SARASWATHI AMMAL Vs. HARIRAMA SERVA

JUDGEMENT

(1.) Learned Sessions Judge of Palghat has made this reference and the point referred is that when a civil court has passed a decree for maintenance, is it open to the wife to prosecute a petition for maintenance against the husband under S.488 Cr. P.C. Courts have ruled that when once the civil court has decided the question of maintenance, the magistrate cannot have jurisdiction under S.488 Cr. P.C. But judicial opinion is not uniform in this matter. The criminal court no doubt, must respect a decree passed by the civil court wherein the matter before the criminal court had come up for determination. But in a proceeding under S.488, the sole point to be considered is whether the husband has neglected or refused to maintain his wife and children. The mere passing of a decree by the civil court from which no benefit has accrued to the wife, is no answer to a petition under S.488. Mere existence of the civil court decree cannot therefore, be urged as a bar to the entertainment of an application under S, 488. This is the view taken by a Division Bench of the Bombay High Court in In re Taralakshmi (AIR 1938 Bom. 499).