KAMALAKSHI VASANTHA KUMARI Vs. SANKARAN SADASIVAN TRIVANDRUM

JUDGEMENT

(1.) This Revision was directed to be placed before the Full Bench to consider the correctness of certain observations in the ruling of a Division Bench of this Court in Kunhi Moyin v. Pathumma ( 1976 KLT 87 ). The Revision has been preferred by the divorced wife of the respondent. (The parties are Ezhavas, governed, at the relevant lime, by the Travancore Ezhava Act 1100). She filed M. C, No. 29 of 1967 before the I Class Magistrate's Court, Neyyattinkara, for maintenance under S.488 of the Criminal Procedure Code, for herself and her three children on the ground of neglect by the respondent. Maintenance was decreed at the rate of Rs. 160/-per mensem for all the four together. The respondent thereafter filed the Ezhava Summary No. 3 of 1968 on the file of the Munsiff's Court Trivandrum, for dissolution of his marriage with the petitioner under S.8 of the Travancore Ezhava Act. A decree for dissolution was passed on 31-3-1970. That , Section requires that the petitioner shall, in all cases, offer in the petition, reasonable compensation to the respondent except where such respondent has changed his or her religion, S.9 further provides that the reasonableness of the compensation is to be determined by the court after an enquiry into the petition, and that it shall in no case exceed Rs. 2000/- where the petitioner is the husband; and Rs. 500/-where the petitioner is the wife. In this case, the maximum compensation of Rs. 2000/-was ordered against the respondent. This amount was also paid. The respondent then filed an application under S.488 of the Criminal Procedure Code for cancellation of the maintenance awarded in favour of the petitioner. This application was also allowed some time in 1970. In the new Criminal Procedure Code of 1973, a divorced wife was also included within the ambit of S.125(1) of the Code. S.125 takes the place of S.488 of the earlier Code. Clause (b) of the explanation to sub-s.(1) of the said Section enacts that a 'wife' includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not been remarried. The explanation was squarely attracted to the petitioner, and taking advantage of the same, she filed M. C. No. 36 of 1974 for maintenance, before the Sub Divisional Magistrate, Neyyattinkara. That application was dismissed by the Magistrate on the ground that S.127(3) of the Code operated as a bar to the maintainability of the application. The Magistrate took the view that as the petitioner had received the whole of the sum payable under the personal law on divorce, the application was not maintainable. We extract S.127:

(2.) The Magistrate was of the view that as at the time of the dissolution of her marriage with the respondent the petitioner had been granted, and had received, the amount payable to her under the personal law, the application for maintenance by her in the circumstances was not maintainable. It was also barred by reason of the prior order in M. C. No. 36 of 1974, and the decision in 1976 KLT 87 cannot give the petitioner any fresh right.

(3.) Counsel for the revision petitioner contended that the above view of the Magistrate was wrong and could not be sustained in the light of the Division Bench ruling in 1976 KLT 87. The contention was put in two ways; that strictly and technically, S.127(3) would allow the Magistrate only to cancel an order for maintenance and not to dismiss the application for maintenance filed by the petitioner; and next, that even a cancellation strictly under S.127(3), or the dismissal of the petition, as in this case, would not be justified in view of the observations made by the Division Bench in Kunhi Moyin v. Pathumma (1976 KL T 87). The observations are as follows: After quoting S.127(3) the Division Bench observed: