S. SETHURATHINAM PILIAI Vs. BARBARA ALIAS DOLLY SETHURATHINAM

JUDGEMENT

(1.) Crl. R.G. No. 1202 of 1971 arises out of the order of dismissal of the petition filed by the petitioner for cancellation of maintenance under Section 489 (2), Criminal Procedure Code and Crl.R.C. No. 1203 of 1971 arises out of allowing the petition of the respondent for enforcement of the order of maintenance even subsequent to the decision of the civil Court. As the facts and points for consideration are common in both these petitions, they are disposed of together.

(2.) The respondent and her daughter filed an application for maintenance under Section 488, Criminal Procedure Code in the Court of the Additional First Class Magistrate, Tiruchirapalli, on the ground that the respondent was the legally married wife of the petitioner, that the daughter was born to them and that the petitioner had failed and neglected to maintain them. The learned Additional First Class Magistrate held that the marriage between the petitioner and the respondent was not proved and her daughter was not a 'child' entitled to claim maintenance under Section 488, Criminal Procedure Code. The respondent filed revision against the order of dismissal of her application, in the High Court. The High Court reversed the order of the Additional First Class Magistrate holding that the respondent was the wife of the petitioner and she was entitled to maintenance at the rate of Rs. 200 per month, but rejected the application of the daughter for maintenance on the ground that she was not a 'child'. The petitioner filed an appeal in the Supreme Court against the order of the High Court. The Supreme Court dismissed the appeal making an observation that the decision of the criminal Court will be subject to the decision of the civil Court, as it was stated at that time 'that a civil suit was pending. The appeal was disposed of by the Supreme Court on 25th March, 1970.

(3.) When the criminal proceedings were pending, the petitioner filed a suit O.S. No. 1020 of 1967 in the Court of the III Additional District Munsif, Tim-chirapalli for a declaration that the respondent was not the wife of the petitioner and that the daughter was not born to him. The learned District Munsif by his judgment dated 22nd December, 1970 decreed the suit. This decree was subsequent to the order passed by the Supreme Court dismissing the appeal of the petitioner. Then the petitioner moved the Additional First Class Magistrate's Court praying for cancellation of the order of maintenance in consequence of the decision of the District Munsiff. In the meanwhile, the respondent filed an appeal against the judgment of the District Munsif in A.S. No. 276 of 1971 in the District Court, Tiruchirapalli which is said to be still pending. The learned Additional First Class Magistrate dismissed the application of the petitioner for cancellation of maintenance mainly on the ground that since and appeal had been filed against the judgment of the District Munsif and as that appeal was pending, the judgment of the District Munsif cannot be deemed to be final and, therefore, that judgment cannot be given effect to. Against that order Cr.R.C. No. 1202 of 1971 has been filed by the petitioner.