Graham Mark Rozariio vs Lakshmi

D. Hari Paranthaman, J.—The petitioner herein filed O.S. No.17 of 2010 before the Family Court, Madurai, seeking to declare that the respondent herein is not his wife.

In the said suit, the respondent herein filed I.A. No.21 of 2013 for maintenance under Section 24 of the Hindu Marriage Act. The said I.A. No.21 of 2013 in O.S. No.17 of 2010 was rejected by the Family Court on the sole ground that the suit is not filed under Hindu Marriage Act and therefore, the petitioner therein could not invoke Section 24 of the Hindu Marriage Act. The said order is dated 03.07.2013. Thereafter, the respondent filed M.C. No.17 of 2013 under Section 125 Cr.P.C., before the Judicial Magistrate, Thirumangalam in September 2013, claiming maintenance. Thereafter, the husband has filed this petition seeking to withdraw M.C. No.17 of 2013 from the file of the Judicial Magistrate, Thirumangalam and transfer the same to the Court of Family Judge, Madurai, wherein, O.S. No.17 of 2010 is pending, for joint trial.

The respondent herein has objected the transfer application.

Heard both sides.

The learned counsel appearing for the petitioner has vehemently contended that the issue of marriage has to be determined and therefore, the maintenance case can be tried along with the suit in O.S. No.17 of 2010, seeking declaration that the respondent herein is not the wife of the petitioner herein.

Secondly, it is contended that the maintenance case is not maintainable at Thirumangalam as the respondent is not residing at Thirumangalam.

The learned counsel for the respondent has submitted that only when the Family Court rejected the application for maintenance on the ground that since no proceeding is pending under Hindu Marriage Act, the respondent could not claim maintenance under Section 24 of the Hindu Marriage Act, the respondent invoked Section 125 of Cr.P.C. for maintenance.

It is also submitted that the respondent gave her residential address relating to M.C. No.17 of 2013 at Thirumangalam and if at all, the petitioner has any grievances, he could make those grievances before the Judicial Magistrate, Thirumangalam.

I have heard the submissions made on either side.

The order dated 03.07.2013 made in I.A. No.21 of 2013 in O.S. No.17 of 2010 is placed before me by the respondent. In fact, the order is a short one. Para 6 of the order is as follows:

"Records perused. The petitioner filed this application under Section 24 of the Hindu Marriage Act, claiming maintenance from her husband. As rightly objected by the respondent that he is a Christian and the petitioner is a Hindu. He filed a suit to declare that she is not his wife. No such petition is pending before this Court between the parties under Hindu Marriage Act. Hence the petitioner is not entitled to invoke under Section 24 of Hindu Marriage Act, to get maintenance. Hence, this petition as such not maintainable. Accordingly, the petition is dismissed as no merits." 11. On perusal of the said order, it is very clear that the interim application for maintenance was not considered on merits and the same was rejected only on the ground that no proceeding was pending under Hindu Marriage Act and therefore, the respondent could not invoke Section 24 of the Hindu Marriage Act. In such circumstances, left with no other alternative, the respondent has approached the Judicial Magistrate at Thirumangalam with a petition under Section 125 Cr.P.C., claiming maintenance. Now, the petitioner seeks transfer of the maintenance case to the Family Court, where his suit in O.S. No.17 of 2010 for declaration is pending.

In such circumstances, I am of the view that the proceedings under Section 125 Cr.P.C., is a summary one and the same could be disposed of at a shorter time and the respondent need not wait for the disposal of the suit, for getting maintenance under Section 125 Cr.P.C. Hence, I am not inclined to withdraw the case in M.C. No.17 of 2013 from the file of the learned Judicial Magistrate, Thirumangalam and to transfer the same to the file of the learned Family Judge, Madurai.

Further, the order passed by the Family Court dated 03.07.2013 in I.A. No.21 of 2013 in O.S. No.17 of 2010 is not a bar for the wife to claim maintenance under Section 125 of Cr.P.C., before the Judicial Magistrate, Thirumangalam, since, it was not decided on merits.

The second ground urged by the learned counsel for the petitioner is that the respondent is not within the jurisdiction of Thirumangalam. I have perused the application filed under Section 125 Cr.P.C., by the respondent herein, wherein, she has stated that she is residing at Mallampatti Village, Keelakottai Panchayat, Melakottai Post, Thirumangalam Taluk, Madurai District. The learned counsel for the respondent has also stated that she is residing only at the said address.

It is a disputed question of fact and this Court could not go into that and those issues can be raised before the Judicial Magistrate, Thirumangalam. Therefore, the said ground could not be available for the petitioner seeking transfer.

Accordingly, the petition is dismissed. No costs. Consequently, connected miscellaneous petition is also dismissed.