whether a christian wife can file a suit for maintenance like Hindus and Muslims ?; whether the proceedings under Sec.125 Cr.P.C is maintainable when a civil court has disallowed maintenance for the wife in a civil suit? = K.R. Sagayaraj .... Petitioner vs 1.Mrs.C. Rajammal 2.S. Vineet Roy ... Respondents = judis.nic.in/judis_chennai/filename=28608

whether a christian wife can file a suit for maintenance like Hindus and Muslims ?
The parties are governed by the Indian Christian Marriage Act, 1872 and the Divorce Act, 1869. None of the above Acts deals with maintenance to  a Christian wife.
 The right of a Christian wife to claim maintenance under the Divorce Act 1869 is subject to a proceeding under the Act. Unlike the right of a Hindu wife under the Hindu Law or under The Hindu Maintenance and Adoption Act   or the right of Muslim woman under the Mohamedan Law, the right of maintenance to a Christian wife is not under any statute. It is based on law of equity and justice. The wife is entitled to  resort to proceedings before a Civil Court for the enforcement of such maintenance right. It is only the adoption of different methods for the enforcement of right to maintenance.

whether the proceedings under Sec.125 Cr.P.C  is maintainable when a  civil court has disallowed  maintenance for the wife  in a civil suit?
The civil suit was dismissed  on the ground that the wife has not proved desertion by her husband. The wife has not filed an appeal against this finding, but has chosen an alternative remedy of approaching Criminal Court, which is a statutory right and a summary proceeding.  Both are independent rights. While granting maintenance, if there is any pre-existing order of maintenance, the court has to take into consideration of such order to pass a decree. Except that there is no bar for approaching a criminal court under Sec.125 Cr.P.C.

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED:     12.11.2010

CORAM

THE HONOURABLE MR. JUSTICE G.M. AKBAR ALI


CRL.O.P.No.22949 of 2009
and M.P.Nos.1 of 2009 and 1 of 2010


K.R. Sagayaraj           .... Petitioner

vs

1.Mrs.C. Rajammal
2.S. Vineet Roy        ... Respondents

Criminal Original Petition filed under Section 482 Cr.P.C. for the reliefs as stated therein.

For petitioner : Mr.T. Arul

For respondents : Mr.Auxilia Peter

        O R D E R

The petition is filed seeking a direction to call for the records in M.C.No.379 of 2009 on the file of the learned II Additional Family Court, Chennai and quash the same.

2. A short point arises for consideration in this petition is
whether the proceedings under Sec.125 Cr.P.C  is maintainable when a  civil court has disallowed  maintenance for the wife  in a civil suit?
3. The  petitioner is the husband and the respondents are the wife and chid of the petitioner. The petitioner and the 1st respondent got married on 10.2.1992 according to Christian Rights and Customs.  The 2nd respondent was born on 13.8.1993.  The matrimonial relationship between the petitioner and the 1st respondent lasted only for a short time and difference arose between them and the matter was taken to various forums for conciliation and the conciliation failed. The husband and wife are living separately from 1997 and the 2nd respondent is with the mother.

4. The 1st respondent filed a suit in OS.No.58/97 before the Family Court at Chennai for maintenance claiming Rs.3000/-for each respondents. The petiitoner filed O.P.No.14/98 for dissolution of marriage on the grounds of desertion and cruelty u/s 10(1)(ix) and 10 of Indian Divorce Act.

5. The petitioner contested the maintenance suit stating that the 1st respondent has deserted him and is living separately without any reason and therefore, she is not entitled for maintenance.

6. The Principal Family Court passed a common order dated 30.6.2004, partly allowing  the maintenance suit thereby decreeing a sum of Rs.3000/- for the 2nd respondent/child and held that the 1st respondent is not entitled for maintenance as she has not proved desertion by the husband.  The Court has also dismissed the petition for dissolution of marriage as the husband has not proved the desertion and cruelty. Aggrieved by the order of  maintenance, the petitioner has preferred in appeal in A.S.No.956/2005 before this court and the same is pending.

7. Meanwhile, the 1st respondent has initiated proceedings under Sec.125 Cr.P.C before the Family Court in M.C.NO.379/2009. The husband has come forward with the above petition to quash the above proceedings on the sole ground that the petition is not maintainable as the civil court has already disallowed the maintenance. Therefore, the only point for consideration arises is
whether a subsequent application under Sec.125 Cr.P.C is mainteinable when the wife's suit for maintenance was dismissed on merits.

8. Mr.T.Arul, learned counsel for the petitioner would submit that the civil court had gone into detail in the suit for maintenance and has held that the 1st respondent is not entitled for maintenance and therefore, the subsequent application for the same relief under Sec.125 Cr.P.C is not maintainable.

9. The learned counsel relied on a judgment of the Bombay High Court reported in Vol II 1986 DMC 386 (Muralidhar Chintaman Waghmare vs Pratibha Muralidhar Waghmare and another). The High Court of Bombay answering to a similar question held as follows:
"Once the Civil Court of competent jurisdiction comes to the conclusion that the wife is not entitled to maintenance, the Criminal Court under Sec.125 Cr.P.C is bound by that decision as proceedings in Civil Court are substantial whereas proceedings under Section 125 Cr.P.C are of a summary nature". 

10. The learned counsel relied on a decision reported in 1989 Crl.LJ 2037 (1) (G. Ramanathan vs Mrs. Revathy)  wherein David Annoussamy J has held as follows:
" 4. When a competent Civil Court has already (sic) of the matter and when it is possible without incurring any expenditure or any other inconvenience to approach, by way of a simple petition, the Civil Court so as to obtain maintenance, it is not proper on the part of the wife to go before the Magistrate for an order.  The proper course is to approach the Civil Court which is already seized.  Further under S.127 of the Cr.P.C, if an order regarding maintenance is passed by the competent Civil Court, the Magistrate should have to set aside its own order which is more in the nature of a temporary measure made after a summary hearing to meet an emergent situation.  Therefore, the fact of seizing the Magistrate when the competent Civil Court has been already seized would cause only judicial waste of time since the order obtained is ultimately liable to be cancelled.  I therefore come to the conclusion that the institution of a proceeding under Sec.125 Cr.P.C when a civil proceeding is already pending between the parties under the Hindu Marriage Act is against the scheme of law contemplated under the Hindu Marriage Act, 1955 and Chap IX of the Cr.P.C.

11. On the contrary Mrs. Auxila Peter,  learned counsel for the respondents would submit that the proceedings in a civil court for maintenance  is not a bar for the proceedings under Sec.125 Cr.P.C.   The learned counsel pointed out that the right under Sec.125 Cr.P.C is an independent right. The learned counsel relied on a decision reported in (1991 (1) MLJ 290 (Vanaja vs Gopu), wherein on consideration of a claim of interim maintenance under Sec.24 of the Hindu Marriage Act and simultaneous claim of maintenance under Sec.125 Cr.P.C , this Court held as follows:

"It is thus clear that the right to claim maintenance or litigation expenses under Section 24 of the Hindu Marriage Act, is not made available generally to the parties to a marriage, but only when a proceeding between the spouses is pending under that Act, and in that respect, the right conferred under Section 24 of that Act, is in the nature of a special statutory right not in any manner outside the provisions Section 24 of the Hindu Marriage Act.  The purpose behind Section 24 of the Hindu Marriage Act is that parties to a matrimonial cause should not take undue and unfair advantage of a superior financial capacity to defeat the rightful claims of a weaker party and the proceedings under Section 24 of that Act serve a limited purpose, i.e., during the pendency of proceedings under that Act, to enable the weaker party to establish rights without being in any manner hindered by lack of financial support. If the special nature of the statutory right under Section 24 of that Act and its purpose, are borne in mind, it is at once clear that the enforcement of that right, cannot in any manner be hedged in by a consideration of proceedings otherwise initiated, either under Section 125, Cr.P.C or under the ordinary law".

12. The learned counsel also relied on an unreported judgment in C.R.P(PD) NO.4001 of 2008 dated 25.8.2009, wherein this court has again dealt with the question whether a pre-existing order for payment of maintenance granted by the Chief Judicial Magistrate under Sec.125 Cr.P.C is a bar for maintaining an application under Sec.24 of Hindu Marriage Act and held that it is not a bar and both are independent proceedings.

13. Heard and perused the materials available on record.

14. This is a pathetic case of a wife who has been denied of maintenance from her husband from 1997. She had filed O.S.No.58/97 before the Family Court for maintenance for herself and her child. The Family Court declined to grant the relief holding that she has not proved her case of desertion by her husband. But the Court has granted maintenance for her child against which, the husband has gone an appeal and this court has passed an order of stay on a condition that the husband shall deposit the arrears of maintenance till the date of order.  That was the period from 4.12.1997 to 9.11.2005. The petitioner has moved the Family Court again under Sec.125 Cr.P.C in MC No.379 of 2009. This is also opposed by the husband. The parties are governed by the Indian Christian Marriage Act, 1872 and the Divorce Act, 1869. None of the above Acts deals with maintenance to  a Christian wife. 


15. Sec.37 of the Divorce Act, 1869 reads as follows:
37. Power to order permanent alimony:

Where a decree of dissolution of the marriage or a decree of judicial separation is obtained by the wife, the District Court may order that the husband shall to the satisfaction of the Court, secure to the wife such gross sum of money, or such annual sum of money for any term not exceeding her own life, as having regard to her fortune (if any), to the ability of the husband, and to the conduct of the parties it thinks reasonable; and for that purpose may cause a proper instrument to be executed by all necessary parties"
Power to order monthly or weekly payments
In every such case the Court may make an order on the husband for payment to the wife of such monthly or weekly  sums for her maintenance and support as the Court may think reasonable;
Provided that if the husband afterwards from any cause becomes unable to make such payments, it shall be lawful for the Court to discharge or modify the order, or temporarily to suspend the same as to the whole or any part of the money so ordered to be paid, and again to revive the same order wholly or in part, as to the Court seems fit.       

            16. Except this there is no other provision in the Special Acts providing maintenance for a Christian wife. 
                     Sec.125 of Cr.P.C reads as follows:
"Order for maintenance of wife, children and parents:
(1) If any person having sufficient means neglects or refuses to maintain -
(a) his wife, unable to maintain herself
.......
(4) No wife shall be entitled to receive an allowance from her husband under this section if she is living in adultery, or if, without any sufficient reason, she refuses to live with her husband, or if they are living separately by mutual consent."

17. The right of a Christian wife to claim maintenance under the Divorce Act 1869 is subject to a proceeding under the Act. Unlike the right of a Hindu wife under the Hindu Law or under The Hindu Maintenance and Adoption Act   or the right of Muslim woman under the Mohamedan Law, the right of maintenance to a Christian wife is not under any statute. It is based on law of equity and justice.
 A Division Bench of this Court in Mrs.Stella Pakkam vs Rajiah Ratnam (AIR 1966 Madras 225) S. Ramachandra Iyer, CJ and Kunhamed Kutty, J dealt with the law applicable  to the Christians in India and observed as follows:
"19.........
That a wife, in England, could not, but for the statute, agitate her claim for maintenance against her husband by an action, is more or less due to a historical development of the law due perhaps to the basic concept of the spouses being one in the eye of law.  That rule has not been accepted in America. There is less reason in this country for the acceptance of any such rule, where under S.9.CP.C the court has jurisdiction to try all suits of a civil nature except those the cognizance of which has been either expressly or impliedly barred.

21. Devasahayam vs Devamony, ILR 16 Mad 133 (AIR 1923 Mad 211) was a case where the husband's application for dissolution of the marriage with his wife was dismissed. But while so doing, the lower court granted a certain sum of money, payable every month as permanent maintenance to the wife.  A Bench of this Court held that, apart from the provisions of S.37 of the Indian Divorce Act, there would be no power in the Court to grant permanent alimony and the suit for dissolution of marriage having been dismissed, there was no justification for the award of maintenance.
 At the same time, it was observed:
"If she wants maintenance without either judicial separation or divorce, she can have the remedy only by filing a suit or an application under the Criminal Procedure Code"
A right to agitate the wife's claim to separate  maintenance apart from proceedings under the Indian Divorce Act, has thus been accepted".

             18.  The  question whether a Christian wife is entitled for a maintenance from her husband and if so, under what statute and procedure she should adopt for enforcing such a right, will have to be decided not on the technical notions but on principles of equity and justice and by adopting  the procedural law. The defences available for refusal of such maintenance by the husband will also based on equity and justice. 

            19.  The method and manner of enforcing this right is by way of filing a civil suit or claiming a maintenance  in a proceeding pending under the Divorce Act. Like any other person  the Christian wife may also resort to the proceedings under Sec.125 Cr.P.C with an expectation that she would get quicker and speedy relief in those proceedings. The wife is entitled to  resort to proceedings before a Civil Court for the enforcement of such maintenance right. It is only the adoption of different methods for the enforcement of right to maintenance.
                                                                                                                                                                                                                                         
20. While dealing with the question whether a pre-existing order for payment of maintenance under Sec.125 of Cr.P.C is a bar for maintaining an application under Sec.24 of the Hindu Marriages Act, the Courts are of the uniform view that it is not a bar and both the reliefs are independent of each other. It is well settled that a claim under Sec.24 of the Hindu Marriages Act is a relief of interim maintenance during the pendency of matrimonial proceedings. Initiation of a legal proceedings under the Hindu Marriages Act is a condition precedent whereas the claim under Sec.125 Cr.P.C is a social relief. The civil courts granting maintenance  have only to take into consideration of the pre-existing order of such payment of maintenance by the criminal court.

21. The decisions relied on by both counsels deals with the right of a Hindu wife under two enactment. As stated above the Christian wife can claim maintenance from her husband through criminal proceedings and through civil proceedings.  She may pursue both criminal and civil proceedings simultaneously as there is no legal bar. Denial of maintenance by a civil court for maintenance will not act as bar for a claim under Sec.125 Cr.P.C.

22. Under Sec.125 Cr.P.C a wife who is unable to maintain herself is entitled for maintenance.  Under clause 4 of Sec.125 Cr.P.C., She is not entitled to receive such maintenance from her husband if, without any sufficient reason refuses to live with her husband.

23. The civil suit was dismissed  on the ground that the wife has not proved desertion by her husband. The wife has not filed an appeal against this finding, but has chosen an alternative remedy of approaching Criminal Court, which is a statutory right and a summary proceeding.  Both are independent rights. While granting maintenance, if there is any pre-existing order of maintenance, the court has to take into consideration of such order to pass a decree. Except that there is no bar for approaching a criminal court under Sec.125 Cr.P.C.
24. The order passed in the civil court will not be a bar. Therefore, there is no merit in the petition.  Hence the criminal original petition stands dismissed. Consequently, connected Mps are closed.








sr

To

The II Additional Family Court,
Chennai

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