N.S. Venkatesan vs Sivakami

Pratap Singh, J.—The respondent in M.C.No.154 of 1990 on the file of Additional Family Court, Madras has filed this petition under S.482 Criminal Procedure Code praying to call for the records in the aforesaid M.C.No.154/90 and quash the same.

The respondent herein has filed the petition under S.125 Criminal Procedure Code against the petitioner herein praying for maintenance. The allegations in it are briefly as follows:

The petitioner got married to the respondent on 3.3.85, according to Hindu customs. They were living together just for two months. Subsequently, she was forced to go out of her matrimonial house. The respondent illtreated and deserted her. The petitioner lodged a complaint before Anti Dowry Cell. The respondent filed O.P.No.409/89 for restitution of conjugal rights, it was originally pending before the XIX Assistant Judge City Civil Court, Madras. He gave time and opportunity to her husband to settle the matter outside the court and take her. He refused to comply with the request of the learned Judge. Then the matter was transferred to the file of the Family Court. An ex parte order was passed on 26.11.89. Nonappearance was due to her ill-health. She was hospitalised and is undergoing treatment for T.B. She was admitted on 8.2.89 and discharged on 14.3.90. Even now she is undergoing treatment as out patient and was advised complete bed rest. She has filed petition for setting aside the ex parte order.

The petitioner is unemployed. She is unable to move freely due to her sickness. Her parents find it difficult to maintain her. The respondent is earning not less than Rs. 2,500/- per month. Hence the petitioner is praying for maintenance at Rs. 500/- per month.

Mr. K. Venugopal, the learned counsel appearing for the petitioner would contend that the petitioner has filed petition in H.M.O.P.No.409/89 for restitution of conjugal rights and an ex parte order was passed in his favour on 26.12.89, and it is in force. While so, the respondent herein cannot be asked to pay maintenance in view of S.125 (4) of Criminal Procedure Code whereunder the wife shall not be entitled to maintenance if without any sufficient reasons she refused to live with her husband. He would add that as a consequence of an order of restitution of conjugal rights in his favour, the respondent must come to the matrimonial home or otherwise it would amount to refusal to live with her husband without any sufficient reason, disentitling her to make a claim for maintenance. Per contra, Mrs. Bhagirathi Rangarajan, the learned counsel for the respondent, would contend that an order of restitution of conjugal rights and that too an ex parte order in favour of the husband by itself is not a ground for refusal of maintenance by the husband. She would further contend that S.125 Criminal Procedure Code excludes to some extent the application of any other Act and the exclusion extends to the quantum of maintenance and circumstances under which it could be granted. Thus the question that arises for consideration in this petition is whether an ex parte order obtained by the husband for restitution of conjugal rights is a complete answer to the claim of a wife for maintenance under S.125, Criminal Procedure Code.

Upon proof of neglect or refusal a wife, unable to maintain herself, is entitled to maintenance from her husband. As per S. 125(4) one of the grounds on which a wife is not entitled to receive an allowance from her husband is that if she refuses to live with her husband without sufficient reason. If the husband obtains an ex pane order under S.9 of Hindu Marriage Act for restitution of conjugal rights against his wife and still the wife is not cohabiting, can that by itself be (sic) as refusal of the wife to live with her husband without any sufficient reason is the point to be answered. Mrs. Bhagirathi Rangarajan, the learned counsel for the respondent relied upon the ruling reported in Mst. Zohara Khatoon Vs. Mohd. Ibrahim, in support of her contention that S.125 Criminal Procedure Code carves out an independent sphere of its own and its exclusion extends to quantum of maintenance and circumstances under which it could be granted. In the aforesaid ruling, in para 7, the Apex Court has held as follows:

A perusal of S.488 would clearly reveal that it carves out an independent sphere of its own and is a general law providing a summary machinery for determining the maintenance to be awarded by the Magistrate under the circumstances mentioned in the section. The provisions may not be inconsistent with other parallel Acts in so far as maintenance is concerned, but the section undoubtedly excludes to some extent the application of any other Act. At the same time, it cannot be said that the persona law of the parties is completely excluded for all purposes. For instance, where the validity of a marriage or mode of divorce or cessation of marriage under the personal law of a party is concerned that would have to be determined according to the said personal law. Thus, the exclusion by S.488 extends only to the quantum of the maintenance and the circumstances under which it could be granted.

(Emphasis supplied).

S.488 of the old Criminal Procedure Code corresponds to S.125 of the Criminal Procedure Code, in fact the latter has some features more beneficial to the wives, with some modifications. Hence the above observations would apply to S.125, Criminal Procedure Code also. With regard to the circumstances under which the maintenance is granted, the provisions of S.125, Criminal Procedure Code excludes the provisions of the other Acts. This is not to say that the Criminal Court should simply neglect the order obtained by the husband in the matrimonial court. The court dealing with maintenance claim under S.125 will have to carefully examine and take into consideration such orders also, though as stated above, it is not bound by the findings. The Magistrate need not surrender his own discretion simply because the husband was armed with an ex parte order of a civil court for the restitution of conjugal rights.

In the ruling reported in Gopala Pillai v. Padmini Ammal 1978 Ker Law Times 185, Justice Janaki Ammal has observed as follows:

An order for restitution of conjugal rights by itself is not a ground for refusal of maintenance under S.125 of the Code of Criminal Procedure unless it is made out that the person in whose favour it was made was willing to discharge his obligation as a husband and did not secure the order as a ruse to get rid of the wife in a subsequent proceeding for divorce.

In Sayed Ghulam Sajjad v. Parveen Pattima 1981 Cri.L.J.N.O.C. 2 Justice Ramachandra Raju, of Andhra Pradesh High Court has stated as follows:

A mere decree for restitution of conjugal rights in favour of the husband itself does not automatically bar the wife from claiming maintenance under S.125, though a decree cannot be ignored. The Magistrate has discretion to decide on evidence adduced before him by the parties, whether the wife is entitled to maintenance despite the fact that husband has got a decree for restitution of conjugal rights.

In Fakruddin Shamsuddin Saiyed Vs. Bai Jenab, , the Bombay High Court had occasion to consider the impact of an order of restitution of conjugal rights on an order of maintenance passed under S.488 old Criminal Procedure Code. The wife had obtained an order under S.488 old Cr.P.C. for maintenance. Later, the husband filed a suit for restitution of conjugal rights and obtained an order in his favour. On the strength of the said order, he applied to the Magistrate for revocation of the order for maintenance. The Magistrate declined to revoke the order. Against that order, revision was filed in the High Court. In that way, the matter came up before the Bombay High Court. Chief Justice Beamount has said as follows:

The Magistrate discretion under that section must no doubt be exercised judicially, but, in my opinion it is a real discretion. I think the present applicant is going too far in suggesting that the Magistrate is bound to cancel the order because a civil court has made an order for restitution of conjugal rights. I think the Magistrate is entitled, and indeed bound, to satisfy himself that the applicant is bona fide prepared to give effect to the order of the civil court; that he is prepared to offer the wife a home which she ought to accept. The mere fact that the civil court is satisfied on that point does not justify the Magistrate in surrendering his own discretion. He must be satisfied. Unless he is satisfied, the risk is run of a party having obtained a mere paper decree of a civil court without any intention of giving effect to it.

With those observations, the Division Bench of the Bombay Court has dismissed the revision petition.

Mr. K. Venugopal, the learned counsel for the petitioner relied upon the ruling rendered by Justice Maheswaran, reported in S.R. Govindarajan v. Rukmani Govindarajan 1980 L.W.Crl. 80. In it, it was held that the decree against wife for restitution of conjugal rights is the answer to the wife''s claim for maintenance. Prima fuck, it appears from that facts of that case, that the decree for restitution of conjugal rights was not an ex parte order. The learned counsel further relied upon the ruling reported in Thilakavathi G. v. A. Gunasekaran 1990 L.W. Cri. 32 Summary of Cases. In it, it was held that during the operation of decree for restitution of conjugal rights, the wife will not be entitled to claim maintenance from her husband. Even in this case, the facts disclose that there was a contest in the civil court before a decree for restitution was passed. It is quite true that a concluded ex parte decree is much valid decree binding on the parties as a contested one. But yet cases are not wanting by the husbands to resort to obtaining an ex parte decree for restitution of conjugal rights, not with a bona fide desire to take back the wife but to thwart the summary of maintenance proceedings possibly under S.125 Criminal Procedure Code. There can be no doubt that a civil court decree is binding on the criminal court, but on touching questions, such as wife withdrawing from society of her husband, desertion on her part on his living an adulterous life, will have to be examined by the criminal court, when a decree is ex parte. Since on facts, the case before me is different, the two rulings are not applicable to this case. The ruling of the Apex Court in Zohara Khatoon v. Mohd.Ibrahim AIR 1891 S.C. 1243 referred to supra, was not brought to the notice of the learned Judges in the aforesaid rulings.

In the ruling reported in Malayandi v. Valliammal and others 1991 L.W.(Crl) 211 Justice Arunachalam, had occasion to consider invoking the inherent powers of the High Court under S.482, Criminal Procedure Code in a case where the wife had obtained an award for maintenance under S.125, Criminal Procedure Code in the Magistrate''s Court and which was affirmed by the Sessions Judge. The husband had obtained an ex parte order of restitution of conjugal rights and sought to set aside the order awarding maintenance on the strength of the ex parte order for restitution of conjugal rights. Justice Arunachalam has held that it is not a case where the High Court should invoke the inherent powers under S.482, Criminal Procedure Code.

In view of the observations of the Apex Court, which I have extracted early, I am inclined to hold that an ex parte order for restitution of conjugal rights is not a bar for the wife to claim maintenance under S.125 of the Criminal Procedure Code. In view of the facts and circumstances of the case, I do not accept the contention put forth by the learned counsel appearing for the petitioner.

In view of the above, the petition is dismissed.