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2014 DIGILAW 3870 (MAD)

Kandha Subbian v. Packialakshmi

2014-10-16

P.DEVADASS

body2014
Judgment : The petitioner aggrieved by the dismissal of his Cr.M.P.No.4500 of 2014 filed in M.C.No.18 of 2014 on 12.08.2014, by the learned Judicial Magistrate, Aruppukottai, refusing to implead one Seetharaman, has directed this petition. 2. Heard the learned counsel for the petitioner. 3. According to the learned counsel for the petitioner, bringing Seetharaman on record is very important to establish the fact that the respondent is living with the said Seetharaman. 4. Petitioner, namely, Kandha Subbian and the respondent herein, Packialakshmi are spouses. Packialakshmi sought for maintenance in M.C.No.18 of 2014 under Section 125(1) before the learned Judicial Magistrate, Aruppukottai. Kandha Subbian filed counter pleading that as between both divorce took place very many years ago, subsequently, she has married one Seetharaman and now she is living with him. 5. Under these circumstances, the Kandha Subbian filed Cr.M.P.No.4500 of 2014 under Section 319 Cr.P.C. to implead his alleged ex-wife's present husband Seetharaman as a co-respondent in M.C.No.18 of 2014. 6. The learned Magistrate dismissed the application on the ground that Section 319 Cr.P.C., which is intended to implead accused persons cannot be applied for impleading an adulterer in a petition filed under Section 125(1) Cr.P.C. 7. Actually the matter has to be viewed from a different perspective. 8. The main theme of contention of Kandha Subbian is on 10.11.1980, there was execution of a divorce deed under which the marital bondage between them has been dissolved and the deed also has been registered. 9. Once a man tie thali around the neck of a woman, under certain circumstances dissolution of marriage takes place, namely, death of a spouse and dissolving a marriage. One is by fate. Other one is by operation of law. But a marital bondage cannot be cut by an act of parties. In the circumstances, the divorce deed dated 10.11.1980 cannot be equated to the level of a decree of divorce granted by a Court of law. 10. Now, the respondent seeks maintenance under Section 125 Cr.P.C. as against her husband/Kandha Subbian/petitioner. He took the specific stand that she lives with one Seetharaman. Petitioner says that Seetharaman is his wife's husband. But, he legally cannot be permitted to say so because when his marriage with Packialakshmi is valid even today. Then, if the said allegation of petitioner is proved result would be Seetharaman living with Packialakshmi in a living in relationship. He took the specific stand that she lives with one Seetharaman. Petitioner says that Seetharaman is his wife's husband. But, he legally cannot be permitted to say so because when his marriage with Packialakshmi is valid even today. Then, if the said allegation of petitioner is proved result would be Seetharaman living with Packialakshmi in a living in relationship. But, a man living with another man's wife would be guilty of adultery. (See Section 497 I.P.C.) But, it will not be in the case of Packialakshmi because she has been exempted from Section 497 I.P.C. 11. The eligibility to maintenance is provided under Section 125(1) Cr.P.C. Section 125(4) Cr.P.C. will operate as an exception to Section 125(1) Cr.P.C. 12. Section 125(4) Cr.P.C. incorporates three exceptions to Section 125(1) Cr.P.C., namely, when the women is living in adultery with another man, or she has no sufficient reason to live away from her husband or the spouses are living separately by a mutual agreement. Then wife is not entitled to maintenance from her husband under Section 125(1) Cr.P.C. 13. There may be an argument based on the divorce document dated 10.11.1980. If it is proved that they are living separately with a mutual consent, then Section 125(4) Cr.P.C. will come into play and Section 125(1) Cr.P.C. will not apply to her. This is one aspect of the matter. 14. The contention that Packialakshmi is living with one Seetharaman has been stated by Kandha Subbian in his main counter. So, he has to prove it. For proving his said plea, impleading of Seetharaman cannot be asked for. Kandha Subbian/the petitioner has to let in acceptable evidence that his wife Packialakshmi is living as wife of Seetharaman. Kandha Subbiah cannot seek to force Seetharaman to open his mouth by impleading him as a party as respondent in the main maintenance petition in M.C.No.18 of 2014. Therefore, still avenues are open to the petitioner to establish his plea, namely, his wife's alleged link with Seetharaman. For that impleading of Seetharaman is not called for. 15. In view of the foregoings, this Criminal Original Petition fails and it is dismissed. The order of the learned Judicial Magistrate, Aruppukottai, is upheld.