Nagendra Iyer v. Premavathi and Others — 1972 DIGILAW 741 (MAD)

Judgment :- Nagendra Iyer, who is the petitioner in both these cases, is the husband of Saraswathi Ammal, the first respondent in Cr.R.C. No. 1221 of 1970 and the father of Premavathi, the second respondent in Crl.R.C. 1221 of 1970 and the respondent in Cr.R.C. No. 677 of 1970. In M.C. 7 of 1957 on the file of the Additional first Class Magistrate No. 2. Salem, the wife and daughter of the petitioner filed a petition under Section 488 Crl.P.C. in pursuance of which the Court by its order dated 11-4-1957 directed the petitioner to pay them a monthly maintenance allowance of Rs. 35/- for the wife and Rs. 15/- for the daughter, whereupon the petitioner instituted a suit in the District Munsif's Court. Salem, praying for a declaration that his wife and daughter were not entitled to maintenance or in the alternative, for fixing the amount of maintenance in accordance with S. 23 of the Hindu Adoption and Maintenance Act. This suit was dismissed by the District Munsif, whereupon the petitioner preferred an appeal in A.S. No. 46 of 1959 on the file of the Sub Court, Salem, and the Sub Court granted a decree under Section 23 of the Hindu Adoption and Maintenance Act, declaring that the wife and daughter of the petitioner were entitled to a consolidated maintenance of Rs. 50/- per mensem. Thereafter the petitioner filed M.C. 100 of 1970 on the file of the Additional First Class Magistrate No. I, Salem, praying that the order of the Additional First Class Magistrate, No. 2 Salem, in M.C. 7 of 1957 be cancelled inasmuch as the right of the parties and the quantum of maintenance had been settled by the Civil Court. The learned Magistrate, after hearing the parties, dismissed this petition. Against this order of dismissal, the petitioner has filed Crl.R.C. 1221 of 1970. In Crl.M.P. 26 of 1970 on the file of the Additional First Class Magistrate No. 2 Salem, Premavathi, the daughter of the petitioner, applied for increased maintenance due to the increase in the cost of living as well as due to the need of meeting her expenses of college education. In Crl.M.P. 26 of 1970 on the file of the Additional First Class Magistrate No. 2 Salem, Premavathi, the daughter of the petitioner, applied for increased maintenance due to the increase in the cost of living as well as due to the need of meeting her expenses of college education. The petitioner filed Crl.M.P. 384 of 1970 in Crl.M.P. 26 of 1970 on the file of the Additional First Class Magistrate No. 2 Salem, contesting the maintainability of Premavathi's petition on the ground that inasmuch as the Civil Court's order had decided the quantum of maintenance for Premavathi and her mother, the criminal court ceased to have jurisdiction to grant any relief under Section 488 Crl.P.C. for enhanced maintenance. This petition was rejected by the learned Magistrate. Against this order of rejection, the petitioner has filed Crl.R.C. 677 of 1970. 2. The first question that arises for determination is whether the decree passed by the Sub Court, Salem, fixing the quantum of maintenance payable by the petitioner to his wife and daughter ipso facto ousts the jurisdiction of the criminal Court. Inclusion of Sections 488 to 499 Crl.P.C. in Ch. XXXVI Crl.P.C. has a high social purpose and is intended, on public grounds to prevent destitution. Under these provisions, deserted wives and children are enabled to resort to the criminal court and get a cheap and expeditious relief. But for these remedies, they would be compelled to resort to the cumbrous and more time consuming process of Civil law. It must not however be forgotten that the proceedings before the criminal Court are summary in character, and its jurisdiction is auxiliary to that of the Civil Court, which is the final arbiter in the matter of adjudication and as well as upon the Civil status of the parties concerned. Before 1923 some High Courts held that the effect of the order of a Civil Court granting restitution of conjugal rights would automatically put an end to a previous order made by the Magistrate under Section 488 Cr.P.C. Evidently this view was based on the assumption that the Civil Court has a jurisdiction which overrides that of the Criminal Court. Before 1923 some High Courts held that the effect of the order of a Civil Court granting restitution of conjugal rights would automatically put an end to a previous order made by the Magistrate under Section 488 Cr.P.C. Evidently this view was based on the assumption that the Civil Court has a jurisdiction which overrides that of the Criminal Court. It was to obviate the effect of this view, that by Act 18 of 1923, Section 489 Cr.P.C. was amended by incorporating in it Sub-section (2), which reads as follows :- "Where it appears to the Magistrate that in consequence of any decision of a competent Civil Court, any order made under Section 488 should be cancelled or varied, he shall cancel the order or, as the case may be, vary the same accordingly." * A reading of this sub-section makes it clear that the fact that a competent Civil Court has given a decision, does not automatically put an end to the jurisdiction of the criminal Court or wipe out an order made by the criminal court under Section 488 Cri.P.C. A discretion is given to the Magistrate to cancel or vary the order under Section 488 Crl.P.C. if he is satisfied (1) that the decision of the Civil Court, is that of a competent Court, (2) that such a decision has bearing upon the order of criminal Court under Section 488 Crl.P.C. and (3) that the effect of such a decision is to cancel or vary the order of the criminal Court under Section 488 Cr.P.C. Unless these three conditions exist, the Magistrate is not obliged to cancel or vary the order under Section 488 Crl.P.C. But while applying these three conditions to the facts of a given case and before coming to a decision as to whether an order must Section 488 Crl.P.C. should be cancelled or varied, the discretion of the Magistrate comes into play and it must be exercised judicially and wisely. There may be a bewildering variety of circumstances in which the magisterial discretion will have to be exercised and it is not proper or wise for this court to traverse the whole gamut of possibilities and lay down how that discretion ought to be exercised in a given situation. There may be a bewildering variety of circumstances in which the magisterial discretion will have to be exercised and it is not proper or wise for this court to traverse the whole gamut of possibilities and lay down how that discretion ought to be exercised in a given situation. Take, by way of illustration a case where a competent Civil Court has rendered judgment negativing or putting an end to the status of husband and wife or father and child; it would be the plain duty of the Magistrate to respect this judgment and to cancel the order under Section 488 Crl.P.C. Where husband gets a decree from the Civil Court for restitution of conjugal rights, and it is found that he is not prepared to offer the wife a home, which she ought to accept, it is open to the Magistrate, if he is dissatisfied with the bona fides of the husband to refuse to cancel the order under Section 488 Crl.P.C. If after the grant of a maintenance decree by the Civil Court the husband or father becomes a pauper or an insolvent and on that ground or similar ground the civil Court refuses to enforce the decree, it will be open to the Magistrate to enforce the order under Section 488 Crl.P.C. if it has previously been passed or to pass an order under Section 488 Crl.P.C. after the date of the Civil Court's decision directing the husband or father to pay maintenance provided he is able-bodied and is in a position to earn by manual labour, and out of his earnings, to support his wife or child-vide Mohamed Ali Mithabhai in re 1930 AIR(Bom) 144 = 1930 (31) CrLJ 609 and Govindasami Mudaliar v. Muthulakshmi Ammal 1966 1 Mad LJ 208 = 1966 CrLJ 732). But the vexed question remains - I am told at the Bar that this is not covered by authority - whether after the parties have submitted to the jurisdiction of the Civil Court and have obtained a judgment fixing the quantum of maintenance payable, it is open to either party to go to the criminal court and ask for alteration in the quantum of allowance under Section 489(1) Crl.P.C. I think it is undesirable for the following reasons : The Civil Court, as I have already held, is the primary arbiter of the Civil rights of parties including the right to maintenance. From the point of view of social purpose, it is certainly right that wives and children should be allowed to resort to the cheaper remedy afforded by the Criminal Court before there is a final adjudication by the Civil Court. But once the Civil Court has adjudicated upon the rights of parties, and fixed the quantum, and it is still open to the parties, on proof of a change in the circumstances, to ask the Civil Court itself to alter the quantum of the allowance. I fail to see why the parties should be allowed thereafter to resort to the summary, and what I may call, the emergency jurisdiction of the Criminal Court for this purpose. It may be that where the quantum of maintenance fixed by the Civil Court and the Criminal Court is the same and where on account of insolvency or otherwise the civil court should refuse to execute the decree against the husband or father, it would be proper for the criminal court, after a consideration of the relevant circumstances to enforce the order under Section 488 Crl.P.C. But where no such handicap exists in enforcing the Civil Court decree, the Criminal Court would be judicially exercising its discretion in refusing to enforce its order concurrently with the decree of the Civil Court. Likewise, where the parties can have the quantum of maintenance fixed by the Civil Court varied by the Civil Court itself on proof of relevant circumstances, the Magistrate will be exercising his discretion judicially by refusing to reduce or enhance the allowance under Section 489(1) Crl.P.C. otherwise, the parties will be engaged in an unholy competition to exploit the concurrent jurisdiction of the civil and criminal courts and procure from one court orders, which would have the effect of frustrating the orders of the other. In order to prevent conflict of decisions and with a view to avoid an unseemly confrontation between the civil and the criminal courts, the Magistrates will be wise in such circumstances to refuse to reduce or enhance the allowance when there is civil Court's decree fixing the quantum of maintenance and binding upon the parties. The proper thing for the Magistrate to do is to refer the party to the civil Court. 3. In fact, in England, a conflict of this kind arose in a different legal situation. While resolving the conflict between a court of summary jurisdiction under the Guardianship of Infants Act and the Divorce Court, which had the primary jurisdiction, Avory J. said in Rex v. Middlessex Justices, 1933 KB 72 at p. 80 as follows : "The inconvenience of holding that there is concurrent jurisdiction in the Divorce court and in the justices is obvious, for if the Justices may make an order as in this case, there is nothing to prevent the husband going to the Divorce Court the next day and asking, possibly successfully, for a contrary order. The question might see-saw between the two courts, producing an absolute scandal." * 4. In Higgs v. Higgs 1935 LR Pro. Dn. 28 it was held that during the pendency of a petition for divorce in the High Court no order for maintenance should be made under the summary jurisdiction and Maintenance Acts, 1895 to 1925, by a court of summary jurisdiction and although the power of the High Court to order a provision for a wife is not an exclusive power, there is an obvious inconvenience in holding that there is a concurrent jurisdiction in the High Court and in Justices in the matter of ordering a provision for a wife to be made by her husband if proceedings in the Divorce Division are on foot. 5. 5. In Kilford v. Kilford, 1847 LR Pro Dn. 100 the problem was solved in a slightly different way. It was held by Barnard J. that it being undesirable that there should be two orders for maintenance in favour of the same person in existence at the same time, a successful wife petitioner, who has previously obtained a maintenance order from Justices, must elect either to retain that order or to obtain an order in a divorce court. I am quoting these decisions only to illustrate the undesirability of two different forums exercising concurrent jurisdiction in the matter of alteration of maintenance in favour of the same person, especially when that person has submitted to the jurisdiction of the primary civil Court and obtained an order defining the quantum of maintenance payable. The doctrine of res judicata and the doctrine of election have been invoked by the English Courts for the purpose of solving the conflict similar to the one arising before me. But it is not open to me to invoke either of these doctrines in view of the specific provision of Section 489, Sub-section (2) Cri.P.C. a parallel to which is not to be found in the laws of England. I think it, therefore, right to solve the conflict by holding, upon the language of Section 489 Sub-section (2) Crl.P.C. that although the Magistrate has jurisdiction to entertain a petition for alteration of the allowance even after the Civil Court has quantified the maintenance, yet he will not be exercising his jurisdiction judicially if without referring the parties to the Civil Court, he should proceed to consider the altered circumstances with a view to alter the quantum of maintenance already fixed by the civil Court. 6. In the result, I hold that the Magistrate was right in holding that the order passed in M.C. 7 of 1957 did not stand automatically wiped out as a result of the civil court decree. He was, therefore, right in refusing to cancel the order passed in M.C. 7 of 1957. But, if any enforcement of that order is prayed for concurrently with execution of the civil court's decree, he will not be exercising his discretion judicially, if he orders enforcement except, under circumstances which I have already enumerated in this order, viz. in case of insolvency or pauperism. Crl.R.C. 1221 of 1971 will, therefore, stand dismissed. 7. But, if any enforcement of that order is prayed for concurrently with execution of the civil court's decree, he will not be exercising his discretion judicially, if he orders enforcement except, under circumstances which I have already enumerated in this order, viz. in case of insolvency or pauperism. Crl.R.C. 1221 of 1971 will, therefore, stand dismissed. 7. As for the order in Crl.M.P. 384 of 1970, it consists of two parts. One part rejects the plea of the father, Nagendra Iyer, that the criminal Court has lost jurisdiction by virtue of the adjudication made by the Civil Court. This part of the order is correct. But, there is another part of the order whereby the learned Magistrate has decided to proceed with the petition of the daughter in C.M.P. 26 of 1970 for enhancement of her allowance in the teeth of a civil Court's decree binding on her. That part of the order is clearly wrong. He must have referred the daughter to the civil Court for the reliefs she has applied for. I, therefore, set aside that part of the order of the Magistrate, which directs the proceedings in C.M. P. 26 of 1970 to proceed. Crl.R.C. 677 of 1970 is ordered accordingly. 8. Before parting with this case, I record my appreciation of the assistance rendered by Messrs. O. V. Baluswami and S. Nainar Sundaram, both of whom spared no pains to ferret out every available and relevant decision and bring it to the notice of the court.