P.K. RADHAKRISHNAN Vs. RAJESWARI
HIGH COURT OF MADRAS
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Suryamorthy, J. -
(1.) THIS is a petition to quash all further proceedings in M.C. No. 1644/77 on the file of the Chief Metropolitan Magistrate, Egmore, Madras. The petitioner is the husband. The respondent is his wife. She has filed a petition numbered as M.C. 1664/77 under S. 125 of the Crl. P.C. in the Court of the Chief Metropolitan Magistrate, Egmore Madras, for payment of maintenance. She would appear to have filed similar petitions earlier and succeeded in getting maintenance. Obviously, because the maintenance awarded to her earlier is no longer adequate for her maintenance in view of the rise in the cost of living, she has filed this petition. The learned counsel for the petitioner contends that the petition for divorce and the petition for custody of the minor children filed by him are pending disposal and that therefore, the proceedings initiated by the respondent in M.C. No. 1664/77 should be quashed. This petition purports to be under S. 482 of the Criminal Procedure Code. Under the first limb of S. 482, the inherent powers of this Court can be exercised to give effect to any order passed under the Code of Criminal Procedure. This is not a petition to give effect to any such order. Under the second limb of the Section, this court can pass an order to prevent the abuse of the process of any Court. Filing a petition under S. 125 of the Crl. P.C. for enhanced payment is not an abuse of the process of the court. The right of a wife to maintenance by resorting to the provisions of S. 125 of the Crl. P.C. is a legal right and exercising the right by initiating proceedings is not an abuse of the process of the Court.
(2.) On the other hand, this petition before this court is really an abuse of the process of the Court. Under the third limb of the Section, the inherent jurisdiction of this court can be invoked for passing an order to secure the ends of justice. The ends of justice are not what the petitioner thinks they are. The ends of justice can be best served only after the learned Magistrate hears both parties, records their evidence and passes a judicial order. The learned counsel for the petitioner contends that the respondent is guilty of adulterous conduct. That is an allegation which he has to prove to the satisfaction of the trial Magistrate. The fact that a petition for divorce is pending in the City Civil Court cannot be a bar to the learned Magistrate proceeding with the enquiry under S. 125 of the Crl. P.C, because, even if the petitioner succeeds in getting a decree of dissolution of the marriage, the respondent will be entitled to maintenance as a "wife" within the meaning of S. 125, Explanation (b), which includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried. No doubt, if the petitioner succeed in proving that she is living in adultery, the respondent will not be entitled to maintenance. That is a defence which the petitioner herein can put forward before the learned Magistrate and if be succeeds in proving his contention, the respondent will not be entitled to claim any maintenance. That is a matter for evidence. In the circumstances, this petition is misconceived and is, therefore, dismissed. The learned Magistrate who is seized of M.C. No. 1664/77 is directed to expedite the enquiry and dispose of the same within two months from this date.;
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