VADAPALLI SATHYAVATHI Vs. V.V.S.N. RAJU

JUDGEMENT

(1.) THIS is a Criminal Revision against the, order of the learned 11th Metropolitan Magistrate, Madras, upholding a preliminary objection raised by the respondent herein and dismissing a petition under S. 125 of the Criminal Procedure Code filed by the revision petitioner claiming maintenance from her husband who is the respondent. The revision petitioner has obtained a decree for maintenance against the respondent herein in O.S. No. 135 of 1967 on the file of the District Munsif's Court, Vizianagaram. O.S. No. 195 of 1975 was again filed by her in the Court of the Principal District Munsiff, Vizianagaram for enhancement of the maintenance. That suit also was decreed subsequently. Obviously, because the revision petitioner was not able to execute the decree of the Civil Court against the respondent herein who is residing in the City of Madras and who is employed in the Manali Oil Refineries as a Chemical Engineer, she has filed a petition under S. 125 of the Criminal Procedure Code for recovery of the maintenance.

(2.) A preliminary objection was raised before the learned Magistrate that in view of the decrees of the Civil Courts the petition for maintenance under S.125 of the Criminal Procedure Code is not maintainable. The learned Magistrate after observing that "there is nothing in S.125, Crl. P.C. that the existence of a Civil Court decree would ipso facto bar a proceeding under that Section" has held that as the revision petitioner is in a position to realise the amount due under the decree, she cannot get a further and separate order for maintenance under S.125, Crl. P.C.

(3.) IN Linga Goundar v. Raman, 1977 M.L.J. (Crl.) 455 :, 1977 L.W. (Cri.) 188, Natarajan, J., has held that ''S.125, Cr.P.C. does not lay down that the existence of a decree for maintenance passed by a Civil Court will bar the jurisdiction of a Magistrate to entertain a petition under S.125 for maintenance." Apart from that, we have a number of decided cases which clearly lay down that the existence of a civil decree for maintenance cannot operate, as a bar to a proceeding for obtaining maintenance, being instituted under the Criminal Procedure Code. Again, the learned Judge has observed that "the manner in which S.489(2) of the Criminal Procedure Code of 1898 was framed and sub -S. (2) of S.127 of the 1973 Code is worded would clearly show that for the Civil Court's pronouncement to have an impact on the order of maintenance made by a Magistrate it should have been later in point of time". With this view of the learned Judge I respectfully agree.