GOVINDASAMI MUDALIAR Vs. MUTHULAKSHMI AMMAL

JUDGEMENT

(1.) PETITIONER Govindaswami Mudaliar was the respondent in M. C. No. 19 of 1965 on the file of the Additional First Class Magistrate, Mayuram. The respondent filed a petition under Section 488, Criminal P. C. and the Additional First Class Magistrate has ordered the petitioner to pay a monthly allowance of Rs. 40 per month.

(2.) THE main contention urged by the learned Advocate for the petitioner is that the respondent having obtained a decree for maintenance in O. Section 162 of 1949 on the file of the District Munsif 's Court, Mayuram, at the rate of Rs. 15 per month, she is not entitled to file a petition under Section 488, Criminal P. C. The learned Advocate for the petitioner referred to the decision in In re, Subbramakkamah, 2 Weir Cr 615 where it was held that a decree for a monthly allowance for maintenance having been obtained in the High Court and that decree being still in force, the petitioner could not get a further and separate order for maintenance from the Magistrate. He also relied on the decision in Sundara Naicker v. Thiru-poorammal 1936 Mad W N 524, where it was held that the principle to be observed in a case like the one in that case is that once the civil Court has decided the question of maintenance, a Magistrate cannot have jurisdiction under Section 488 Criminal P. C.

(3.) THERE is a provision in Section 489 (2) Criminal P. C. , for canceling or varying an order passed under Section 488, Criminal P. C. in conformity with the decision of a competent civil Court. But the present case relates to the maintenance order obtained by the respondent long after the civil Court has granted a decree for maintenance. The learned Additional First Class Magistrate has referred to two decisions, namely, In re. Mohamadali Muthabhai, AIR 1930 Bom 144 and In re, Taralakshmi Manurprasad, AIR 1938 Bom 499, where it has been held that a criminal Court would have jurisdiction to pass orders under Section 488, Criminal P. C, so long as there is evidence that the petitioner is the wife of the respondent and the respondent has neglected or refused to maintain her.