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S. Sethurathinam Piliai Vs. Barbara Alias Dolly Sethurathinam - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtChennai High Court
Decided On
Reported in(1973)2MLJ386
AppellantS. Sethurathinam Piliai
RespondentBarbara Alias Dolly Sethurathinam
Cases ReferredK.K. Misra v. Smt. Pratibha Misra
Excerpt:
- .....for maintenance under section 488, criminal procedure code in the court of the additional first class magistrate, tiruchirapalli, on the ground that the respondent was the legally married wife of the petitioner, that the daughter was born to them and that the petitioner had failed and neglected to maintain them. the learned additional first class magistrate held that the marriage between the petitioner and the respondent was not proved and her daughter was not a 'child' entitled to claim maintenance under section 488, criminal procedure code. the respondent filed revision against the order of dismissal of her application, in the high court. the high court reversed the order of the additional first class magistrate holding that the respondent was the wife of the petitioner and she was.....
Judgment:
ORDER

N. Krishnaswamy Reddy, J.

1. Crl. R.G. No. 1202 of 1971 arises out of the order of dismissal of the petition filed by the petitioner for cancellation of maintenance under Section 489 (2), Criminal Procedure Code and Crl.R.C. No. 1203 of 1971 arises out of allowing the petition of the respondent for enforcement of the order of maintenance even subsequent to the decision of the civil Court. As the facts and points for consideration are common in both these petitions, they are disposed of together.

2. The respondent and her daughter filed an application for maintenance under Section 488, Criminal Procedure Code in the Court of the Additional First Class Magistrate, Tiruchirapalli, on the ground that the respondent was the legally married wife of the petitioner, that the daughter was born to them and that the petitioner had failed and neglected to maintain them. The learned Additional First Class Magistrate held that the marriage between the petitioner and the respondent was not proved and her daughter was not a 'child' entitled to claim maintenance under Section 488, Criminal Procedure Code. The respondent filed revision against the order of dismissal of her application, in the High Court. The High Court reversed the order of the Additional First Class Magistrate holding that the respondent was the wife of the petitioner and she was entitled to maintenance at the rate of Rs. 200 per month, but rejected the application of the daughter for maintenance on the ground that she was not a 'child'. The petitioner filed an appeal in the Supreme Court against the order of the High Court. The Supreme Court dismissed the appeal making an observation that the decision of the criminal Court will be subject to the decision of the civil Court, as it was stated at that time 'that a civil suit was pending. The appeal was disposed of by the Supreme Court on 25th March, 1970.

3. When the criminal proceedings were pending, the petitioner filed a suit> O.S. No. 1020 of 1967 in the Court of the III Additional District Munsif, Tim-chirapalli for a declaration that the respondent was not the wife of the petitioner and that the daughter was not born to him. The learned District Munsif by his judgment dated 22nd December, 1970 decreed the suit. This decree was subsequent to the order passed by the Supreme Court dismissing the appeal of the petitioner. Then the petitioner moved the Additional First Class Magistrate's Court praying for cancellation of the order of maintenance in consequence of the decision of the District Munsiff. In the meanwhile, the respondent filed an appeal against the judgment of the District Munsif in A.S. No. 276 of 1971 in the District Court, Tiruchirapalli which is said to be still pending. The learned Additional First Class Magistrate dismissed the application of the petitioner for cancellation of maintenance mainly on the ground that since and appeal had been filed against the judgment of the District Munsif and as that appeal was pending, the judgment of the District Munsif cannot be deemed to be final and, therefore, that judgment cannot be given effect to. Against that order Cr.R.C. No. 1202 of 1971 has been filed by the petitioner.

4. It is well-established that in a case where a statutory appeal was provided, the decision in that case becomes final only on the termination of the proceedings in appeal. If the party aggrieved against the judgment of the trial Court prefers an appeal provided under the statute, until that appeal is disposed of, the judgment of the trial Court cannot be deemed to be final. But if the party aggrieved against the judgment of the trial Court does not prefer an appeal the matter will end there and the judgment of the trial Court being unchallenged, becomes final. An appeal is a continuation of the proceedings in the suit.

5. Sri T.S. Arunachalam, the learned Counsel for the revision petitioner relied upon the decision in K.K. Misra v. Smt. Pratibha Misra (1965) All.L.J. 296. It was held in that decision that the pendency of an appeal can have no effect on a proceeding under Section 489 (2), Criminal Procedure Code. This decision was rendered by a single Judge of the Allahabad High Court. The observation therein which appears to have been made casually is as follows:

Learned Counsel for the respondent has argued that the appeal against the order of the civil Judge is pending in this Court. The pendency of the appeal can have no effect on this proceeding.

With respect, I am unable to agree with this observation. In that decision, there was no discussion about the fact as to when the judgment of the civil Court becomes final, when a statutory appeal is provided. I am of the view that the learned First Class Magistrate was correct in having held that the petition under Section 489 (2), Criminal Procedure Code is premature as the judgment of the civil Court had not become final in view of the appeal pending against the judgment of the District Munsif.

6. In the result, Crl.R.C. No. 1202 of 1971 is dismissed.

7. Crl.R.C. No. 1203 of 1972 : The respondent filed a petition for enforcement of the order of maintenance granted in the criminal proceeding and had claimed a sum of Rs. 600 being the amount due as arrears of maintenance by the revision petitioner. That petition was allowed by the Additional First Class Magistrate, against which this revision petition has been filed. The learned First Class Magistrate found that as the appeal against the judgment of the civil Court was pending and as the judgment had not become final, there was no bar for the respondent to enforce the order of maintenance granted by the criminal Court. I am unable to agree with the view taken by the First Class Magistrate. It is clear that the wife can claim maintenance under Section 488, Criminal Procedure Code, 'so long as she continues to be the wife. The essential condition requisite for claiming maintenance and continuing to claim maintenance by a wife is to maintain her status as the wife. If once a competent civil Court had declared that there was no marriage between the petitioner and the respondent, their relationship as husband and wife if any, is severed by that decision. By the judgment of the District Munsif, it has been declared that the respondent was not the wife of the petitioner. Therefore, from the date of that judgment, subject to the decision in appeal, she ceases to be the wife. It can be said at least that her status as-wife has been suspended pending the decision in appeal. During this period, as the respondent has ceased to be the wife, she cannot enforce the order of maintenance. If she succeeds in the appeal and the judgment of the lower Court is set aside, she will certainly be entitled to claim the arrears of maintenance even during the period when she could not claim maintenance in consequence of the judgment by the trial Court and there will be no bar for such a claim.

8. In the result this petition is allowed.

9. Crl.R. C. No. 1204 of 1971 : This revision relates to the recovery of a sum of Rs. 2,400 being the arrears of maintenance due to the respondent. Arrears of maintenance up to the date of decision of the civil Court were paid by the petitioner to the respondent in this Court. This petition is, therefore, allowed.


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