Andhra HC (Pre-Telangana)
Pola Venkateswarlu vs Pola Lakshmi Devi, Pola Subramanyam ... on 7 October, 2004
Author: B. Seshasayana Reddy
Bench: B. Seshasayana Reddy
ORDER B. Seshasayana Reddy, J.
1. This Criminal Petition is filed to quash the Order dated 17.06.2003, passed by the III Additional Sessions Judge, Kunoorl at Nandyal in Criminal Revision Petition No.35 of 2002, whereby the learned Additional Sessions Judge confirmed the Order passed in M.C.No.12 of 2001 on the file of the Judicial Magistrate of First class, Nandyal.
2. The petitioner is the husband of the first respondent. The second respondent is their son. Respondent Nos.1 and 2 filed M.C.No.12 of 2001 claiming maintenance. The petitioner-husband filed counter resisting the claim of his wife and son. The wife, besides examining herself as P.W.1, examined K.Eswaramma as P.W.2 and P.Shankaraiah as P.W.3. On behalf of the husband, besides examining himself as R.W.1, examined one Pula Salanna as R.W.2 and marked Exs.D.1 to D.4. The learned Magistrate, on considering the evidence on record and on hearing counsel for both the parties, allowed the M.C. partly and granted maintenance at the rate of Rs.500/- per month each to the wife and the son. Assailing the Order passed in M.C., the husband filed Criminal Revision Petition No.35 of 2002 on the file of the III Additional Sessions Judge, Kurnool at Nandyal. The learned Additional Sessions Judge, on reconsidering the material placed on record and on hearing counsel for both the parties, dismissed the revision petition and confirmed the Order passed in M.C.No.12 of 2001. Hence, this Criminal Petition by the husband to quash the order of maintenance granted in favour of the wife and the son (respondent Nos. 1 and 2)
3. Learned counsel for the petitioner-husband submits that the petitioner-husband obtained divorce through the process of Court on the ground that the first respondent-wife has been living in adultery and therefore, the first respondent-wife is not entitled to claim any maintenance from the petitioner-husband. He further submits that the first respondent-wife violated the Order passed by the Family Court, Bangalore in M.C.No.294 of 1994 by not handing over the custody of the second respondent-son and therefore, the first respondent-wife is not entitled to claim any maintenance on behalf of the minor son (second respondent).
4. Learned counsel for the respondent Nos.1 and 2 submits that the Order passed in M.C.No.294 of 1994 on the file of the Family Court, Bangalore, is an ex parte Order and therefore, it does not preclude the respondent Nos.1 and 2 from claiming maintenance.
5. While exercising powers under Section 482 of the Code of Criminal Procedure, 1973, the Court does not function as a Court of appeal or revision. Inherent jurisdiction under the Section though wide has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the Section itself. It is to be exercised ex debito justitiate to do real and substantial justice for the administration of which alone Courts exist. Authority of the Court exist for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice, the Court has the power to prevent such abuse. It would be abuse of process of the Court to allow any action which would result injustice and prevent promotion of justice. In exercise of the powers, Court would be justified to quash any proceeding if it amounts to abuse of process of the Court or quashing of the proceedings would otherwise serve the ends of justice.
6. It is not in dispute that the petitioner filed M.C.No.294 of 1994 on the file of the Family Court, Bangalore, seeking divorce on the ground of adultery. The first respondent-wife suffered the decree in M.C.No.294 of 1994. There cannot be any distinction between ex parte decree and contest decree so long as the decree subsists in M.C.No.294 of 1994. It is to be taken that the petitioner obtained divorce on the ground of the first respondent-wife living in adultery. Such a situation is governed by Section 125 (4) of Cr.P.C. which reads as follows:
"No wife shall be entitled to receive an allowance from her husband under this Section if she is living in adultery or if, without any sufficient reason, she refuses to live with her husband, or if they are living separately by mutual consent".
As per Section 125(4) of Cr.P.C., the first respondent-wife is not entitled to receive any allowance from the petitioner-husband since divorce has been granted on the ground of her living in adultery. Both the trial Court and the revisional Court, having adverted to the decree granted in M.C.No.294 of 2004 on the file of the Family Court, Bangalore, committed an error in granting maintenance to the first respondent-wife. If the error is allowed to be continued, it amounts to miscarriage of justice. Hence, the order of the trial Court in M.C.No.12 of 2001 and the Order of the revisional Court in Crl.R.P. No.35 of 2002, so far as they relate to granting of maintenance to the first respondent-wife, are hereby set aside. With regard to the maintenance granted to the second respondent-son, the same is not required to be interfered with since he continues to be in the custody of the first respondent-wife.
7. Accordingly, this Criminal Petition is partly allowed.