a Magistrate Under Section 125. If there is proof of change in the circumstances of any person receiving maintenance u/g 125, the Magistrate may make suitable alterations in the maintenance order. The proviso to Sub-section (1) lays down that even at the time of altering the maintenance order, the Magistrate should take care to see that the monthly rate of Rs. 500, in the whole is not exceeded. Sub-section (2) of Section 127 requires consideration because the petitioner's counsel places reliance on the Sub-section to project the petitioner's case. It reads as follows -

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

From a reading of the Sub-section it may be seen that an earlier order passed by the Magistrate under Section 125, may be varied or altered by the Magistrate to bring it in conformity with a decision rendered subsequently by a competent Civil Court.

6. Taking the first contention of the petitioner's counsel, there is no difficulty in rejecting it for Section 125, Cr.PC does not lay down that the existence of a decree for maintenance passed by a Civil Court will bar the jurisdiction of a Magistrate to entertain a petition Under Section 125 for maintenance. Apart from that, we have a number of decided cases which clearly lay down that the existence of a civil decree for maintenance cannot operate as a bar to a proceeding for obtaining maintenance, being instituted under the Criminal Procedure Code. Sadasivam, J. in Govindasami Mudaliar v. Muthulakshmi Ammal. , held that the existence of a civil decree for maintenance in favour of a wife is not a bar to proceedings Under Section 488, Cr.PC 1898, and the question whether a decree of Civil Court would bar an action Under Section 488, Cr.PC 1898, would depend on the facts and circumstances of each case. This view has been followed in Basavan-appa Maharadurappa Fatten Shetti v. Barvatayya, . To same effect is the decision of the Bombay High Court in Mohamed AH Methabai, In re AIR 1930 Bom 144 : 31 Cri LJ 609 and In re Taralakshmi Manuprasad : AIR1938Bom499 ).

7. As regards the second contention, viz., that the Magistrate was not entitled to grant maintenance at a higher rate than what has been granted by the Civil Court, Mr. Shanmugham placed reliance on three authorities.

8. The first case, Maddu Venkayya v. Maddu Paidamma, : AIR1923Mad707 . has no relevance at all, to the controversy on hand. In that case, after a Magistrate had passed an order of maintenance in favour of an illegitimate child, he was approached to annul the order on the ground that a Civil Court had subsequently found the child was not born to the petitioner father. The Magistrate refused to take note of the Civil Court's jurisdiction and modify the order suitably. Such an order of the Magistrate was set aside by a Division Bench of this Court, because the very basis on which the order was made, viz., the child being the illegitimate child of the respondent, had been knocked down by the Civil Court's judgment and therefore, the Magistrate should have modified his order in the light of the Civil Court's decree.

9. The second authority, Mrs. Grisilda Titus v. Mr. Louis Titus : AIR1947Mad425 , also has similarity to the case referred to above. In this case, the maintenance granted to a wife was cancelled on the ground that the wife had committed adultery with one Alphonso. But, in a divorce suit filed by the husband, the District Judge found that the alleged adultery of the wife with Alphonso was not proved. After the District Judge dismissed the husband's suit, the wife approached the Magistrate for restoring the order of maintenance and contended that since the charge of adultery levelled against her had been found against by the District Judge, the cancellation of the maintenance order was not sustainable. The Magistrate refused to accede to this request. Yahya AH, J, deprecated the attitude of the Magistrate and held that the order of the Magistrate was in violation of Sub-section (2) of Section 489, Cr.PC 1898.

10. In both these cases, the order of the Civil Court had a material bearing on the statug or the rights of the parties to claim maintenance. Therefore, the Magistrate was bound to take note of the pronouncement of the Civil Court and cancel or vary the earlier order passed by him which conflicted with the judgment of the Civil Court.

11. The third of the oases cited is that of Krishnammal v. Mahadeva Iyer, : (1973)1MLJ344 , where Maharajan. J. has observed as follows -

Once a competent Civil Court gives a decision upon the liability for maintenance or the quantum thereof, the criminal Court is statutorily bound Under Section 489, Clause (2), Cr.PC to cancel or vary its own order in accordance with the decision of the Civil Court.

Mr. Shanmugham, contends that in the light of this observation, the Magistrate should have taken note of the Civil Court granting maintenance at the rate of Rs. 50 per month and therefore, should have confined his order also to the grant of a similar maintenance. The contention is clearly fallacious. The manner in which Section 489 (2) in the Criminal Procedure Code of 1898 was framed and Sub-section (2) of Section 127 of the 1973 Code is worded, will clearly show that for the Civil Court's pronouncement to have an impact on the order of maintenance made by a Magistrate, it should have been later in point of time. There i9 nothing in Section 127 (2) to show that if there had been an earlier decree by a Civil Court, a Magistrate must confine his award only to the quantum fixed by the Civil Court. If such a construction is to be put, it would, undoubtedly, result in hardship to destitute wives, children and parents. A Civil Court's decree might have been passed several years ago and it will be hardly fair to the claimants to say that in spite of the passage of several years and the increase in the cost of living, the Criminal Court should confine its award only to the figure fixed by the Civil Court and not give a higher maintenance after taking into consideration relevant features such as the rise in prices or the growing needs of the wife, children etc. Of course, if the Civil Court's decree was quite proximate in point of time, the Magistrate may take note of the decree passed by the Civil Court in fixing the quantum of maintenance. As pointed out by Sadasivam, J. in Govindasami Muda-liar v. Muthulakshmiammal, , the question as to how far a decree of Civil Court can have an impact on proceedings for maintenance under the Criminal Procedure Code will depend, on the facts and circumstances of each case. Im the instant case, the civil suit was filed in the year 1967 and the suit was decreed in 1970. The proceedings before the Magistrate were started only in the year 1975. Therefore, five years and more had passed between the date of the Civil Court's decree and the taking on file of the petition Under Section 125, Cr.PC In the meanwhile, the respondent had grown up and had also been admitted into school. Hence the Magistrate is justified in fixing a higher rate of maintenance than what was granted by the Civil Court. Mr. Shanmugham contends that at the time the Magistrate entertained the petition the second appeal was pending and subsequently, the second appeal also resulted in the confirmation of the trial Court's decree for maintenance at the rate of Rs. 50 per month, and hence, taking note of the judgment in that second appeal, the Magistrate should have fixed the maintenance amount only at Rs. 50 per month and not Rs. 75. This argument overlooks the fact that the judgment in the second appeal was with reference to fixation of maintenance amount by the trial Court in the year 1970. The question as to how much maintenance the respondent would require in the year 1975 or 1976, was not the subject-matter of consideration in the second appeal. Therefore, none of the points raised by the petitioner, or the cases cited by him, can be countenanced and a finding given in favour of the petitioner that the Magistrate was not entitled to fix a higher rate of maintenance than what was fixed by the Civil Court in the year 1970.

12. Lastly, Mr. Shanmugham pleaded that, in any event, the award of Rs. 75 per month was too onerous a burden for the petitioner to bear. The petitioner seems to be getting a salary of about Rs. 400 or Rs. 450. Though he is stated to have some lands, the income therefrom is not known. The petitioner has got other members of his family to support. In such circumstances, I think that the award of Rs. 60 per month as maintenance to the respondent would be an equitable grant both for the petitioner as well as the respondent. To this extent, the revision will stand allowed and the Magistrate's order for maintenance at the rate of Rs. 75 per month will stand modified to Rs. 60 per month. As ordered by the Magistrate, the petitioner should pay the maintenance from the date of the original petition, viz., 18-3-1975.

13. Except for the modification in the quantum of maintenance, the revision case will stand dismissed in other respects. It is made clear that whatever amounts are collected by the respondent in execution of the maintenance order, in these proceedings, will be given credit to in any execution petition filed by him in respect of the Civil Court's decree and, vice versa any amount realised in execution proceedings before the Civil Court will be given credit to in execution proceedings before the Criminal Court.


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