Madras High Court
Mary Baby vs Maria Lawrence on 21 June, 2016
Author: P.Devadass
Bench: P.Devadass
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 21.06.2016 CORAM THE HONOURABLE DR.JUSTICE P.DEVADASS C.R.L.RC(MD) No.228 of 2011 Mary Baby ... Petitioner/Respondent/Petitioner -vs- Maria Lawrence ... Respondent/Petitioner/Respondent PRAYER: Criminal Revision Petition is filed, under Section 397 (1) r/w 401 Cr.P.C., to call for the records in Cr.M.P.No.493 of 2010 in M.C.No.5 of 1989 on the file of learned Principal District Munsif cum Judicial Magistrate, Eraniel and set aside the order dated 22.01.2011. !For Petitioner : Mr.A.Thiruvadi Kumar ^For Respondent : Mr.D.Saravanan :ORDER
In this revision, an order under Section 127(3) Cr.P.C. has been challenged.
2.Initially, the revision petitioner sought for maintenance for herself and for her daughter, in M.C.No.5 of 1989, before the learned Judicial Magistrate, Eraniel, Kanyakumari District, the learned Judicial Magistrate granted them each Rs.350/- p.m., Rs.150/- p.m. respectively. Subsequently, since the daughter became major, she did not enforce the maintenance order in her favour as it became unenforceable.
3.Revision petitioner sought for enhancement of her maintenance. On 18.03.2006, the learned Judicial Magistrate, Eraniel, enhanced the maintenance from Rs.350/- to Rs.500/- per month.
4.The respondent filed I.D.O.P.No.54 of 2006 before the District Court, Kanyakumari District at Nagercoil for divorce. On 20.10.2009, the District Judge dissolved their marriage, granted permanent alimony of Rs.2,00,000/-. Accordingly, the respondent had deposited the said amount in the Court. The amount is in Court deposit.
5.She did not withdraw the amount. She filed appeal as against the said divorce decree to this Court. Even now it is pending. Respondent filed Cr.M.P.No.493 of 2010 in M.C.No.5 of 1989 under Section 127(3) Cr.P.C., before the learned Judicial Magistrate, Eraniel to cancel the maintenance order in view of Civil Court/District Court, Nagercoil granting her permanent alimony. The learned Magistrate, taking note of the said Civil Court decree granting her permanent alimony, cancelled her maintenance order enhanced.
6.Aggrieved, the revision petitioner is before us.
7.The learned counsel for the petitioner would submit that the revision petitioner challenged the decree of divorce before this Court. She has not received the permanent alimony amount from the Court. The decree for divorce has not become final. It is in the judicial scrutiny of the appellate Court. Till the final verdict is pronounced by the Appellate Court the learned Judicial Magistrate, Eraniel ought not to have taken a decision in the petition filed by the respondent under Section 127 (3) Cr.P.C.
8.Another limb of argument of the learned counsel for the petitioner is that by the mere passing of an order by a Civil Court, mechanically a Magistrate cannot cancel the maintenance order. Of course, he can consider he Civil Court order and see whether the maintenance order, quantum of it need to be cancelled, modified.
9.In support of his submissions, the learned counsel for the revision petitioner cited the following decisions:
1.FUZLUNBI Vs.K.KHADER VALLI [1980 S.C.C (Cri) 916].
2.BAI TAHIRA Vs. ALL HUSSAIN FISSALLI [AIR 1979 S.C. 362]
3.RAMESH CHANDER KAUSHAL Vs. VEENA KAUSHAL [1978 S.C.C. (Cri) 508]
4.SANKAR SOREN Vs. STATE OF WEST BENGAL [2004 CRI. L.J. 3088]
5.LINGA GOUNDER Vs. RAMAN [1978 CRI.L.J 469] and
6.NAGENDRA IYER Vs. PREMA VATHI [1973 CRI. L.J. 1677].
10.On the other hand, the learned counsel for the respondent would submit that the learned Magistrate has taken note of the factum that Rs.2,00,000/- granted by the Civil Court and considering the circumstances of the case, the learned Magistrate has rightly cancelled the maintenance order already passed in her favour.
11.In support of his submissions the learned counsel for the respondent cited the following decisions:
1.SAIENDRA NATH GHOSH VS. STATE OF WEST BENGAL AND ANR. [I (1998) DMC 487 (CALCUTTA)]
2.HANSABEN Vs. STATE OF GUJARAT & ANOTHER [SpL. Crl.A.No.47 OF 2012 DATED 09.04.2012]
12.I have considered the rival submissions, perused the impugned order, materials on record and the decisions cited by both sides.
13.Under the old Code of Criminal Procedure, 1898 in Section 488 Cr.P.C. granting of maintenance to wife has been provided. In the new Code of Criminal Procedure, 1973 the corresponding provision is Section 125 Cr.P.C. Section 125 Cr.P.C. is wider in scope than the old Section 488 Cr.P.C. Even in old Code, under 489 Cr.P.C. under certain circumstances, the maintenance order passed under Section 488 Cr.P.C. can be cancelled or modified. One of the circumstance is a civil Court granting maintenance. The corresponding provision in the new Code is Section 127 Cr.P.C..
14.Let us notice here Section 127 Cr.P.C.:
?127. Alteration in allowance.
(1) On proof of a change in the circumstances of any person, receiving, under section 125 a monthly allowance, or ordered under the same section to pay a monthly allowance to his wife, child, father or mother, as case may be, the Magistrate may make such alteration in the allowance he thinks fit: Provided that if he increases the allowance, the monthly rate of five hundred rupees in the whole shall not be exceeded.
(2) 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.
(3) Where any order has been made under section 125 in favour of a woman who has been divorced by, or has obtained a divorce from, her husband, the Magistrate shall, if he is satisfied that-
(a) the woman has, after the date of such divorce, remarried, cancel such order as from the date of her remarriage;
(b) the woman has been divorced by her husband and that she has received, whether before or after the date of the said order, the whole of the sum which, under any customary or personal law applicable to the parties, was payable on such divorce, cancel such order,-
(i) in the case where, such sum was paid before such order, from the date on Which such order was made,
(ii) in any other case, from the date of expiry of the period, if any, for which maintenance has been actually paid by the husband by the woman;
(c) the woman has obtained a divorce from her husband and that she had voluntarily surrendered her rights to maintenance after her divorce, cancel the order from the date thereof.
(4)At the time of making any decree for the recovery of any maintenance or dowry by any person, to whom a monthly allowance has been ordered to be paid under section 125, the Civil Court shall take into account the sum which has been paid to, or recovered by, such person as monthly allowance in pursuance of the said order.?
15.Section 127 Cr.P.C. speaks about the cancellation or varying the maintenance order passed under Section 125 Cr.P.C. in view of a Civil Court Order granting maintenance. The word 'vary' here also means 'modify', 'change'. Section 127(3)(b) Cr.P.C. also speaks about similar contingency. But it will arise under a specific contingency.
16.Now, the marriage between the revision petitioner and the respondent has been dissolved under the Indian Divorce Act by the learned District Judge, Kanyakumari at Nagercoil in I.D.O.P.No.54 of 2016 on 20.10.2009. Aggrieved, the revision petitioner has filed C.M.A.No.1194 of 2009. It is pending before a division Bench of this Court. It is pertinent here to note that protesting the same she did not withdraw Rs.2,00,000/- deposited by the respondent towards her permanent alimony as per the Civil Court Order. So the divorce decree has not become final and conclusive. In the circumstances, the learned Magistrate cancelling the maintenance order based on the Civil Court Order is not correct. This is one aspect of the matter.
17.From a reading of Sections 125 and 127 Cr.P.C and the decisions cited by the learned counsels what follows is that subsequent to grant of maintenance under Section 125(1) Cr.P.C. if a Civil Court grants maintenance in lump sum to the wife may be a ground for alteration of the maintenance order under Section 127 Cr.P.C. It is not that as and when a civil order has been passed, the Magistrate has to cancel the maintenance order. What Section 127 enables the Magistrate to consider whether the amount granted by Civil Court itself would be sufficient. Whether in the present day context of high inflation the amount granted by the Civil Court does not matters much with regard to the maintenance already granted under 125 Cr.P.C. and it need be altered. So, the learned Magistrate has to consider various relevant aspect before cancelling or modifying a maintenance order passed under Section 125 Cr.P.C. in view of an order of Civil Court decree.
18.In view of the foregoings, the Magistrate cancelling the maintenance order under Section 127 Cr.P.C. suffers from legality.
19.In view of the foregoings, it is ordered as under:
(1) This revision is allowed.
(2) The impugned order passed by the learned Judicial Magistrate, Eranieal in Cr.M.P.No.493 of 2010 in M.C.No.5 of 1989 dated 22.01.2011 is set aside. (3) However, if the respondent is so advised, in case the respondent succeeds in the pending CMA he can file a fresh petition under Section127 Cr.P.C., when such a petition is filed, the learned Magistrate will dispose of the same according to law.
To
1.The Principal Sessions Judge, Kanyakumari District @ Nagercoil.
2.The Judicial Magistrate, Eraniel..