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High Court Of Calcutta
R.N.Dutt, J.
Shashanka Sekhar Nayak
VS.
Aloka Rani Nayak
Decided On : Aug 18, 1972
MAINTENANCE - ENFORCEMENT OF ORDER - CANCELLATION OF ORDER - JURISDICTION OF CIVIL COURT - DECREE FOR RESTITUTION OF CONJUGAL RIGHTS - LIMITATION.
Fact of the Case:
The petitioner, the husband, filed an application under Section 489(2) of the Code of Criminal Procedure for cancellation of an ex parte order for maintenance made against him in favor of the opposite party, the wife, under Section 488 of the Code. The petitioner argued that two decrees obtained by him in civil courts, one declaring the maintenance order inoperative and the other for restitution of conjugal rights, should be sufficient grounds for cancellation of the maintenance order.
Finding of the Court:
The court held that the civil court had jurisdiction to set aside the maintenance order on the ground of fraud, but there was no allegation of fraud in this case. The court also held that the decree for restitution of conjugal rights did not prove that the husband was willing to keep the wife with him with dignity or that the wife had refused to live with him without sufficient reason. Therefore, the court found that the learned Magistrate was justified in refusing to cancel the maintenance order.
Issues: 1. Whether the civil court had jurisdiction to set aside the maintenance order made by the Magistrate? 2. Whether the decree for restitution of conjugal rights obtained by the petitioner was sufficient ground for cancellation of the maintenance order? 3. Whether the claim in the case was barred by limitation?
Ratio Decidendi: 1. The civil court has jurisdiction to set aside an order for maintenance made by a Magistrate on the ground of fraud, but not on the ground that the Magistrate made the order without jurisdiction. 2. A decree for restitution of conjugal rights against the wife does not prove either that the husband is willing to keep the wife in his house with the dignity that she deserves or that the wife has refused to live with him without sufficient reason. 3. The claim in the case was barred by limitation.
Final Decision: The court discharged the Rules and dismissed the petitioner's application for cancellation of the maintenance order. The court also dismissed the claim in the case out of which Criminal Revision Case No. 410 arose, as it was barred by limitation. The court allowed the claim in the case out of which Criminal Revision Case No. 408 arose only for the period from February 1967 to November 30, 1967, and the claim in the case out of which Criminal Revision Case No. 409 arose only for the period from May 1968 to December 31, 1968, as the rest of the claims were barred by limitation.
1. THESE three Rules are heard together as they arise out of the same order.
2. THE petitioner is the husband. The opposite party is the wife. They were married on June 5, 1963. On March 15, 1965 the opposite party filed an application under section 488 of the code of Criminal Procedure for maintenance against the petitioner. The petitioner appeared but ultimately did not turn up and an exparte order for maintenance was made against him on June 29, 1965 directing him to pay a maintenance of Rs. 90/- per month to the opposite party with effect from the date of the order.
On November 9, 1967, the opposite party filed an application under section 488 (3) of the Code for enforcement of the order for maintenance for the period from October 29, 1965 to October 29, 1966. Subsequently, on January 9, 1868 the opposite party filed a further application for enforcement of the order for maintenance for the period from October 30, 1966 to November 30, 1967 and lastly, on September, 8, 1969 the opposite party filed an application for enforcement of the order for maintenance for the period from December 1, 1967 to December 31, 1968. The petitioner filed objections to the opposite party's applications for enforcement of the order for maintenance. Further, the petitioner filed an application on June 18, 1970 under section 489 (2) of the Code for cancellation of the order for maintenance. The opposite party resisted this application. The learned Magistrate rejected this application and directed enforcement of the order for maintenance for the periods for which the opposite party had applied for such enforcement. The petitioner then obtained these Rules.
3. THE petitioner alleges that after their marriage he was residing with the opposite party at Kharsia, tahashil and district Raigarh, in Madhya Pradesh. The order for maintenance was made by a Magistrate at Tamluk. On July 14, 1968, the petitioner filed a suit against the opposite party before the Second civil Judge, Class II, Raigarh, for a declaration that the exparte order for maintenance made by the Magistrate at tamluk was inoperative and for a mandatory injunction on the opposite party restraining her from enforcing that order. This suit was decreed exparte on December 4, 1968. Further, the petitioner filed a Civil Suit, Civil Suit No. 27a of 1969 before the Court of the second Additional District Judge, Raigarh, against the opposite party for a decree for restitution of conjugal rights under section 9 of the Hindu Marriage act. This suit was decreed exparte on February 7, 1970.
4. MR. Bhose submits that in view of these two decrees of the Civil Courts the order for maintenance should be cancelled. Let us first deal with the decree passed by the Second Civil judge, Class II, Raigarh, declaring the exparte order for maintenance inoperative. The order for maintenance was sought to be executed at Raigarh and following the Allahabad High Court's decision in (1) Gauri Devi v. Bishwanath Banerjee, A. I. R. 1970 All. 185, it may be said that the Civil Court at Raigarh has jurisdiction to entertain a suit for setting aside the order for maintenance made by the Magistrate at tamluk. But then I find that the allegation made by the petitioner in that suit is that the Magistrate at Tamluk made the order for maintenance without jurisdiction and the Civil Court found that the order was made without jurisdiction. There was no allegation that the order for maintenance was obtained by fraud or that fraud was played upon the Court and the suit was not for setting aside the order of the Magistrate at tamluk on the ground of fraud. Mr. Bhose refers to the Supreme Court decision in (2) Firm of Illuri Subbayya chetty and Sons v. State of Andhra pradesh, A. I. R. 1964 S. C. 322, where the supreme Court has said that there is a general presumption that there must be a remedy in the ordinary civil courts to a citizen claiming that an amount has been recovered from him illegally and that such a remedy can b
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