SUNDERLAL TRIBHOVANDAS Vs. PADMABEN W/O SUNDERLAL TRIBHOVANDAS

JUDGEMENT

(1.) Respondent No. 1 had filed Miscellaneous Criminal Application No. 17 of 1980 under Section 125 of the Criminal Procedure Code for maintenance before the Judicial Magistrate First Class, Surat. In that application a preliminary issue was raised whether the application filed by Respondent No. 1 -wife was maintainable as Civil Court in Special Civil Suit No. 176 of 1974 had ordered to give maintenance to the wife at the rate of Rs. 100/ - per month. That suit was decreed on 27 -2 -1979. The learned Judicial Magistrate First Class, Surat by his judgment and order dated 7 -4 -81 rejected the said application by holding that the order passed by the Civil Court would not bar the proceedings under Section 125 of the Criminal Procedure Code. Being aggrieved and dissatisfied by the said judgment and order the petitioner -husband has filed this Criminal Revision Application.

(2.) IN this Revision Application the only question which requires decision is whether the present application under Section 125 of the Criminal Procedure Code is maintainable even though the Civil Court has passed a decree awarding maintenance at the rate of Rs. 100/ - per month in Special Civil Suit No. 176 of 1974.

(3.) UNDER Section 125 or under any other Sections of the Criminal Procedure Code there is no bar that if the Civil Court had decided or granted the maintenance in a Civil Suit, the proceedings under Section 125 would not be maintainable. The learned advocate for the petitioner, however, relied upon Section 127 (2) of the Criminal Procedure Code which empowers the Magistrate to cancel or vary the order passed under Section 125 in consequence of any decision of a competent civil court. In my view this submission of the learned advocate for the petitioner is misconceived because Section 127 (2) nowhere bars the jurisdiction of the Magistrate to determine an application under Section 125 of the Code filed by the wife even if the competent civil court has decreed the suit of the wife for maintenance under the personal law of the parties. It merely enables the Magistrate to pass appropriate order if it appears to him that any order passed under Section 125 should be cancelled or varied in consequence of any decision of a competent civil court, Section 127 (4) requires the civil court to take into consideration the sum which has been paid to or recovered by such person as monthly allowance in pursuance of the order under Section 125 of the Criminal Procedure Code at the time of making decree for recovery of any maintenance or dowry to such person. From the provisions of Section 127 (2) and (4) it is clear that when Criminal Court or Civil Court is awarding the maintenance then it shall take into consideration the order passed by the other court awarding the maintenance and make suitable adjustments in the circumstances of the case. Say in the case where the Criminal Court comes to a conclusion that the maintenance at the rate of Rs. 500/ - should be awarded to the wife and if the civil court had granted the maintenance at the rate of Rs. 200/ - then the Criminal Court would pass an appropriate order taking into consideration that the Civil Court has already granted maintenance at the rate of Rs. 200/ - and it may pass an order awarding additional maintenance at the rate of Rs. 300/ -or it may pass an order that in all Rs. 500/ - should be awarded as maintenance. Similarly, when the Criminal Court has already passed order under Section 125 awarding the maintenance at the rate of Rs. 200/ - and the Civil Court arrives at a conclusion that the maintenance at the rate of Rs. 500/ -should be awarded, then it shall make suitable adjustments as provided under Section 127 (4). The only thing would be that the claimant would not be entitled to have two sets of maintenance. But it cannot be said that once the Civil Court had passed a decree for maintenance, proceeding under Section 125 of the Code is not maintainable. Bombay High Court in. the case of In Re. Tara lakshmi reported in AIR 1938 Bombay, page 499 has held that the Criminal Court would have jurisdiction to pass an order under Section 488 of the Criminal Procedure Code even if civil suit is decreed. Mere existence of Civil Court's decree would not oust the jurisdiction of the Criminal Court. It is held as under: