Balasundaram and Santhi are spouses their marriage having been solemnized on 15.7.1985 according to Hindu Custom at Periyari Village, Athur Taluk. The spouses were unable to derive, even at the inception, the matrimonial blise and happiness, as a consequence of the development of incompatibility of temperment due to their having been brought up in different strata of atmosphere. Want of cordial atmosphere, it is alleged, came to prevail also by reason of demand of dowry. The wife, under the facade of the alleged demand of dowry, was stated to have unjustly deserted the husband and took shelter in her parents’ house, which was stated to have given rise to a cause for the husband to resort to initiation of proceedings praying for restitution of conjugal rights, which was numbered as H.M.O.P.No.24 of 1991 on the file of the Subordinate Judge, Salem.
2. The wife, of course, resisted the claim of the husband for restitution of conjugal rights, by entering appearance therefor. She also appeared to have instituted proceedings claiming maintenance under Sec.125 of the Code of Criminal Procedure, 1973 (for short ‘the Code’), which was taken on file as M.C.No.4 of 1991 on the file of the Judicial Magistrate No.IV, Salem and the same is now stated to be pending as M.C.No.1 of 1992 on the file of the Additional Assistant Sessions Judge, Salem, as consequence of transfer.
3. The husband knocked at the doors of this Court by resorting to the present action by invoking the inherent jurisdiction of this Court under Sec.482 of the Code praying for quashing the maintenance proceedings on the ground that once lis of restitution of conjugal rights between the spouses is seized of by a competent Civil forum, it is but proper for the wife to approach such forum by the preference of a petition simpliciter claiming maintenance and leaving such a course, to claim maintenance in an independent proceedings before a criminal forum under Sec.125 of the Code is not in consonance with the scheme underlying the sanguine and salient provisions adumbrated under the Hind Marriage Act.
4. In support of such a contention, learned counsel appearing for the petitioner would place implicit reliance on the decision of this Court in C.Ramanathan v. Revathy, 1989 T.L.N.J. (Crl.) 119, wherein David Annoussamy, J., of this Court said:
“When a competent civil court has already seized of the matter and when it is possible without incurring any expenditure or any other inconvenience to approach, by way of a simple petition, the Civil Court so as to obtain maintenance, it is not proper on the part of the wife to go before the Magistrate for an order. The proper course is to approach the civil court which is already seized. Further under Sec.127 of the Code of Criminal Procedure if any order regarding maintenance is passed by the competent civil court, the Magistrate should have to set aside its own order which is more in the nature of a temporary measure made after a summary hearing to meet an emergent situation. Therefore, the fact of seizing the Magistrate when the competent civil court has been already seized would cause only judicial waste of time since the order obtained is ultimately liable to be cancelled. I therefore came to the conclusion that the institution of a proceeding under Sec.125, Crl.P.C. when a civil proceeding is already pending between the parties under the Hindu Marriage Act is against the scheme of law contemplated under the Hindu Marriage Act, 1955 and chapter IX of the Code of Criminal Procedure.”
5. In answer to the expression of the views, as extracted above, by a learned Judge of this Court, it is but profitable that useful reference is to be made to the various hues of views expressed, on the subject, by various High Courts, followed it up by the views expressed by the apex of the judicial administration of this country.
6. Chinnappa Reddy, J., a learned Judge of the Andhra Pradesh High Court (as he then was) in Chenchaiah v. Mangamma, 1969 Crl.L.J. 684, expressed.
2. The object of Sec.488, Crl.P.C. 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 more efficacious remedy is no bar to the maintainability of a petition under Sec.488, Crl.P.C. 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 Sec.488, Crl.P.C. Nor can the proceedings under Sec.488, Crl.P.C. be made to await the result of such other proceedings. Otherwise, the object of Sec.488, Crl.P.C. 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 Sec.488, Crl.P.C. is empowered to cancel or suitably vary the order. This is provided under Sec.489(2), Crl.P.C. and this provision amply protects the rights of the parties as may ultimately be determined by the civil courts.
3. Mr. Venkatarama Sastry contends that Sec.488, Crl.P.C. is inconsistent with Sec.24 of the Hindu Marriage Act and therefore, by virtue of Sec.4(b) of the Hindu Marriage Act, Sec.24 of the Act must prevail over Sec.488, Crl.P.C. I am unable to find any inconsistency between the two provisions. Sec.24 of the Hindu Marriage Act as does Sec.488, Crl.P.C. provides for the award of maintenance and does not relieve the husband from his duty to maintain the wife or children during the pendency of proceedings in which their status is in question, or other proceedings here the matrimonial reliefs are claimed. The petition is therefore, rejected.“
7. Ramaswamy, J. another learned Judge of the very same High Court (as he then was), in A.Surya Sriramachondra Murthy v. A. Tejo Satyasathimani, 1984 Crl.L.J. 439, said:
”The remedies under Sec.24 of the Hindu Marriage Act and under Sec.125, Crl.P.C. are not alternative, but they are concurrent and option to the party entitled to make avail of. They are remedial measure intended to alienate the hardship that may be caused to either spouse i.e., the applicant under Sec.125, Crl.P.C. of the respondent under Sec.24 of the Hindu Marriage Act does not take away the power and jurisdiction of the Court under Sec.125, Crl.P.C. to grant relief. Therefore, the contention that the criminal court has no jurisdiction, when an application under Sec.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.“
8. In Virendra Kumar v. Roopa, 1983 All.L.J. 117, P.N.Bakshi, J., of Allahabad High Court said:
”The pendency of civil proceedings under the . Hindu Marriage Act is no bar to the maintenance of an application underSec.125, Crl.P.C. filed by the wife against her husband. If the decision of the criminal court precedes that of the civil court and an order for maintenance allowance has been made under Sec.125, Crl.P.C. in favour of the wife, then in proceedings under Sec.24 of the Hindu Marriage Act, the civil court would be certainly entitled to take that circumstances into consideration in deciding whether the wife should be paid maintenance allowance at all or not, and if so how much under the Hindu Marriage Act. The question of expenses of litigation under Sec.24 of the Hindu Marriage Act is a different question altogether which has to be assessed on the facts and circumstances of that case. In this view of the matter, it cannot be successfully argued that the wife would be placed in a very advantageous position, by being granted maintenance allowance both under Sec.125, Crl.P.C. as well as under Sec.24 of the Hindu Marriage Act. These reasonable adjustments and suitable orders to meet the ends of just ice can only be passed in civil proceedings even after the final determination of the maintenance allowance under Sec.125, Crl.P.C.“
9. The views of the Supreme Court in Ramesh Chander v. Veena Kaushal, A.I.R. 1978 S.C. 1807, may better he high lighted by making a short synopsis of the relevant acts of that case in the very language of the Apex Court and the points urged on behalf of the petitioner therein and they are to the following effect:
”The conjugal tribulations of Mrs.Veena, the respondent, who hopefully married Capt.Kaushal, the petitioner, and bore two young children by him, from the tragic backdrop to this case. The wife claimed that although her husband was affluent and once affectionate, his romantic tenderness turned into flagellant tantrums after he took to the skies as pilot in the Indian Airlines Corporation. Desertion, cruelty and break up of family followed, that sombre acenario, which, in its traumatic frequency, flaring up even into macabre episodes, consternates our urban societies. The offspring of the young wedlock were not only two vernal innocents but two dismal litigations, one for divorce, by the husband, hurling charges of adultery and the other for maintenance, by the wife, flinging charges of affluent cruetly and diversion of affection after the Airlines assignment.
4. The husband sought divorce through the civil court and the wife claimed maintenance through the criminal court. As an interim measure, the District Court awarded maintenance and the High Court fixed the rate at Rs.400 per mensem for the spouse as a provisional figure. Meanwhile, the magistrate, on the evidence before him, ordered ex parte, monthly maintenance at Rs.1,000 for the mother and two children together.
5. Sri S.T.Desai urged two points which merit reflection but meet with rejection. They are, that (i) a civil court’s determination of the quantum is emitted to serious weight and the criminal court, in its summary decision, fell into an error in ignoring the former; (ii) the awardable maximum for mother and children, as a whole under Sec.125 of the Code was Rs.500 having regard to the text of the section."
10. To the points raised by learned counsel, the Supreme Court answered in a scintillating fashion in paragraphs 6 and 7 reflecting thus:
6. Broadly stated and as an abstract proposition, it is valid to assert, as Sri Desai did, that a final determination of a civil right by a civil court must prevail against a like decision by a criminal court. But here two factors make the principle in applicable. Firstly, the direction by the civil court is not a final determination under the Hindu Adoptions and Maintenance Act but an order pendente lite, under Sec.24 of the Hindu Marriage Act to pay the expenses of the proceeding, and monthly during the proceeding and monthly during the proceeding such sum as, having regard to the petitioner’s own income and the income of the respondent, it may seem to me court to be reasonable. Secondly this amount does not include the claim for maintenance of the children although the order does advert to the fact that the respondent has their custody. This incidental direction is no comprehensive adjudication.
7. Therefore, barring marginal relevance for the Magistrate it does not bar the jurisdiction to award a higher maintenance. We cannot, therefore, fault to Magistrate for giving Rs. 1,000 on this score.”
11. The views of the Supreme Court, as extracted above, make it crystal clear that when the parties approach the civil court for the relief of restitution of conjugal rights or divorce and such other ancillary reliefs under the Hindu Marriage Act, the actual grant of interim maintenance during the pendency of the proceedings or plausibility of such maintenance having been obtained should not be construed as a ground serving as a fetter to the institution of the maintenance proceedings by the wife before the competent criminal forum under Sec.125 of the Code, although the decree of a civil court awarding maintenance in a properly instituted proceedings would have a binding effect on the criminal court, which obviously could be taken into consideration for the alteration or cancellation of the maintenance awarded under Sec.l27 of the Code.‘
12. In view of what has been stated above, the law, as expressed by a learned Judge of this Court in the case of C.Ramanathan v. Revathy, 1989 T.L.N.J. (Crl.) 119, cannot at all prevail over the law as propounded by the apex of the Judicial administration of this country in the case of Ramesh Chander v. Veena Kaushal, A.I.R. 1978 S.C.1807, which alone could be construed to be a binding precedent as law declared under Art.147 of the Constitution of India.
13. In this view of the matter, the petition deserves to be dismissed even at the admission stage and is accordingly dismissed.
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