Andhra HC (Pre-Telangana)
G. Sundara Babu vs Smt. Udaya Bhanu And Anr. on 21 November, 1990
Equivalent citations: 1991(1)ALT49, II(1991)DMC211
JUDGMENT Bhasker Rao, J.
1. This petition is filed to quash the proceedings in M.C. No. 1/89 and also in Crl. M.P. No. 220/90 on the file of the II Additional District Munsif Magistrate Tirupathi.
2. The facts of the case are that the petitioner-husband married the respondent on 18-9-1983 at Tiruchanoor, Tirupathi according to the Hindu Customs and Rites. Thereafter, they lived together at Madras at the petitioner's house. Later, the respondent gave birth to a child in her parents' house at Tirupathi on 4-11-1984 and the said child died on 5-11-1984. Since then, the respondent has been living at her parents' house at Tirupathi. The petitioner made several attempts to get the respondent back to his house at Madras, but in vain.
3. On 25-11-1987, the petitioner filed O.P. No. 194/88 in the City Civil Court, Madras for restitution of conjugal rights Under Section 9 of the Hindu Marriage Act. The said O.P. was transferred to the file of the Principal Family Court; Madras and renumbered as O.P. No. 180/88. In that O.P., the respondent filed I.A. No. 73/88 for interim maintenance Under Section 24 of the Hindu Marriage Act. Later, she made an endorsement in the said O.P. to the effect that she was not willing to join the petitioner. Therefore, the said O.P. and the I.A. were closed. Thereafter, the petitioner filed O.P. No. 317/90 in the Principal Family Court, Madras for divorce. On 5-6-1990, the respondent filed I.A. No. 488/90 in the said O.P. claiming interim maintenance Under Section 24 of the Hindu Marriage Act.
4. On 29-12-1988, the respondent filed M.C. No. 1/89 before the II Additional District Munsif Magistrate, Tirupathi, against the petitioner for maintenance under Section 125 Cr. P.C. and the same is pending. On 25-1-1990, she also filed Crl. M.P. No. 220/90 in the said M.C. claiming interim maintenance Under Section 125 Cr. P.C.
5. The learned counsel for the petitioner contends that when the civil proceedings under the Hindu Marriage Act are pending, the proceedings Under Section 125 Cr. P.C. are not maintainable and that the respondent can only claim interim maintenance Under Section 24 of the Hindu Marriage Act.
6. On the other hand, the learned counsel for the respondent contends that the remedy available under Section 125. Cr. P.C. is quicker and speedier remedy and the same is independent: and that even though the remedy under the Hindu Marriage Act is available for claiming maintenance, the same is not a bar for claiming maintenance Under Section 125 Cr. P.C.
7. In view of the above, the question to be decided is whether the pendency of the proceedings under the Hindu Marriage Act against a husband wherein interim maintenance Under Section 24 is claimed, is a bar to the proceedings Under Section 125 Cr. P.C.?
8. The main aim of Section 125 Cr. P.C. is that the women are not thrown out to the vagrancy as there is no maintenance to them. To safeguard their right to live by getting maintenance. Section 125 Cr. P.C. is provided. Under Section 125 Cr. P.C., the woman can approach the Court, where she is living whereas that is not the position under the Hindu Marriage Act. Considering the proceedings Under Section 488 Old Cr. P.C. (equivalent to Section 125 of the present Cr. P.C.), Chinnappa Reddy, J. held as follows in S. Seshamma. In re. 1968 (2) An W.R.P. 98.
"The object of Section 488, Criminal Procedure Code is the prevention of vagrancy and to provide neglected wives and children a cheap and speedy remedy. This remedy is irrespective of other remedies such neglected wives and children may have under their personal law or under any statute. The existence of other mere efficacious remedy is no bar to the maintainability of a petition under Section 488, Criminal Procedure Code. Indeed it is irrelevant. Similarly the pendency of other proceedings where the status of the parties is in question or where a husband seeks some matrimonial relief is no bar to the maintainability of a petition under Section 488. Criminal Procedure Code. Nor can the proceedings under Section 488 Criminal Procedure Code be made to await the result of such other proceedings. Otherwise the object of Section 488, Criminal Procedure Code providing for a cheap and speedy remedy will be frustrated. However, where a competent Civil Court declares the rights of the parties, the Magistrate passing an order under Section 488, Criminal Procedure Code is empowered to cancel or suitably vary the order. This is provided under Section 489(2), Criminal Procedure Code and this provision amply protects the rights of the parties as may ultimately be determined by the Civil Court."
9. The sum and substance of the above judgment is that the right of the wife under Section 125 Cr. P.C. is independent of the right provided under the Hindu Marriage Act and where the maintenance is awarded under Section 125 Cr.P.C., and again Civil Court also awards maintenance under the Hindu Marriage Act and Maintenance & Guardianship Act, the husband can file a petition Under Section 127 Cr. P.C. in the Criminal Court to alter the maintenance granted Under Section 125 Cr.P.C.
10. In Ajjarapu Surya Sri Rama-Chandra Murthy v. Ajjarapu Tejo Satyasathi mani 1983 (2) (HC) APLJ P : 374 Ramaswamy, J. (as he then was) held as follows:
"The remedies under Section 24 of the Hindu Marriage Act and under Section 120 Cr.P.C. are not alternative but they are concurrent and optional to the party entitled to make avail of. They are remedial measures intended to alievate hardship that may be caused to either spouse i.e., the application Under Section 125 Cr. P.C. or the respondent Under Section 24 of the Hindu Marriage Act. Therefore, the mere possibility of availability of the remedy Under Section 24 of the Hindu Marriage Act does not take away the power and jurisdiction of the Court Under Section 125 Cr. P.C. to grant relief. Therefore, the contention that the Criminal Court has no jurisdiction when an application Under Section 13 of the Hindu Marriage Act has been filed to grant maintenance to the 1st respondent is devoid of substance and accordingly it is rejected."
11. In Varada Kola Satyanarayana v. Varada Parvathi 1986 (1) ALT P : 201. P. Kodandaramayya. J. held that the order of a Magistrate granting maintenance to wife Under Section 125 Cr. P.C. is not a bar for ordering interim maintenance to her pending the proceedings Under Section 24 by the husband. However it was observed that it is open to the petitioner therein to apply and satisfy the Magistrate that the order passed by him may be rescinded, in view of the order passed by the Civil Court.
12. The learned counsel for the petitioner relied upon the judgment of the Madras High Court in G. Ramanathan v. Revathy 1989 (2) Crl LJP : 2037. The proposition laid down in that decision by the Madras High Court is quite contrary to the proposition laid down in the above judgments of this Court. The Madras High Court judgment has only persuasive value. Therefore the same need not be followed.
13. The learned counsel for the petitioner also relied upon the judgment of this Court in Crl. P. No. 218/90 dated : 11-7-1990. In that judgment, this Court directed to dispose of the I A filed by the wife claiming maintenance Under Section 24 of the Hindu Marriage Act. The facts of that case are quite different.
14. In view of the judgments of this Court in S. Seshamma's Case Ajjarapu Sri Ramachandra Murthy's Case and Varada Kota Satyanarayana's Case (1 to 3 supra), it has to be held that the pendency of the proceedings under the Hindu Marriage Act and the availability of the remedy of claiming interim maintenance thereunder, are no bar for filing a petition, Under Section 125 Cr. P.C. and claiming maintenance in the said M.C. proceedings.
15. Even on the merits also, the M.C. was filed in the year 1989; whereas the O.P. for divorce Under Section 13 of the Hindu Marriage Act was filed in the year 1990 after the M.C. was filed by the wife ; and it is not shown that the wife has filed any petition claiming interim maintenance under the Hindu Marriage Act.
16. For the fore-going reasons. I do not see any grounds to quash the impugned proceedings. The Petition is dismissed.