Court:Kerala High Court
Bench: JUSTICE M.R. Hariharan Nair
Saroja Vs. Janardhanan on 15 June 2001
Section 127(2) – Cancellation of order granting maintenance. There is no justification for continuing to provide maintenance to wife and child invoking power under section 125 of CrPC.
1. The revision petitioners are another and child, who were affected by a decision of the Sessions Judge, Palakkad reversing the finding in M.C. No.43/91 passed by the Additional Judicial First Class Magistrate, palakkad. As per the order of the said Magistrate, the husband’s application for cancellation of an earlier order for maintenance was dismissed; but the impact of the order of the Sessions Judge is that the maintenance granted in M.C. No.27/81 is rendered unenforceable albeit with prospective effect.
2. More details: M.C. No. 27/81 was filed by the present revision petitioners before the Chief Judicial Magistrate’s Court, Palakkad seeking maintenance for the wife and child. The court allowed maintenance to them at the rate of Rs. 180/- and Rs. 100/- per menses respectively. O.P. No. 39/80 had been filed by the respondent herein seeking dissolution of marriage in the Sub Court, Palakkad and in I.A.No.3265/80 order for permanent alimony had been sought for by the petitioners. When O.P.No.39/80 was subsequently dismissed, the aforesaid I.A. seeking alimony was also dismissed stating that there was no evidence. The matter was taken up in appeal to the District Court, Palakkad through A.S.No.144/81. The appeal was dismissed and that was the subject matter of S.A.No.115/83 of this Court. On 3.10.1988 this court found that the orders impugned did not suffer from any materia defect but taking into account the plight of the wife and child it was directed that a sum of Rs. 5,000/- should be deposited in the name of the child int here instalments and that the present respondent should also deposit Rs. 2,000/- in the name of the child every year.
3. After the aforesaid judgment was passed by this Court, the respondent filed M.C.No.43/91 seeking cancellation of the earlier order directing maintenance passed in M.C.No.27/81. This motion was under S. 127(2) of the Cr.P.C. The learned Additional Judicial First Class Magistrate found that there was no justification for modifying the earlier order and accordingly dismissed the said petition. In revision, the learned Sessions Judge, Palakkad ordered on 31.3.1995 that the findings of the civil court are binding on the criminal court and that the impact of denying permanent alimony to the wife and child is that they are not entitled to maintenance under the criminal law also. Taking that view, the order of the Judicial First Class Magistrate was reversed and the order granting maintenance passed by the Chief Judicial Magistrate in M.C. No. 27/81 was cancelled.
4. The learned counsel for the revision petitioners submitted that there was absolutely no justification for interfering with the order of the Judicial First Class Magistrate and that this is not a case where a regular suit or petition was filed seeking maintenance before the Court either under the Hindu Adoptions and Maintenance Act or otherwise and that an observation made by this Court while disposing of S.A. No.115/93 should not stand in the way of the criminal court considering maintenance for the wife and child independently. During arguments, the learned counsel also placed reliance on S. 25 of the Hindu Marriage Act in this regard.
5. Ss. 25(1) and 25(2) of the Act are quoted hereunder:
“25. Permanent alimony and maintenance.-(1)Any court exercising jurisdiction under this Act may, at the time of passing any decree or at any time subsequent thereto, on application made to it for the purpose by either the wife or the husband, as the case may be, order that the respondent shall pay to the applicant for her or his maintenance and support such gross sum or such monthly or periodical sum for a term not exceeding the life of the applicant as, having regard to the respondent’s own income and other property, if any, the income and property of the applicant, it may seme to the court to be just, and any such payment may be secured, it necessary, by a charge on the immovable property of the respondent.
(2) If the court is satisfied that there is a change in the circumstances of either party at any time after it has made an order under sub-s. (1), it may, at the instance of either party, vary, modify or rescind any such order in such manner as the court may deem just”.
6. Even though, at the first blush, it would appear that under S. 25(2) of the Act civil courts will have the power to order alimony even after dismissal of a proceeding under the Act as it happens in the present case, the correct position as declared by the Apex Court in Chand Dhawan v. Jawaharlal Dhawan (1993 Crl.L.J. 2930) is that the power of the court to grant alimony is confined to cases where the court intervenes and effects disruption of the martial status. If such a relief is granted by the civil court, it would also have power to subsequently vary the order for alimony invoking power under S.25(2) of the Act. In contrast, where the relief of dissolution of marriage is denied by the court thereby allowing the marital status to continue, a Hindu wife, who is admitted that status, can live in separation from her husband and in that event, her claim maintenance cannot be allowed under S. 25(1), though it is preserved under S.18(1) of the Hindu Adoptions and Maintenance Act. It was also held that the court is not at liberty to grant relief of maintenance simpliciter obtainable under on act in proceedings under the other.
7. As far as the present case is concerned, the relief of divorce sought by the husband in O.P.No.39/80 was disallowed by the court. This is not, therefore, a case where variance of the order passed in I.A.No.3265/80 as modified by the judgment of this Court in S.A.No.115/83 can be allowed under S.25(2) of the Act. If there is change of circumstances, the right of the petitioners appear to be to proceed under S. 18(1) of the Hindu Adoptions and Maintenance Act only.
8. It cannot be said that the directions of this Court in the judgment in S.A.No.115/83 can be ignored by the criminal court. The learned sessions Judge has dealt with the aspect in elaborate detail and found that the orders of the civil court have a bearing on the criminal court as well and that in the circumstances, there is no justification for continuing to provide maintenance to the wife and child invoking power under S. 125 of the Cr.P.C. Variance of the earlier order was hence rightly allowed invoking power under S. 127(2) of the Cr.P.C.
9. I find no illegality, irregularity or incorrectness in the said finding of the learned Sessions Judge. Leaving open the right of the petitioners available under the Hindu Adoptions and Maintenance Act, the revision is dismissed.
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