The revision petitioners are mother and child, who were affected by a decision of the Sessions Judge, Palakkad reversing the finding in M.C. No. 43/91 passed by the Additional Judicial First Class Magistrate, Palakkad. As per the order of the said Magistrate, the husband's application for cancellation of an earlier order for maintenance was dismissed; but the impact of the order of the Sessions Judge is that the maintenance granted in M.C. No. 27/81 is rendered unenforceable albeit with prospective effect.

More details : M.C. No. 27/81 was filed by the present revision petitioners before the Chief Judicial Magistrate's Court, Palakkad seeking maintenance for the wife and child. The Court allowed maintenance to them at the rate of Rs. 180/- and Rs. 100/- per mensem respectively. O.P. No. 39/80 had been filed by the respondent herein seeking dissolution of marriage in the Sub-Court, Palakkad and in I.A. No. 3265/80 order for permanent alimony had been sought for by the petitioners. When O.P. No. 39/80 was subsequently dismissed, the aforesaid I.A. seeking alimony was also dismissed stating that there was no evidence. The matter was taken up in appeal to the District Court, Palakkad through A.S. No. 144/81. The appeal was dismissed and that was the subject matter of S.A. No. 115/83 of this Court. On 3-10-1988 this Court found that the orders impugned did not suffer from any material defect; but taking into account the plight of the wife and child it was directed that a sum of Rs. 5,000/- should be deposited in the name of the child in three instalments and that the present respondent should also deposit Rs. 2,000/- in the name of the child every year.

After the aforesaid judgment was passed by this Court, the respondent filed M.C. No. 43/91 seeking cancellation of the earlier order directing maintenance passed in M.C. No. 27/81. This motion was under Section 127(2) of the Cr. P.C. The learned Additional Judicial First Class Magistrate found that there was no justification for modifying the earlier order and accordingly dismissed the said petition. In revision, the learned Sessions Judge, Palakkad ordered on 31-3-1995 that the findings of the civil Court are binding on the criminal Court and that the impact of denying permanent alimony to the wife and child is that they are not entitled to maintenance under the criminal law also. Taking that view, the order of the Judicial First Class Magistrate was reversed and the order granting maintenance passed by the Chief Judicial Magistrate in M.C. No. 27/81 was cancelled.

The learned counsel for the revision petitioners submitted that there was absolutely no justification for interfering with the order of the Judicial First Class Magistrate and that this is not a case where a regular suit or petition was filed seeking maintenance before the Court either under the Hindu Adoptions and Maintenance Act or otherwise and that an observation made by this Court while disposing of S.A. No. 115/93 should not stand in the way of the criminal Court considering maintenance for the wife and child independently. During arguments, the learned counsel also placed reliance on Section 25 of the Hindu Marriage Act in this regard.

Sections 25(1) and 25(2) of the Act are quoted hereunder :

"25. Permanent alimony and maintenance. - (1) Any Court exercising jurisdiction under this Act may, at the time of passing any decree or at any time subsequent thereto, on application made to it for the purpose by either the wife or the husband, as the case may be, order that the respondent shall pay to the applicant for her or his maintenance and support such gross sum or such monthly or periodical sum for a term not exceeding the life of the applicant as, having regard to the respondent's own income and other property, if any, the income and property of the applicant, it may seem to the Court to be just, and any such payment may be secured, if necessary, by a charge on the immovable property of the respondent.