ROBIN RICHARD Vs. MERCY RICHARD

JUDGEMENT

(1.) This is an application in revision against the order of the Deputy Commissioner affirming that of the Sub-divisional Magistrate in a proceeding under Section 488, Criminal Procedure Code, It appears that that proceeding was ultimately decided in favour of the opposite party namely, Mercy Richard and thereby she got an order for maintenance of Rs. 45/- a month. Thereafter, it appears that the petitioner appeared before the Sub-divisional Magistrate with a petition stating why he was not able to carry out the orders of the court passed under Section 488, Criminal Procedure Code, directing maintenance to be paid to the opposite party, Mrs. Mercy Richard. The courts below held that as the order under Section 488, Cr. P. C., was final, as no steps were taken to move the superior court against the said order, it was not open to the court to reconsider the matter. All that could be considered impliedly was whether the petitioner had shown sufficient cause for not obeying the order of the court, namely, to pay the maintenance of Rs. 45/- per month as directed by the Court.

(2.) It appears that there was a divorce suit brought by the petitioner against the opposite party in 1955. The divorce suit ended in dismissal of the suit in that same year and the application by Mrs. Richard under Section 488, Cr. P. C. was on 23-8-55. An appeal against the order passed in the divorce suit was filed in the High Court on 11-7-55. Thus it is clear that the appeal was preferred in the High Court before the application under Section 488, Criminal Procedure Code, was filed.

(3.) The first point taken before me is that once an appeal was filed against the order passed in the divorce suit, the jurisdiction of the criminal court to pass an order under Section 488 Cr. P. C. was ousted. For this purpose my attention was drawn to the case of Earnest Frank Cecil v. Sybil Lucretia Cecil, AIR 1955 NUC (All) 3591. This is not a full report but merely a short observation of their Lordships of that High Court which in effect is that if proceedings are pending in a divorce court, it is not open to the wife to move the court under Section 488, Cr. P. C. In my opinion, it is too late to consider this point because in the proceeding under Section 483 Cr. P. C. the petitioner avoided the court altogether. The order of the Sub-divisional Magistrate in this-connection is as follows : -- "In pursuance of a notice from this court the opposite party appeared and petitioned for time to show cause. He was allowed time to do so, but he never appeared thereafter nor did he file any show cause petition. The case has, therefore, been taken up ex parte. It is thus clear that the petitioner deliberately avoided coming to the court in the proceeding under Section 488 of the Code. He thus did not take the advantage and opportunity given to him to put forward this very point that has been put forward before me now. As he has failed to do so, he cannot take the advantage of it now in this criminal revision. In other words, the petitioner cannot take the advantage of his own fault. I do not for a moment suggest that the decision of the Allahabad High Court is one that I would follow. I have not considered that case because in my opinion the petitioner cannot be permitted to raise this point when he deliberately avoided the proceeding under Section 488, Cr. P. C.