NAGENDRA IYER Vs. PREMAVATHI

JUDGEMENT

(1.) NASENDRA Iyer, who is the petitioner in both these cases, is the husband of Saraswathi Ammal, the first respondent in Cr. R C. No. 1221' of 1970 and the father of Premavathi, the second respondent in Crl. R. C. 1221 of 1970 and the respondent in Cr. R. C. No. 677 of 1970 In M. C. 7 of 1957 on the file of the Additional first Class Magistrate No. 2. Salem, the wife and daughter of the petitioner filed a petition under Section 488 Crl. P. C. in pursuance of which the Court by its order dated ll-4-19o7 directed the petitioner to pay them a monthly maintenance allowance of Rs. 35 for the wife and Rs. 15 for the daughter, whereupon the petitioner instituted a suit in the District Munsif's Court. Salem, craving for a declaration that his wife and daughter were not entitled to maintenance or in the alternative, for fixing the amount of maintenance in accordance with Section 23 of the Hindu Adoption and Maintenance Act. This suit was dismissed by the District Munsif. whereupon the petitioner preferred an appeal in A. S. No. 46 of 1959 on the file of the Sub Court, Salem, and the Sub Court granted a decree under Section 23 of the Hindu Adoption and Maintenance Act. declaring that the wife and daughter of the petitioner were entitled to a consolidated maintenance of Rs. 50 per mensem. Thereafter the petitioner filed M. C. 100 of 1970 on the file of the Additional First Class Magistrate No. I. Salem, praying that the order of the Additional First Class Magistrate. No. 2 Salem, in M. C. 7 of 1957 be cancelled inasmuch as the right of the parties and the quantum of maintenance had been settled by the Civil Court. The learned Magistrate, after hearing the parties, dismissed this petition. Against this order of dismissal, the petitioner has filed Crl R. C. 1221 of 1970. In Crl. M. P. 26'of 1970 on the file of the Additional First Class Magistrate No. 2 Salem. Premavathi. the daughter of the petitioner, applied for increased maintenance due to the increase in the cost of living as well as due to the need for meeting her expenses of college education. The petitioner filed Crl. M. P. 384 of 1970 in Crl. M. P. 26 of 1970 on the file of the Additional First Class Magistrate No. 2 Salem, contesting- the maintainability of Premavathi's petition on the ground that inasmuch as the Civil Court's order had decided the quantum of maintenance for Premavathi and her mother, the criminal court ceased to have jurisdiction to grant any relief under Section 488 Crl. P. C. for enhanced maintenance. This petition was rejected by the learned Magistrate. Against this order of rejection, the petitioner has filed Crl. R. C 677 of 1970.

(2.) THE first question that arises for determination Is whether the decree passed by the Sub Court. Salem, fixing the Quantum of maintenance payable by the petitioner to his wife and daughter ipso facto ousts the jurisdiction of the criminal Court. Inclusion of Sections 488 to 490 Crl. P. C. in Ch. XXXVI Crl. P. C. has a high social purpose and is intended, on public grounds to prevent destitution. Under these provisions, deserted wives and children are enabled to resort to the criminal court and get a cheap and expeditious relief. But for these remedies, they would be compelled to resort to the cumbrous and more time consuming process of Civil law. It must not however be forgotten that the proceedings before the criminal Court are summary in character, and its jurisdiction is auxiliary to that of the Civil Court, which is the final arbiter in the matter of adjudication and as well as upon the Civil status of the parties concerned. Before 1923 some High Courts held that the effect of the order of a Civil Court granting restitution of conjugal rights would automatically put an end to a previous order made by the Magistrate under Section 488 Cr. PC Evidently this view was based on the assumption that the Civil Court has a jurisdiction which overrides that of the Criminal Court. It was to obviate the effect of this view, that by Act 18 of 1923, Section 489 Cr. PC was amended by incorporating in it Sub-section (2), which reads as follows:

(3.) IN fact, in England, a conflict of this kind arose in a different legal situation. While resolving the conflict between a court of summary iurisdiction under the Guardianship of Infants Act and the Divorce Court, which had the primary iurisdiction. Avorv J. said in Rex v. Middlessex Justices, 1933 K. B. 72 at d. 80. as follows: The inconvenience of holding that there is concurrent iurisdiction in the Divorce court and in the justices is obvious, for if the Justices may make an order as in this case, there is nothing to prevent the husband going to the Divorce Court the next day and ask-ina. possibly successfully, for a contrary order. The question might see-saw between the two courts, producing an absolute scandal.