REFERENCE UNDER SECTION 438 CRPC IN VENKAVVA Vs. CHENNAPPA MAHALINGAPPA TELI

JUDGEMENT

(1.) This reference has its source in proceedings commenced Under Section 488 of the Code of Criminal Procedure, by one Venkayva, claiming to be the wife of one Channappa. Channappa who resisted the application filed by Venkavva for maintenance, pleaded that the marriage between him and Venkavva had become dissolved under a document executed by Venkavva on March 24, 1960. The Magistrate refused to investigate into the question whether there had been a divorce between Venkavva and Channappa and thought that until Channappa obtained a decree from a competent civil court that the marriage between him and Venkavva had become dissolved, Venkavva was entitled to ask the criminal court to make a decree for maintenance Under Section 488 of the Code of Criminal Procedure.

(2.) In this reference made by the Sessions Judge, at the instance of Channappa, it is pointed out by the Sessions Judge that the Magistrate could not have declined to make an investigation into the plea of divorce raised by Channappa.

(3.) With this view taken by the Sessions Judge, I entirely agree. Before an order for maintenance could be made in favour of Venkavva, the Magistrate to whom an application was presented Under Section 488 of the Code of Crimi- nal Procedure, had to find whether or not the plea of divorce taken by Channappa was a good plea. If, as contended by Channappa, the marriage between him and his wife had become legally dissolved by divorce, it was not possible for the Magistrate Under Section 488 to make an order for maintenance against Channappa. In an application presented Under Section 488 of the Code of Criminal Procedure, by a person claiming to be the wife of another, if the person against whom the application is presented contends that the person claiming maintenance is no longer his wife, the contention, if established, will put it out of the power of the Court to award maintenance Under Section 488 of the Code of Criminal Procedure. Although an enquiry into that contention in a criminal case is bound to be not as thorough and adequate as it would be in a civil suit, and although a finding recorded in a criminal case on that question may not be binding on a civil court if the same question is raised before it, it is obvious that if a plea is taken that there has been a legal dissolution of the marriage by divorce, by a person from whom maintenance is claimed, the Criminal Court before which that contention is raised, cannot decline to investigate into that plea. By refusing that investigation, what the criminal court would in effect be doing would be to make an order for maintenance even without, in the first instance, finding, as it is bound to do, whether or not the marriage or the connubial state between the two spouses has been dissolved or is continuing. The foundation of a claim Under Section 488 in such circumstances, being the continuance of the connubiality, the refusal to enquire into the question would amount to a failure to1 exercise jurisdiction.