MAHADEVA IYER Vs. KRISHNAMMAL

JUDGEMENT

(1.) The curious controversy this case reveals has linguistic overtones, constitutional hues and certain commonplace issues under the Criminal Procedure Code. A Tamil Nadu Brahmin married a woman of his caste from Kerala some thirty years ago, and after living as husband and wife for 7 years, but producing no offspring in the bargain, they began to live separately, the wife in Alleppey, her home town, and the husband in Madurai where he earned a living as a Sanskrit Pandit. Sometime after they began to live separately, the man married again another woman with whom he lives now and together they are parents of four children. More than two decades after they ceased to live jointly as man and wife, the neglected petitioner moved the District Magistrate's Court at Alleppey claiming maintenance under S.488 of the Criminal Procedure Code from the counter petitioner. The records reveal that the application was made on 6-3-1969 and notice thereof was duly served, after which the case was posted to 5-4-1969. The husband was absent and the case was adjourned to 10-4-1969. The court ordered fresh notice on that date, presumably to be doubly sure whether there is wilful absence. This was served in due course and the case was posted to 28-4-1969. Finding the husband absent, the court proceeded to dispose of the case ex parte, examined the petitioner and adjourned the case for judgment to 30-4-1969. On that date, after considering the evidence adduced, the court awarded Rs. 100/- per mensem in favour of the petitioner. Subsequently, execution was taken out on 19-8-1969 and when the process of the court made its inconvenient impact on him the Sanskrit Pandit hastened to institute a proceeding under S.488(6) of the Criminal Procedure Code for setting aside the ex parte order passed against him. He did not go down to Alleppey, but forwarded his signed petition and a vakalath, executed by him and attested by a manigar (Village Officer), to his advocate Shri Sankaran Kutty who presented to court the petition together with the power in his favour. This Criminal Miscellaneous Petition (No. 748 of 1969) was posted to 17-9-1969 on which date the learned magistrate made short shrift of the matter by rejecting the vakalath on linguistic grounds and, more or less consequentially, dismissing the petition. The order on the vakalath reads:

(2.) The brief order passed by the District Magistrate has a casual and indifferent tone and it strikes me that the ground relied upon for declining to entertain the petition was flimsy and untenable, suggestive of a disinclination to be bothered by proceedings instituted by aggrieved parties in court. Had matters stood thus, and had there been no other weighty circumstances such as were highlighted by counsel for the respondent, I would have had no hesitation in revising the order under attack and directing a fresh enquiry. But the revisional jurisdiction of the High Court has its springs in justice and equity, and need not be exercised where the order impugned does not inflict injustice and to upset the order would result in miscarriage of justice. Similarly, that jurisdiction is not meant to be exercised by way of interference for the sake of interference where there is some error or other but to be invoked only where there is a reasonable possibility of a modification of the original order when the case is sent back.

(3.) Three points have been discussed at some length. I must plead guilty to having persuaded counsel not to confine themselves to the narrow issue of the validity of the vakalath made out in Tamil and presented in a Kerala Court but to spread the canvass wider so that the larger issues, linguistic and other, involved in the case may be understood in their proper perspective.