9911796707
TMI Blog1980 (12) TMI 197X X X X Extracts X X X X X X X X Extracts X X X X ..... ried more than 25 year? ago and even way back in 1960, a petition under Section 10 of the Hindu Marriage Act claiming a decree of judicial separation was filed by the petitioner-' husband, which was, however, dismissed on September 27, 1963. Later, in the year 1965, the respondent-wife preferred an application for maintenance under Section 488 of the old Code of Criminal Procedure, which was allowed and a monthly maintenance allowance of ₹ 50 was ordered on the 25th of June, 1965. Feeling dissatisfied later with the quantum of maintenance, the respondent-wife moved an application for enhancement thereof, but she did not meet with any success in the Court of the Magistrate who dismissed the same on the 16th of September, 1975. A re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oved an application under Section 127(2) of the Code of Criminal Procedure, 1973 (hereinafter referred to as the new Code), seeking cancellation of the maintenance order on their basis. On 6-2-1978 Shri G. S. Mann, Judicial Magistrate, 1st Class, Sangrur, accepted the petitioner-husband's prayer and cancelled the order of maintenance in favour of the respondent-wife in accordance with the civil Court decree. A revision petition was then carried against the said judgment by the respondent-wife, which came up before the learned Sessions Judge, Sangrur, who, vide his order dated 16th of August, 1978, accepted the same, set aside the order of the learned Magistrate and remanded the matter for fresh decision. The case then went back to the A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ewith. 7. In construing the statutory provisions and appraising the ' arguments of the learned Counsel for the parties, I may notice at the very outset that, as a matter of sound judicial restraint, I would not wish to proceed beyond the specific question which arises for determination here and to opine on the question in abstract The direct issue herein is whether a decree of the Civil Court of competent jurisdiction, specifically on the liability and the quantum of maintenance, would be normally binding on the Magistrate so as to entail a necessary variance or cancellation of the earlier order of maintenance. At present, I do not feel called upon to answer the larger issue whether all Civil Court decrees, which may be relevant or h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ded to read a mandatory provision as a directory one or vice versa, i.e., to read a directory provision as an obligatory one. 9. Now, apart from the specific language in Section 127(2) of the new Code, it appears on the larger principle also as well settled that where civil rights of the parties are involved, the plenary jurisdiction is with the civil Courts and normally their decrees must override or have a precedence over a parallel or equivalent jurisdiction. This principle does not need any great elaboration now in view of the binding precedents on the point. In Captain Ramesh Chander Kaushal v. Mrs. Veena Kaushal MANU/SC/0067/1978 : 1979CriLJ3 whilst construing the analogous provisions of Section 125 of the new Code Krishna Iyer, J. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dgment that directly covers the issue is State of Mysore v. Nagappa MANU/KA/0076/1968. It has only to be borne in mind that Section 127(2) of the new Code is in pari materia with Section 489(2) of the old Code. Construing the latter provision, Khan, J., observed as under: Under Section 489(2) of the Code of Criminal Procedure, the Magistrate can vary or alter the order of maintenance if the circumstances so required. When it is brought to his notice that a decree for maintenance has been passed by the Civil Court it is the duty of the Court to consider whether that decision of the Civil Court leads to the consequence that the order passed by the Criminal Court under Section 488 should be cancelled or varied. 10. Now, in fairness to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 969. It is unnecessary to advert to these cases in detail because they are plainly distinguishable. In most of, if not in all, these cases the argument for cancellation or variation of the original order of maintenance was sought to be based on a decree of restitution of conjugal rights obtained by the husband. As I said earlier, it is not apt to delve into the abstract question of the effect and impact of all the civil decrees on the earlier order of maintenance under Section 125 of the new Code. The cases aforesaid arise on their individual set of facts and their correctness or otherwise can only be examined when these issues arise directly for decision. Herein the sole question is whether the decree of the Civil Court, specifically on th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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