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1990 DIGILAW 1036 (MAD)

Selvamani and Another v. Jagannathan

1990-11-19

JANARTHANAM

body1990
Judgment : Petitioners 1 and 2 respectively claiming to be wife and minor son of respondent, filed M.C.No.94 of 1985 on the file of Judicial First Class Magistrate, Mettur Dam, claiming maintenance under Sec.125, Cr.P.C. 2. The respondent resisted the petition on manifold grounds. They are: 1. The first petitioner is not at all his wife, in the sense that he never married her at any point of time. 2. In any event he never lived with her and therefore there is no question of the second petitioner being construed as his minor son who was born out of illegitimate relationship. 3. She was living with one Balakrishnan @ Rajendran and out of that clandestine relationship, the second petitioner was born. 3. Learned Magistrate, on consideration of the materials placed before him, dismissed the petition. The petitioner aggrieved by such an order preferred Criminal Revision Petition No. 19 of 1986 before the Court of Session, Salem and learned Second Additional Sessions Judge, on consideration of the materials available on record and on hearing the arguments advanced by both the counsel, dismissed the revision and confirmed the order of the trial Magistrate, giving rise to the present action, invoking the inherent jurisdiction of this court, by the petitioners. 4. Learned counsel for the petitioners would urge the following points for consideration: 1. The trial as well as the revisional Court omitted to construe the salutary effect of Ex.P-4, which is a certified copy to the judgment in H.M.O.P.No.44 of 1985, on the file of the Additional Sub Court, Salem, ordering the petition on 17. 1985 by granting restitution of conjugal rights to the first petitioner-wife, after duly recognising the status of the first petitioner as the wife of the respondent and this caused prejudice to the cause of justice, in the sense of both the courts below negativing the right of maintenance as claimed by the first petitioner-wife, for herself and on behalf of her minor son, the second petitioner. 2. The trial Court has grievously erred in allowing the petitioners to let in evidence first, when especially the case of the respondent has been that she was living in adultery and in such a situation the proper procedure to have been adopted is to allow the respondent-husband to adduce evidence first in point of time, thereby giving an opportunity to the first petitioner-wife for adducing rebuttal evidence. .3. .3. In anticipation of an argument emerging from the other side that the present action under Sec.482 of Cr.P.C. is not maintainable inasmuch as there is a legal bar under Sec.397(3), Cr.P.C. what is projected is that the inherent power of this court cannot be whittled down or taken away, if there is a glaring injustice committed by the Courts below. 4. Learned Counsel appearing for the respondent would however repel such submissions. 5. I may now give my anxious consideration to the submissions of either counsel. 6. There is no manner of doubt whatever that the first petitioner filed H.M.O.P.No.44 of 1985 on the file of the First Additional Sub Court, Salem, praying for restitution of conjugal rights. The sordid fact is that the said H.M.O.P. resulted in the passing of an order ex part on 17. 1985, recognising the claim of the first petitioner herein as the wife of the respondent. The order of the trial court negativing the claim of maintenance was passed on 20.1.1986, which is long subsequent to the order of the Civil Court as referred to earlier. The trial Court simply referred to this aspect of the matter in the submission of facts, but no attempt had been made during the course of discussion, to refer to this document and consider its effect. The revisional Court, of course did make an attempt in discussing the legal consequences flowing from this document. But rather unfortunate it is that such a discussion is not at all reflecting the legal position. Learned Second Additional Sessions Judge was swayed by the factum of the decree under Ex.P-4, being an ex parte one for setting aside the same, an application resorted to be taken by the respondent, was pending then. On this grand learned Judge found that the decree under Ex.P-4 is of no use in advancing or improving the case of the first petitioner-wife in proof of her marital status with the respondent. That sort of a finding, in the very nature of things, is perverse. Ex parte decree is a decree first though not a decree passed on merits after contest. Consequently, the legal consequences flowing from the decree passed under Ex.P-4 will be that the first petitioner has to be recognised for all practical purposes as the legally wedded wife of the respondent. Ex parte decree is a decree first though not a decree passed on merits after contest. Consequently, the legal consequences flowing from the decree passed under Ex.P-4 will be that the first petitioner has to be recognised for all practical purposes as the legally wedded wife of the respondent. The legal position on this aspect of the matter, if properly understood by the revisional court, certainly it would not have given such a finding. .7. The second submission of learned counsel for the petitioners revolves on the question of the procedure adopted by the trial Magistrate for adduction of evidence. A perusal of the records would point out that the first petitioner-wife had been allowed to let in evidence. In this case the respondent-husband slyly introduced an averment in his counter that she had been living with one Balakrishnan @ Rajendran and out of such clandestine relationship the second petitioner was born. This allegation would amount to charging the first petitioner-wife as living in adultery, possibly with a view to negative her claim for maintenance in case the court comes to the conclusion that she was the legally wedded wife of the respondent. In such a circumstance, the respondent-husband alone should have been allowed to adduce evidence first in point of time before the first petitioner-wife was given an opportunity to let in any evidence on or behalf. Only if such a procedure is adopted there could have been real opportunity for the first petitioner-wife, against whom an accusation of her living in adultery had been made to rebut such an evidence. In such circumstances, it cannot be stated that the procedure adopted by the trial Magistrate is reflecting the real legal position. 8. The third submission is on the question of the maintainability of the present action. Learned counsel for the respondent would draw my attention to the salient provisions contemplated under Sub-sec.(3) of Sec.397, Cr.P.C. The sub-section prescribes that if an application under this section has been made by any person either to the High Court or to the Sessions Judge, no further application by the same person shall be entertained by the other of them. Learned counsel for the respondent would draw my attention to the salient provisions contemplated under Sub-sec.(3) of Sec.397, Cr.P.C. The sub-section prescribes that if an application under this section has been made by any person either to the High Court or to the Sessions Judge, no further application by the same person shall be entertained by the other of them. Since the revision had been admittedly entertained by the Sessions Judge, learned counsel for the respondent would say, there is no question of any further revision before this court or an action under Sec.482, Cr.P.C. to defeat the bar created by Sub-sec.(3) of Sec.397, Cr.P.C. 9. In support of such a contention implicit reliance is sought to be placed on the decision reported in Rajankumar Machananda v. State of Kamataka, 1990 S.C.C. (Crl) 537, wherein their Lordships of the Supreme Court laid down as follows: “Where a revision petition is dismissed by the Sessions Court, a second revision would not lie to the High Court, Merely by saying that the jurisdiction of the High Court for exercise of its inherent power was being invoked, the statutory bar could not have been overcome. If that was to be permitted, every revision application facing the bar of Sec.397(3) of the Code could be labelled as one under Sec.482”. 10. Learned counsel for the petitioners at this juncture would intrude and submit, as earlier stated, that there is no total ban on the exercise of the inherent power, where abuse of process of Court or other extraordinary situation excites this Court’s jurisdiction. He would also invite my attention to certain decisions of the apex of the Judicial administration of the country. In Rajkapoor and others v. State (Delhi Administration) and others, A.I.R. 1980 S.C. 258. Their Lordships of the Supreme Court laid down as follows: “The inherent power of the High Court under Sec.482 does not stand repelled when the revisional power under Sec.397 overlaps. Nothing in the Code not even Sec.397 can affect the amplitude of the inherent power preserved in so many terms by the language of Sec.482. Even so, when a specific provision is made easy resort to inherent power is not right except under compelling circumstances. Not that there is absence of jurisdiction but that inherent power should not invade areas set apart for specific power under the same Code. Even so, when a specific provision is made easy resort to inherent power is not right except under compelling circumstances. Not that there is absence of jurisdiction but that inherent power should not invade areas set apart for specific power under the same Code. There is no total ban on the exercise of inherent power where abuse of the process of the court or other extraordinary situation excites the court’s jurisdiction. The limitation is self-restraint, nothing more. The policy of the law is clear that interlocutory orders, pure and simple, should not be taken up to the High Court resulting in unnecessary litigation and delay. At the other extreme, final orders are clearly capable of being considered in exercise of inherent power, if glaring injustice stares the court in the face. In between is a tertium quid, as for example, where it is more than a purely interlocutory order and less than a final disposal. In such case the inherent power can be exercised”. 11. In Madhu Limaye v. State of Maharashtra, A.I.R. 1978 S.C. 47. Their Lordships of the Supreme Court held down as follows: “The bar under Scc.397(2) will not operate to prevent the abuse of the process of the court and or to secure the ends of justice. The label of the petition filed by an aggrieved party is immaterial. The High Court can examine the matter in an appropriate case under its inherent powers. Amar Nath v. State of Haryana, 1977 Crl.L.J. 1891: (1977)4 S.C.C. 137 :1977 S.C.C. (Crl.) 585: A.I.R. 1977 S.C. 2185, held not correctly decided. It was held that the instant case undoubtedly falls for exercise of the power of the High Court in accordance with Sec.482 of the 1973 Code, even assuming, although not accepting that invoking the revisional power of the High Court is impermissible.” 12. On the consideration of the aforesaid decisions of the Supreme Court, it is crystal clear that the inherent power of this court can always be exercised where abuse of process of Court or other extra-ordinary situation excites Court’s jurisdiction, and the limitation is self-restrained and nothing more. In the case on hand there was a glaring injustice being caused to the petitioners, because of improperly construing the salutary effect of the ex parte decree granted under Ex.P-4 in favour of the first petitioner-wife. In the case on hand there was a glaring injustice being caused to the petitioners, because of improperly construing the salutary effect of the ex parte decree granted under Ex.P-4 in favour of the first petitioner-wife. As already stated if this has been properly construed, the result would have been otherwise. In this view of the matter the petition deserves to be allowed. 13. In the result, the petition is allowed. The orders of the revisional as well as the trial court are set aside and the matter is remanded to the trial court for fresh consideration, without being influenced by any of the observations made in this order.