T RAJA RAO Vs. T NEELAMMA

JUDGEMENT

(1.) The 1st respondent who is the wife of the petitioner filed a petition M.C. No. 16/1982 on the file of the Judicial Magistrate of I Class, Sompet for maintenance against the petitioner who is her husband. The husband contested the petition contending inter alia that she is living in adultery. The learned Magistrate after holding enquiry rejected the contention of the husband that the wife is living in adulterty and accepted the case of the wife that the husband has neglected to maintain her and granted maintenance at the rate of Rs. 150/- p.m. for the wife and Rs. 50/- for each of the children. Against that the husband preferred revision Cr. R.C. No. 50/87 before the Sessions Judge, Srikakulam who dismissed the revision by his order dt. 27-6-1989. Crl. M.P. No. 1581/89 is filed to quash the said proceedings.

(2.) The husband has filed M.C. No. 430/86 on the file of the Judicial I Class Magistrate, Sompet for cancellation of maintenance under Sec. 127(2), Cr. P.C. alleging that the wife is living in adultery and that he obtained a decree of divorce against the wife on the ground that she is living in adultery in the court of the District Judge at Haryana. He has filed certified copy of the said order. But the learned Magistrate dismissed that petition holding that there is no proof that the wife is living in adultery. A revision was preferred against that Crl. R.P. No. 122/88 to the Sessions Judge, Srikakulam who also agreed with the view of the learned Magistrate and dismissed the revision. Against that Crl. P. 1582/89 is filed to quash the said proceedings.

(3.) In these two petitions the learned counsel for the petitioner i.e. husband contended that the wife is living in adultery and on a petition filed by the husband in the District Judge's Court, in Haryana state a decree for divorce has been passed under Sec. 13 of the Hindu Marriage Act on the ground that the wife is living in adultery and therefore the wife is not entitled to claim maintenance. As I have stated above both the courts found on the evidence placed before them that the husband failed to prove that the wife is living in adultery and there are no grounds to depart from that finding of fact which is given on evidence by both the courts below. The only question which has to be considered is whether the fact of the husband obtaining decree for divorce on the ground that the wife is living in adultery ipso facto enables the husband to seek for cancellation of the order of maintenance. Sec. 127(2), Cr. P.C. reads that where it appears to the Magistrate that, in consequence of any decision of a competent civil Court, any order made under Section 125 should be cancelled or varied, he shall cancel the order or, as the case may be, vary the same accordingly. Then, the question is what is the meaning to be given to the expression 'decision'. Does it refer to the result of the case or the grounds on which the decision is given. Section 41 of the Evidence Act says that a final judgement, order or decree of a competent Court, in the exercise of probate, matrimonial, admiralty or insolvency jurisdiction, which confers upon or take away from any person say legal character, or which declares any person to be entitled to any such character, or to be entitled to any specific thing, not as against any specified person but absolutely, is relevant when the existence of any such legal character, or the title of any such person to any such thing is relevant. There is a direct decision of the Calcutta High Court reported in Ranjit Kumar v. Swaha Rani, 1979 Cri LJ 1301 which covers both the aspects. It was held that "the word decision" in S.127(2), Cr. P.C. means the determination of a question in controversy and not the reasons or grounds which weigh with the Court in arriving at such decision. The reason or the ground which prompted the civil court in the instant case to the decision for ordering dissolution of marriage was desertion by the wife. The desertion therefore was not the decision itself but reasons for such decision. The application therefore should be allowed. On the question under Sec. 41 of the Evidence Act it is held that under S.41 of the Evidence Act, the judgement and decree passed in the said Civil Court is conclusive proof of the fact that the opposite party has been divested of her legal status of wife, but is not a conclusive proof of the reasons for which she has been divested. In these circumstances, the fact of desertion was required to be proved independently in the application for cancellation of maintenance. In the absence of such proof, the application could not be allowed." So, the decree of divorce obtained by the husband only proves that the marriage between the petitioner and the respondent is dissolved. It does not prove the ground i.e. the alleged adultery. In these circumstances under Section 125, Cr. P.C. since the divorced wife is also entitled to claim maintenance till she has remarried, the maintenance granted to the wife cannot be set aside on the ground that she is divorced.