Ramalingam vs Dhanam and 3 Others

Padmini Jesudurai, J.—This revision has been filed by the husband in maintenance proceedings, challenging the order of transfer passed by

the learned Chief Judicial Magistrate, withdrawing to his file M.C.3 of 1986, filed by the petitioner under S.127, Cr.P.C. as well as Crl.M.P.2393

of 1985, filed by the respondents for recovery of arrears of maintenance and pending before the Judicial Second Class Magistrate No. 1, Salem.

The respondents, who are the wife and three children of the petitioner filed M.C.3 of 1981 in the Court of the Judicial First Class Magistrate,

Salem, seeking maintenance. After due enquiry, maintenance was ordered on 7.12.1983 at the rate of Rs. 50/- to each one of the respondents,

since the petitioner, who is a postman in Salem committed default in the payment of maintenance, the respondents filed Crl.M.P.2373 of 1985 in

the Court of the Judicial Second Class Magistrate No. 1 Salem for the arrears from 7.10.1984 to 7.10.1985. The respondents filed Crl.M.P.296

of 1987 under S.410, Crl.P.C. in the Court of the Chief Judicial Magistrate, Salem for transfer of Crl.M.P.No.2373 of 1985 to the Court of the

Judicial First Class Magistrate, Salem, so that the petitioner might not protract the execution proceedings by absenting himself in that court. The

learned Chief Judicial Magistrate felt that both the matters could be heard together, but since the file of the Judicial First Class Magistrate was

already heavy, he withdrew both the matters to his court. Aggrieved with this order and contending that legally it is untenable and the learned Chief

Judicial Magistrate had already made certain observations against the petitioner in his order, this Revision has been filed.

The respondents, though served, have not entered appearance through any counsel, nor are they present. Thiru N. Paul Vasanthakumar, from

the Legal Aid and Advice Board, Madras was appointed by this court, to represent the respondents in this matter.

Thiru K.V. Sridharan, the learned counsel for the petitioner submitted, that the court that had passed the initial order under S.125, Cr.P.C.

alone is competent to modify or cancel under S.127, Cr.P.C. its earlier order and in the instant case, the order passed by the Judicial First Class

Magistrate, Salem cannot be modified or altered by the Chief Judicial Magistrate, Salem. Reliance was placed upon a decision of a learned Judge

of the Bombay High Court at Nagpur in a Vithalrao Marotrao Awadhut Vs. Ratnaprabha Awadhut and Others, . The learned counsel therefore,

urged that M.C.3 of 1986 had to go back to the Court of the Judicial First Class Magistrate, Salem.

Per contra, Thiru N. Paul Vasanthakumar submitted that Criminal M.P.296 of 1987 had been filed under S.410, Cr.P.C, which deals with

withdrawal of cases by the Chief Judicial Magistrate to his file and S.127, Cr.P.C. is subject to S.410, Cr.P.C. and as such; there was no illegality

in the impugned order and this revision has been filed merely to protract the proceedings and the object of the petitioner had been achieved in that,

and for the maintenance sought for, on 7.12.83, the petitioner has paid a paltry sum, leaving the respondents to starve.

The question that arises for consideration is whether the order of the learned Chief Judicial Magistrate suffers from any illegality or error, so as

to call for interference by this court under its revisional jurisdiction..

The facts are admitted. The order of maintenance passed in favour of the respondents who are the wife and three children of the petitioner, had

become final. The amount ordered was Rs. 50/- for each respondent. The petitioner is a postman in Salem. When Crl.M.P.2373 of 1985 had

been filed for arrears of maintenance, the petitioner had immediately filed M.C.3 of 1986 to cancel the order of maintenance. His filing M.C.3 of

1986 has nothing to do with the maintenance already ordered and which were due from him then. The petitioner was bound to pay maintenance at

the rate ordered by the criminal court, till the order was modified or cancelled. There was no need for linking Criminal M.P.2373 of 1985, filed for

collecting the arrears of maintenance and M.C.3 of 1986. It is stated in Crl.M.P.296 of 1987 that the petitioner while prosecuting his M.C.3 of

1986, was evading and in Crl.M.P.2373 of 1985 and because of that Crl.M.P.2373 of 1985 was kept pending without any collection and the

respondents thought a transfer petition would better their lot.

The legal contention of the learned counsel for the petitioner cannot be accepted. The decision relied on by him is only to the effect that once an

application, under S.125 Cr.P.C. has been rejected, it is not open to the parties to file another petition before any other having co-extensive

jurisdiction. The learned Judge of the Bombay High Court held so, since an order under S.127, Cr.P.C. would have the effect of cancelling or

modifying the earlier order passed under S.125, Cr.P.C. and another magistrate having co-extensive jurisdiction ought not to be permitted to

cancel or modify the order passed by the first Magistrate.

Under the impugned order, the learned Chief Judicial Magistrate, under S.410 Cr.P.C. has withdrawn M.C.3 of 1986 and Crl.M.P.2373 of

1985 to his file. S.127 Crl.P.C. is subject to S.410 Cr.P.C. The learned Chief Judicial Magistrate, therefore, was not in error in withdrawing both

the matters to his file. However, Crl.M.P.2373 of 1985 is for collection the arrears from 7.10.1984 to 7.10.1985 there was no necessity to link

this petition along with M.C.3 of 1986. If and when the petitioner succeeds in M.C.3 of 1986 and the earlier order is either modified or cancelled,

such modification or cancellation would come into force. The order in M.C.3 of 1986 cannot have any retrospective effect. Both these matters,

therefore, are in no way connected and there was no necessity to bring them both before the same forum. If the petitioner is attending the Court of

the Judicial First Class Magistrate to prosecute his M.C.3 of 1986 and absenting himself from attending the Court of the Judicial Second Class

Magistrate No. 1, Salem for Crl.M.P.2393 of 1985, the learned Magistrate shall take coercive steps to collect the arrears of maintenance. The

petitioner shall not be allowed to play hide and seek with courts. By his conduct, he has successfully prevented the respondents, who are his wife

and minor children from collecting the meagre amount of maintenance ordered by the Criminal Court.

It is stated that the petitioner is a postman, drawing a monthly salary. This court in Shanmugham v. Andal Shanthi has held that the salary of the

husband can be attached for payment of maintenance in the manner provided under S.421 (1) (a) of the Criminal Procedure Code. The future

salary of the petitioner, therefore, can be attached by a prohibitory order as laid down in the above decision of this court and the maintenance

could be collected in that way. Apart from depositing Rs. 1000/- as ordered by this court as a condition precedent to grant of stay, it is not known

whether the petitioner has paid any amount thereafter. The learned Magistrate, therefore, shall collect the arrears of maintenance in the manner

provided in the above said decision of this court in Shanmugham v. Andal Shanthi 1989 L.W.Cri. 513.

In the result, this Revision is allowed, Crl.M.P.2373 of 1985 will be sent back to the court of the Judicial Second Class Magistrate No. 1,

Salem and M.C.3 of 1986 is sent to the Court of the Judicial First Class Magistrate, Salem for disposal according to law.