Full Judgment
D.P. Mohapatra, J.
1. Being aggrieved by the order passed by thelearned Sub-divisional Judl. Magistrate, Puri on 16.3.1990 in Criminal Misc.Case No. 46 of 1989 refusing his prayer to consider the question of maintainability of the proceeding and to drop the proceeding forthwith, the petitionerfiled this application under Sections. 401 and 402, Criminal Procedure Code(shortly referred to as the 'Code') with the prayer to quash the said order andto drop the proceeding. The proceeding before the learned Magistrate wasinitiated on the application filed by the opposite party under Section. 125 of theCode claiming maintenance from the petitioner.
2. The opposite party filed the application under Section 125 of theCode claiming to be the wife of the petitioner which relationship is stronglydenied by the petitioner. It is stated by the petitioner in the revision petitionand not denied by the opposite party that in the application filed under Section125 of the Code, she stated, inter alia, that at the time of marriage she had noknowledge that the petitioner has married another lady previously and furtherthat the petitioner is a shrewed and litigant man and taking advantage of herinnocence and simplicity he cheated her not only in the monetary transactionbut also suppressed the facts of the previous matrimonial relationship andwedlock with one Binapani Das who was living at Bhubaneswar. After twoyears of her marriage she come to know that the petitioner is already marriedto another lady and has his children, the name of his wife is Binapani, that ofhis son is Ramapada Das, aged about 22 years, and that of his daughter isSarmita Das aged about 20 years.
3. It is the case of the petitioner that the opposite party has beenfalsely claiming to be his wife and has initiated several proceedings in differentCourts to harass him. To avoid such claims the petitioner filed O.S. No. 246of 1988 in the Court of the Subordinate Judge, Bhubaneswar to declare thatopposite party is not the wife of the petitioner and to permanently injunct herfrom laying any claim as his wife. In the said suit by order dated 11.11.1988the Subordinate Judge, granted temporary injunction against the opposite partyrestraining her from offensive jactitation of marriage till the disposal of the suit.Subsequently the suit was decreed ex-parte with the declaration that therehas been a jactitation of marriage by the defendant which is false and tendentious and accordingly the defendant is permanently injuncted from the act ofsuch jactitation of marriage. The decree was signed on 30.9.1989.
4. Thereafter the petitioner filed objection in the proceeding initiatedunder Section 125 of the Code raising the objection regarding its maintainabilityin view of the decree of Civil Court disentitling the opposite party from layingany claim as his wife and prayed to the learned Magistrate to consider thepoint and drop the proceeding forthwith. However the learned Magistrateby the impugned order rejected the petition and proceeded to record evidenceadduced on behalf of the opposite party (petitioner before the Magistrate).Hence, the grievance of the petitioner.
5. Sri G.S. Rath, appearing for the petitioner contends that thelearned Magistrate clearly erred in refusing to consider the question of maintainability of the proceeding, inasmuch as, in view of the decree passed by theCivil Court, the opposite party has no locus standi to file the application underSection 125 of the Code and the learned Magistrate is not competent to proceedwith the case initiated on the application filed by her. It is his further contentionthat continuing such a proceeding which is ex facie not maintainable will onlymean harassment to the petitioner and waste of public time. Sri. R.C. Rath,appearing for the opposite party made an attempt to support the order passedby the learned Magistrate.
6. The position is beyond controversy, indeed, it is clear from a bareperusal of the provisions under Section 125 of the Code that the term 'wife' usedin the Section means a legally married wife and includes a woman who hasbeen divorced by, or has obtained a divorce from, her husband and has notremarried. The benefit of the provision does not extend to a woman whosemarriage is null and void or to a concubine or mistress (See 1980 Crl. L.J.423, Bajirao Raghoba Tambare v. Miss Tolanbai and Another). In the presentcase the opposite party on her own showing claims to be the second wife of thepetitioner whose first wife is living; and therefore the alleged marriage of theopposite party with the petitioner is void in view of the provisions in Sections 5and 11 of the Hindu Marriage Act, 1955. To add to this is the decree of theCivil Court declaring that she is not the wife of the petitioner and has no rightto lay any claim on the basis of such relationship. In this view of the matterthere is no scope for doubt that the proceeding initiated on the applicationfiled by the opposite party under Section 125 of the Code was not maintainableand should have been dropped without proceeding further. The revisionpetition can be disposed of on this finding, but Sri G.S. Rath appearing forthe petitioner has raised certain other legal questions which may be of somegeneral importance. Therefore, I propose to deal with the contentions raisedby him.
The questions raised are these :
(a) What is the effect of a decree or order of the Civil Court on aproceeding under Section 125 of the Code;
(b) Whether an application under Section 127(2) of the Code can befiled to cancel the order of the Magistrate initiating a proceedingunder Section 125 of the Code even before an order for payment ofmaintenance is passed.
7. Coming to the first point formulated above, in my view, theprinciple is well-accepted that it is the bounden duty of a Criminal Court togive due weight and importance to a decree/order of the competent CivilCourts declaring the status/relationship of the parties. The Criminal Court is not entitled to go into the question of correctness of the decree/order of theCivil Court. It is also not open to the Criminal Court to take the view thathe is not bound by the decree/order of the Civil Court and will consider thequestion independently to come to his own conclusion. This view is foundedon the principle that the Civil Court is the competent forum to decide thestatus/relationship of the parties whenever there is a dispute regarding thesame and that forum having come to a particular conclusion its decisioncannot be lightly brushed aside or reconsidered by the Criminal Court. Thepoint has engaged the attention of different High Courts including this Court.I may notice here some of the decisions cited at the Bar, 1989 (II) Divorceand Maintenance Cases, 12 (Orissa), 1988 (II) Crimes 599 (Rajasthan), 1981 Crl.L.J. 151 (Punjab and Haryana), AIR 1947 Madras 425 and AIR 1944 Calcutta 17.
8. In the present case, in view of the Civil Court decree expresslydeclaring the opposite party to be not the wife of the petitioner and injunctingher from laying any claim on the basis of the said relationship, the learnedMagistrate ought to have considered the question of maintinability of the proceeding before proceeding further in the case and should not have postponedfor consideration of the matter.
9. Next I shall take up the second contention of Sri. G.S. Rath,whether a petition under Section 127(2) of the Code could be filed by the petitioner even before any order for payment of maintenance was passed in theproceeding under Section 125 of the Code. On perusal of the provision of Section127, it appears that the section deals with the question of alteration in allowance in a case where any order of payment of allowance has been made underSection 125 of the Code. It is also the common experience that petition underSection 127 is filed usually in the proceeding under Section 125 which has been concluded by passing an order for payment of maintenance. Such cases presentno difficulty regarding maintainability. In the present case the doubt arises, sincethe application to drop the proceeding under Section 125 of the Code was filed,as stated by Sri. G.S. Rath, under Section 127(2) of the Code during pendencyof the proceeding. At this stage, I may clarify the position that there is noexpress provision in Section 125 of the Code to enable the Magistrate to considerthe question of maintainability of the proceeding preliminarily if thepoint is raised by the opposite party. Sub-Section (2) of Section 127 reads asfollows :
'Where it appears by the Magistrate that, in consequence of anydecision of a competent Civil Court any order made under Section 125should be cancelled or varied, he shall cancel the order or, as the casemay be, vary the same accordingly.'
10. The question is/does the term any order under Section 125 includean order of the Magistrate initiating the proceeding under Section 125 and directing issue of notice to the opposite party therein to appear in the case ormeans only order directing, payment of maintenance to the applicant.It is stated at the Bar that there is no decided case specifically dealing with thepoint.
11. On giving my anxious consideration, I am inclined to take theview that the term 'any order made in a proceeding under Section 125' shouldbe given a wider meaning and not a restrictive one; in other words in anappropriate case the term may also include the order to initiate the proceeding under Section 125 and calling upon the opposite party to show cause on theapplication. Such an interpretation, in my view, will help in avoiding unnecessary harassment to the parties and waste of time of the Court in a case whereex facie, the proceeding under Section 125 is not maintainable. Viewed fromanother angle, this question of maintainability may not be of much significance.Generally speaking, in a case where objection to maintainability of the proceeding on the ground of lack of jurisdiction of the Court or want of locusstandi on the part of the applicant is raised, it is apt and proper that the Courtshould consider the question of maintainability first before proceeding toconsider the case on merit. Therefore, whether the objection relating tomaintainability of the proceeding is raised by filing an objection in the proceeding under Section 125 or by filing an application under Section 127(2) of the Codeis more a matter of form and should not create any serious difficulty on thepart of the Magistrate to consider the question. Depending on the facts andcircumstances of the case, the Magistrate in seisin of the proceeding underSection 125 of the Code should consider the question of maintainability of theproceeding raised before him and should deal with it before proceeding furtherin the case.
12. Coming to the facts of the present case as noticed earlier, thepoint of maintainability was raised relying on averments made by the oppositeparty-wife in her application in the petition filed under Section 125 of the Codeand the decree passed by the Civil Court. The matter did not involve anyenquiry into the complicated facts and the point if accepted was sufficientto render the proceeding invalid. Therefore, the learned Magistrate shouldhave considered the question of maintainability on the date fixed and shouldnot have postponed its consideration merely because some witnesses present inCourt were to be examined.
13. Shri R.C. Rath, appearing for the opposite party made a feebleattempt to refute the contentions raised on behalf of the petitioner butultimately gave up and accepted the analysis made and the conclusion reachedin the foregoing paragraphs.
14. On the analysis and the discussions in the foregoing paragraphs,considered from any angle, the conclusion is inevitable that the proceedingunder Section 125 of the Code is not maintainable. The revision petition is therefore allowed, the impugned, order is set aside and the proceeding in CriminalMisc. Case No. 46 of 1989 pending in the Court of the Subdivisional Judl.Magistrate, Puri is to be dropped; the learned Magistrate is directed to passappropriate order to that effect.