T.V. KANNAN Vs. KARTHYAYANI

JUDGEMENT

(1.) THE Petitioner invokes the inherent powers of this Court under Section 482 of the Code of Criminal Procedure and seeks to set aside an order in M.C. No. 124 of 1975 passed under Section 113 of the Code of Criminal Procedure by the Sub Divisional Magistrate, Hosdurg, awarding maintenance to the Respondent, the divorced wife of the Petitioner and confirmed in revision by the Court of Session, Tellicherry. The marriage between the Petitioner and the Respondent, who are governed by the Madras Marumakkathayam Act was dissolved by mutual consent under a registered document Ext. D -1, dated 3rd June 1972, about a year prior to the commencement of the Code of Criminal Procedure, 1973 (hereinafter called the New Code). The main contention raised by the Petitioner before the Sub Divisional Judicial Magistrate resisting the application for maintenance was that the Petitioner and the Respondent are living separate by mutual consent and therefore, by virtue of Clause (3) of Sub -section (4) of Section 125 of the New Code the Respondent is not entitled to maintenance. What is referred to above as Clause (3) or the third category mentioned in the sub -section is to the effect that if husband and wife are living separately by mutual consent, wife shall not be entitled to maintenance. The contention was negatived and maintenance was awarded. Both the courts below rejected the contention holding that Clause (3) of Sub -section (4) of Section 125 has no application to the case of a divorced wife. The same contention is reiterated before this Court in support of the petition.

(2.) THE counsel appearing for the Respondent contended that the application is not maintainable in law and on the facts, that this petition is filed with a view to circumvent the provisions expressly barring a second revision in Sections 397(3) and 399(3) of the New Code, that there is no abuse of any process of law or want of jurisdiction in this case and that on the other hand, the Petitioner is abusing the process of court by filling a petition of this nature.

(3.) SECTION 482 of the New Code reads: