K MATHIAZHAGAN Vs. MALADEVI

JUDGEMENT

(1.) This is a petition under section 482. Cr1. P.C. by the petitioner seeking some modification in the order passed on 21.7.1986 in Cr1. M.P. 9455 of 1985. The circumstance in which the order was passed is as follows:

(2.) The first respondent herein filed O.P. 56 of 1981 before the Sub-Court of Salem, for restitution of conjugal rights. That petition was dismissed on 11.9.1984, by the trial court holding that there was no proof of marriage between the parties. On appeal by the first respondent herein, the Additional District Judge. Salem, by judgment, dated 18.4.1985 held that there was a valid marriage and accordingly allowed the petition for restitution of conjugal rights filed by the wife. As against that judgment, the husband preferred C.M.S.A. 32 of 1985 before this Court and it was admitted. He also filed along with the C.M.S.A. No. 32 of 1985. a petition for stay, which is still pending and in which no interim stay was granted. While so, the respondent filed before the Judicial First Class Magistrate, Salem a petition under- S. 125, Cr1. P.CT claiming maintenance to the tune of Rs 800 per mensem for herself and another sum of Rs. 500 per mensem for her child. The petitioner herein filed Cr1. M P. 9455 of 1985 under 5. 482. Cr1. P.C., to quash the proceedings, M.C. No. 36 of 1965 instituted by the wife before the Judicial First Class Magistrate of Salcm. In that petition the petitioner urged among other things that if the petition under section 125, Cr1. P.C. before the Magistrate was not quashed, the Magistrate would sit in judgment over the finding given by the District Court. Salem, and adjudicate the same issues. While disposing of Cr1. M.P. 9455 of 1985 by order, dated 21.6.1986 it was observed by this Court as follows: Secondly, when the matter has been decided by the civil court holding that there is marriage, the Magistrate will not go into the question of finding whether there is marriage or not and the parties are precluded from adducing evidence in that matter.T Cr1. M.P. 9455 of 1985 was dismissed, since none of the points raised by the husband-petitioner herein was found in his favour.

(3.) In this petition the husband prays this Court to modify the order passed in Cr1. M.P. 9455 of 1985 by clarifying to the extent that the petitioner is entitled to all defences available to the petitioner including the question of whether the first respondent is the legally married wife of the petitioner and thus render justice.