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Andhra High Court · body

2005 DIGILAW 835 (AP)

K. Otakki Krupakara Rao v. Kotakki Rajani Sundari

2005-09-02

G.YETHIRAJULU

body2005
O R D E R This revision case is filed by the respondent in M.C.No.11 of 1989 on the file of the Family Court, Visakhapatnam. 2. The revision petitioner is the husband of the first respondent. The first respondent filed the said case under Section 125 Cr.P.C. for granting of maintenance. The learned VII Metropolitan Magistrate, Visakhapatnam, granted Rs.100/- per month to the first respondent through the order dated 26.09.1992. Subsequently, she filed O.S.No.41 of 1995 for maintenance and the suit was decreed on 13.03.1996 granting maintenance of Rs.300/- per month to her two daughters, but the maintenance was denied to the first respondent. The Court in the said suit denied the maintenance to the first respondent on the ground that she is living in adultery. Subsequently, the first res-pondent filed Crl.M.P.No.232 of 1998 in M.C.No.11 of 1989 for enhancement of maintenance from Rs.100/- to Rs.500/- per month. Whereas the revision petitioner filed Crl.M.P.No.585 of 1998 seeking can- cellation of maintenance of Rs.100/- granted to her in M.C.No.11 of 1989. The Family Court disposed of both the CrI.M.Ps. through a common order dated 01.03.1999 by allowing Crl.M.P.No.232 of 1998 granting maintenance of Rs.450/- per month to the first respondent from the date of the order with costs and dismissed Crl.M.P.No.585 of 1998 filed by the revision petitioner for cancellation of maintenance. The revision petitioner being aggrieved by the order of the Family Court, Visakhapatnam, dated 01.03.1999, preferred this revision case, challenging its validity and legality. 3. The learned counsel for the revision petitioner Mr. S.V.R. Subrahmanyam, submitted that subsequent to the granting of the maintenance under Section 125 Cr.P.C., the first respondent filed O.S.No.41 of 1995 for granting of maintenance for herself and her two daughters. The civil Court after giving a categorical finding that the first respondent is living in adultery, refused to grant maintenance to her while granting maintenance to the daughters. He further submitted that the decree in O.S.No.41 of 1995 became final since the first respondent did not prefer any appeal against the said decree. He further submitted that since the civil Court decree prevails over the order of the criminal Court under Section 125 Cr.P.C., the lower Court erred in awarding Rs.450/- per month to the first respondent towards maintenance. He, therefore, requested to set aside the order of the lower Court by ordering cancellation of the maintenance. 4. He further submitted that since the civil Court decree prevails over the order of the criminal Court under Section 125 Cr.P.C., the lower Court erred in awarding Rs.450/- per month to the first respondent towards maintenance. He, therefore, requested to set aside the order of the lower Court by ordering cancellation of the maintenance. 4. The learned counsel for the first respondent Smt. N (P) Anjana Devi submitted that though the decree of the civil Court in O.S.No.41 of 1995, dated 13.03.1996, became final, it will not preclude the first respondent in seeking enhancement of maintenance granted to her in M.C.No.11 of 1989 and as the lower Court enhanced the maintenance in pursuance of the order of the High Court, dated 26.08.1998, in Criminal Petition No.2814 of 1993. The order of the lower Court is not liable to be set aside. She further submitted that the first respondent has no means of livelihood and she is starving and even if there is a finding of the civil Court that she is leading adulterous life, she is entitled for maintenance from the revision petitioner. Therefore, requested to dismiss the revision case by confirming the order of the Family Court, Visakhapatnam. She further submitted that keeping in view of the special circumstances and by virtue of inherent powers of this Court, it is essential to confirm the order of the Family Court. 5. The maintenance order was passed in M.C.No.11 of 1989 on 26.09.1992 granting maintenance of Rs.100/- per month to the first respondent. The revision petitioner did not prefer any appeal or revision against the order of maintenance. But the first respondent filed Criminal Revision Case No. 46 of 1992 before II Additional Metropolitan Sessions Judge, Visakhapatnam, for enhancement of maintenance, but it was dismissed by the said Court. Against the order of the Sessions Court, the first respondent preferred Criminal Petition No.2814 of 1993 before this Court, questioning the order of the Sessions Court. During the pendency of the said petition before the High Court, the first respondent filed O.S. No. 41 of 1995 for granting maintenance to her and her two daughters. Her daughters were granted maintenance, but the maintenance was refused to her through the judgment dated 13.03.1996 declaring that she is living in adultery. She did not prefer any appeal against the decree of the civil Court and it became final. Her daughters were granted maintenance, but the maintenance was refused to her through the judgment dated 13.03.1996 declaring that she is living in adultery. She did not prefer any appeal against the decree of the civil Court and it became final. Subsequently, the High Court disposed of the criminal petition by observing that if there is any change of circumstances like enhancement of salary of the revision petitioner or any other contingencies, it is open for the first respondent to move a petition for enhancement of maintenance under the Code of Criminal Procedure. 6. The Family Court, while passing the impugned order, observed that there is no clear finding of adultery by the civil Court and a stray act or two of adultery does not disentitle the wife from claiming maintenance from her husband. The Family Court further observed that there is a clear evidence showing that the revision petitioner was living in adultery by the date of filing of the maintenance case and gave birth to three children. The revision petitioner kept quite without agitating the point of adultery of the first respondent before the High Court. As per the decision of the High Court, the first respondent is entitled to ask for alteration of maintenance depending upon the enhancement of the salary of the revision petitioner or any other contingency, therefore, the family Court cannot cancel the maintenance urged on behalf of the revision petitioner. The Family Court ignored the civil Court decree on the simple ground that the High Court passed the order in Criminal Petition No. 2814 of 1993 subsequent to the date of the decree, and held that as per the judgment of the High Court in the criminal petition, the first respondent is entitled for maintenance. 7. Section 127 (2) of Cr.P.C 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 125 should be cancelled or varied, he shall cancel the order or, as the case may be, vary the same accordingly.” 8. The above provision mandates as to what the Magistrate is expected to do in consequence of a decision of a competent civil Court regarding the order made under Section 125 of the Cr.P.C. 9. The above provision mandates as to what the Magistrate is expected to do in consequence of a decision of a competent civil Court regarding the order made under Section 125 of the Cr.P.C. 9. The proceedings in the civil Court are substantial, whereas the proceedings under Section 125 of the Cr.P.C., 1973 are of summary in nature. Once the civil Court of competent jurisdiction comes to the conclusion that the wife is not entitled to maintenance, the criminal Court under Section 125 Cr.P.C., cannot sit in an appeal over the said decision. The proceedings under Section 125 Cr.P.C., are not final and the parties can agitate their rights in a civil Court. The legal position in this regard is very clear. 10. In SMT.VANAJAKSHAMMA AND OTHERS V. P.GOPALA KRISHNA(1) the Mysore High Court while considering the scope of Section 489 (2) of the Cr.P.C., 1898, held as follows:- “Even though the criminal Court may come to the conclusion in a proceeding under. Section 498 Cr.P.C., that the parties are husband and wife, if a-civil Court gives a different finding.” 11. The Code extracted under Section 489 (2) of the Cr.P.C., which reads as follows:- “Wherein it appears to the Magistrate that, in a 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.” 12. In M/S.GRISILDA TITUS V. MR.LOUTS TITUS(2) the Madras High Court held as follows:- “For the purposes of Section 489 (2), the Criminal Court should take the decision of the civil Court as it stands and consider the necessary effect of it upon the order passed by the criminal Court. It should not consider whether the decision of the civil Court has altered the circumstances of the case as the Magistrate has found.” 13. In BHAGAWAN DUTT V. SMT. KAMLA DEVI AND ANOTHERS(3) the Supreme Court held as follows:- “As pointed in Thamson’s case 6NWP 205 “the scope of the Chapter XXXVI is limited and the Magistrate cannot, except as there under provided, usurp the jurisdiction in matrimonial disputes possessed by the Civil Courts. In BHAGAWAN DUTT V. SMT. KAMLA DEVI AND ANOTHERS(3) the Supreme Court held as follows:- “As pointed in Thamson’s case 6NWP 205 “the scope of the Chapter XXXVI is limited and the Magistrate cannot, except as there under provided, usurp the jurisdiction in matrimonial disputes possessed by the Civil Courts. Sub Section (2) of Section 489 expressly makes orders passed under Chapter XXXVI of the Code subject to any final adjudication that may be made by a Civil Court between the parties regarding their status and civil rights.” 14. In STATE OF MYSOR V. NAGAPPA AND ANOTHER(4) the Mysor High Court considered the scope of Section 488 (3) and Section 489 (2) of the Cr.P.C., 1898. While holding that the Magistrate has to exercise limited discretion as to whether his order has to be varied or cancelled observed as follows:- “Where after an order for maintenance under Section 488 of the Cr.P.C., in favour of the wife is passed a decree for maintenance is obtained from a Civil Court, the affect of the decree is that the wife cannot be held entitled for any maintenance in pursuance of the order made originally by the magistrate from the date from which the decree of the Civil Court awards her maintenance. Under Section 489 (2) of the Code, the Magistrate can vary or alter the order of maintenance if the circumstances so required. When it is brought to the notice of the magistrate that a decree for maintenance has been passed by the Criminal Court, it is the duty of the Court to consider whether the decision of the Civil Court would lead to the consequence that the order passed by the Civil Court should be cancelled or varied. There is no question of the Magistrate considering whether the decision of the civil Court has altered the circumstances of the case. For the purpose of sub-section (2) of Section 489, the Magistrate should take the decision as it stands and consider the effect of it on the order passed by the criminal Court under Section 488. If the consequence is that it should be varied or cancelled, the effect must be given to it by cancelling or varying the order made under Section 488. The discretion that is given under Section 489 (2) is only for this limited purpose.” 15. If the consequence is that it should be varied or cancelled, the effect must be given to it by cancelling or varying the order made under Section 488. The discretion that is given under Section 489 (2) is only for this limited purpose.” 15. In BHAGWANT SINGH V. SURJIT KAUR(5), the Punjab & Haryana High Court, held that when there is a civil Court decision, the Magistrate has to cancel or vary earlier order under Section 125 of the Cr.P.C.. 1974 and observed as follows:- “Where, the decree of the Civil Court is directly on the issue of the liability or the quantum of maintenance, then it is obviously a judgment of a Court of competent jurisdiction. The opening part of Section 127 (2) of the new Code undoubtedly vests a certain discretion to the Magistrate. He must be satisfied that the decision of the competent civil Court has necessitated a cancellation or variance of the earlier order. However, once he comes to that conclusion, then the language of the provision implies that he has no discretion but to cancel or vary the order in accordance with the civil Court decree. In view of Section 127 (2), it would be obligatory for a Magistrate to follow the judgment of a competent civil Court, specifically on the point of maintenance and, consequently, to cancel or vary the earlier order of the Criminal Court under Section 125 of the new Code, accordingly.” 16. In MURALIDHAR CHIN-THAMAN WAGHMARE V. SMT.PRATIBHA WOGHMARE AND ANOTHER(6) the Bombay High Court held as follows:- “The proceedings in the civil Court are substantial, whereas the proceedings under Section 125 of the Cr.P.C., are of a summary nature. Once the civil Court of competent jurisdiction comes to the conclusion that the wife is not entitled to maintenance, the criminal Court, under Section 125, cannot sit in an appeal over the said decision. This itself, without anything more, is sufficient to set aside the impugned order of maintenance in favour of the wife. Even Section 127 (2) of the Cr.P.C., contemplates cancellation of the order passed under Section 125, after the decision of the civil Court.” 17 (Supreme Court Judgment to be referred). 18. The views expressed by various High Courts were on the issue whether the judgment of a civil Court prevails over the order of a criminal Court. Even Section 127 (2) of the Cr.P.C., contemplates cancellation of the order passed under Section 125, after the decision of the civil Court.” 17 (Supreme Court Judgment to be referred). 18. The views expressed by various High Courts were on the issue whether the judgment of a civil Court prevails over the order of a criminal Court. It is an established proposition of law that the civil Court’s decree prevails over the orders of the criminal Courts more particularly in maintenance cases. When once there is a decree of a competent civil Court refusing to grant maintenance to the wife, the decree is binding on the criminal Court and the criminal Court has to alter or cancel the maintenance in accordance with the terms of the decree of the civil Court. 19. The learned counsel for the respondent submits that a Division Bench of this Court gave a common judgment dated 09-06-2005 in Koraganji Sita Mahalakshmi v. Koraganji Yelleshwara Rao and another in C.M.A.Nos.2166 and 2192 of 1997 wherein the Division Bench of this Court dismissed the appeal preferred by the husband against the wife and another against the order in O.P.No.85 of 1995 filed under Section 13 (1) (i.b) of the Hindu Marriage Act seeking divorce. The. Division Bench of this Court also dismissed the appeal preferred against the order in O.P.No.98 of 1997 preferred by the wife against the husband for restitution of conjugal rights. While dismissing the said appeals, the Division Bench of this Court directed the husband to deposit Rs.1,00,000/- towards permanent alimony payable to the wife. The facts of the case covered by the above decision are different from the facts of the present case. In the case covered by the above decision, divorce was granted to the wife. Therefore, the Division Bench of this Court directed payment or permanent alimony to the wife. and whereas in the present case, the suit for maintenance filed by the wife was dismissed on the ground of adultery. The facts of the case covered by the above decision are not applicable to the facts of the present case. 20. In the case on hand a decree passed by the civil Court at the instance of the first respondent became final. Therefore, the lower Court, before which the proceedings were initiated for alteration of maintenance subsequently, cannot ignore the decree of the civil Court. 20. In the case on hand a decree passed by the civil Court at the instance of the first respondent became final. Therefore, the lower Court, before which the proceedings were initiated for alteration of maintenance subsequently, cannot ignore the decree of the civil Court. There is no observation by this Court in a previous revision case that the Family Court shall enhance maintenance irrespective of the decree of the Civil Court. The High Court disposed of the criminal petition by observing that the wife is at liberty to file an application for enhancement or alteration of maintenance on account of enhancement of the salary or change of circumstances. The family Court came to an erroneous conclusion that despite the civil Court decree, the first respondent is entitled for enhancement of maintenance. The Family Court ought to have passed appropriate orders in terms of the civil Court decree without ignoring the same. In the light of the present position of law, the impugned order cannot sustain. 21. In the result, the revision petition is allowed, the order of the Family Court, Visakhapatnam dated .1-3-1999 is set aside. The maintenance granted by the Family Court, Visakhapatnam at the rate of Rs.450/- per month to the first respondent is set aside. Consequently, Crl.M.P.No.232 of 1998 is dismissed and Crl.M.P.No.585 of 1998 filed by the revision petitioner is allowed. The maintenance of Rs.100/- per month granted by the VII Metropolitan Magistrate, Visakhapatnam in M.C.No.11 of 1989 is also cancelled with effect from the date of this order. --X—