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Bench: JUSTICE Pratap Singh

S. RAGENDRAN Vs. REVATHY On 15 March 1993

Law Point:
Order of maintenance made — Matter compromised — Lived together for some time. Cannot execute the order of maintenance — No order of cancellation.





The respondent in C.M.P. No. 1100/92 on the file of Judl. Magistrate-I, Villupuram has filed this petition under Section 482 Cr.P.P. to call for the records in the above case and to quash the same.

2. Short facts are : The respondent has filed a petition for maintenance against the petitioner under Section 125 Cr.P.C. in M.C. No. 232/85 on the file of Judl. Magistrate, Vilupuram. After enquiry, the learned Magistrate has passed an order awarding maintenance at the rate of Rs. 350/- per month. Subsequently, the respondent again filed M.C. No. 12/92 on the file of Judl. Magistrate-I, Vilupuram, under Section 125 Cr.P.C. praying for maintenance at the rate of Rs. 500/- per month, on the allegation that since the order of maintenance passed in M.C. No. 232/85, the respondent filed C.M.P. No. 1100/92 to realise the arrears of maintenance during the pendency of that petition, the petitioner paid part of the amount and made an offer to live together and believing the promise she agreed to live together and settled the case. It is further alleged that for some time the petitioner was living with the respondent and then again he began to ill-treat her and ultimately drove her out, asking her to get Rs. 20,000/- from her parents. The respondent’s parents gave Rs. 20,000/- and settled them at Nagapattinam. Even thereafter, the respondent was ill-treating her and finally he drove her out on 5.6.1992. So she has filed that petition for maintenance. It appears that during the course of enquiry in M.C. No. 12/92 while the respondent gave evidence as P.W. 1. her evidence was stopped, half way and order was passed permitting her to withdraw the petition. Thereafter she has filed C.M.P. No. 1100/92 to realise the arrears of maintenance.

3. Mr. K. Ramachandran, learned Counsel for the petitioner, would submit that inasmuch as the respondent had compromised the matter with the petitioner and lived together from 1989-92, she cannot thereafter execute the order passed in M.C. No. 232/85 by filing this petition in C.M.P. 1100/92 for realising the arrears of maintenance. Per contra Mr. T. Dhanya Kumar, learned Counsel for the respondent, would submit that the order of maintenance passed in M.C. No. 242/85 still stands and it did not get erased for the reason that the spouses lived together for some period, after the passing of the award in M.C. No. 232/85.

4. I have carefully considered the submissions made by the learned Counsels. If award of maintenance is to be cancelled under Section 125 Cr.P.C., it can be done only by resorting to Section 125(5) Cr.P.C. by an order of the Magistrate. Section 125(5) reads as follows :

“On proof that any wife in whose favour an order has been made under this Section is living io adultery, or that without sufficient reason she refuses to live with her husband or that they are living separately by mutual consent, the Magistrate shall cancel the order.”

In the present case, there is no order cancelling the maintenance passed in M.C. No. 232/85. The question to be noted is that the grounds now raised by the learned Counsel for the petitioner are not the reasons for which the order of maintenance can be cancelled under Section 125(5) Cr.P.C.

5. Mr. T. Dhanyakumar, learned Counsel for the respondent, would rely upon Bhupinder Singh v. Daljit Kaur, AIR 1979 SC 442, wherein the Apex Court has held that an order passed under Section 125 Cr.P.C. must be founded on a provision in the Code. Section 125 is a provision to protect the weaker of the two parties, namely, the neglected wife. If an order for maintenance has been made against the deserter, it will operate until vacated or altered in terms of the provisions of the Code itself. If the husband has a case under Section 125(4), (5) or Section 127 of the Code it is open to him to initiate appropriate proceedings. But until the original order for maintenance is modified or cancelled by a higher Court or is varied or vacated in terms of Section 125(4) or (5) or Section 127, its validity survives. It is enforceable and no plea that there has been cohabitation in the interregnum or that there has been a compromise between the parties can hold good as a valid defence. The Apex Court has laid the law as above. Therefore, the grounds urged by Mr. K. Ramachandran, learned Counsel for the petitioner cannot stand.

6. In the result, this petition fails and shall stand dismissed.

Petition dismissed.

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