@JUDGMENTTAG-ORDER
Suryamurthy, J.@mdashThis is a Criminal Revision against the, order of the learned 11th Metropolitan Magistrate, Madras, upholding a
preliminary objection raised by the respondent herein and dismissing a petition under S. 125 of the Criminal Procedure Code filed by the revision
petitioner claiming maintenance from her husband who is the respondent. The revision petitioner has obtained a decree for maintenance against the
respondent herein in O.S. No. 135 of 1967 on the file of the District Munsif''s Court, Vizianagaram. O.S. No. 195 of 1975 was again filed by her
in the Court of the Principal District Munsiff, Vizianagaram for enhancement of the maintenance. That suit also was decreed subsequently.
Obviously, because the revision petitioner was not able to execute the decree of the Civil Court against the respondent herein who is residing in the
City of Madras and who is employed in the Manali Oil Refineries as a Chemical Engineer, she has filed a petition under S. 125 of the Criminal
Procedure Code for recovery of the maintenance.
2. A preliminary objection was raised before the learned Magistrate that in view of the decrees of the Civil Courts the petition for maintenance
under S.125 of the Criminal Procedure Code is not maintainable. The learned Magistrate after observing that ""there is nothing in S.125, Crl. P.C.
that the existence of a Civil Court decree would ipso facto bar a proceeding under that Section"" has held that as the revision petitioner is in a
position to realise the amount due under the decree, she cannot get a further and separate order for maintenance under S.125, Crl. P.C.
3. This order of the learned Magistrate cannot be sustained. The existence of a decree for maintenance passed by a Civil Court is not a bar to
proceedings under S.125 Crl. P.C. being initiated, and an order of maintenance being passed in favour of the petitioner if the facts of the case
warrant the grant of maintenance. However, reliance is placed by the learned counsel for the respondent, a decision of Sadasivam, J., reported in
Govindaswami Mudaliar v. Muthulakshmi Ammal 1966 1 M.L.J 208 : 78 L.W. 656 in support of the contention that the question whether a
decree of a Civil Court would bar an action under S.488 of the old Criminal Procedure Code corresponding to S. 125 of the Criminal Procedure
Code Act (2 of 1974) would depend on the facts and circumstances of each case. But the learned counsel has failed to read the judgment further
wherein the learned Judge has laid down that ""if a decree for maintenance passed by a Civil Court is unexecutable or unrealisable for some reason
or other, as for instance, where it is held that the defendant has no means to pay or that he has become an insolvent, the only remedy by the
maintenance holder is to resort to S.488 of the Code."" This view of the learned Judge, which I respectfully adopt, is sufficient to deal the fatal blow
to the argument of the learned counsel for the respondent.
4. In Linga Goundar v. Raman 1977 M.L.J. (Crl.) 455 : 1977 L.W. (Cri.) 188, Natarajan, J., has held that ''''S.125, Cr.P.C. does not lay down
that the existence of a decree for maintenance passed by a Civil Court will bar the jurisdiction of a Magistrate to entertain a petition under S.125
for maintenance."" Apart from that, we have a number of decided cases which clearly lay down that the existence of a civil decree for maintenance
cannot operate, as a bar to a proceeding for obtaining maintenance, being instituted under the Criminal Procedure Code. Again, the learned Judge
has observed that ""the manner in which S.489(2) of the Criminal Procedure Code of 1898 was framed and sub-S. (2) of S.127 of the 1973 Code
is worded would clearly show that for the Civil Court''s pronouncement to have an impact on the order of maintenance made by a Magistrate it
should have been later in point of time"". With this view of the learned Judge I respectfully agree.
5. In the instant case, the status of the revision petitioner as the legally wedded Wife of the respondent and her right to claim maintenance from him
on the grounds alleged by her in the suit have been upheld by the Civil Court. Therefore, it is not open to the Criminal Court to go into the question
whether she is the legally wedded wife and whether she is entitled to maintenance hereafter. As a petition under S.125 of the Criminal Procedure
Code is not barred by a decree of the Civil Court she is now entitled to file a, petition and claim maintenance. The learned Magistrate, however,
will have to take note o the decree of the Civil Court in determining the quantum of maintenance payable, regard being had to the altered
circumstances, if any, since the date of the decree. Therefore, the order of dismissal of the petition under S.125, Cr.P.C. by the learned Magistrate
is set aside and the matter is remanded to the Chief Metropolitan Magistrate, Madras for transfer of the case to the file of any other Metropolitan
Magistrate for enquiry and disposal. The petition shall be taken up and disposed of expeditiously.
