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1977 Supreme(Ker) 294
Judges : P.JANAKI AMMA
N.M.Velayudhan - Appellant
Versus
P.Sukumari - Respondent
Case No : Criminal Misc. Petn. No. 1067 of 1976
Decided On : 12/21/1977
Advocates Appeared :
For the Petitioner: M. Mathai (Elanjickal) and M. K. Raghavan, Advocates. For the Respondent: K. Ravindranathan Nair, Advocate.
The main legal point established in the judgment is the need for a harmonious construction of statutory provisions and the sparing exercise of inherent powers by the High Court to prevent abuse of process or secure justice.
Headnote:
Maintenance - Restitution of Conjugal Rights - S. 482, Cr.P.C. - S. 397(2) - S. 397(3) - S. 399(3) - S. 125 - S. 127(2) - Interpretation of S. 127(2) - Exercise of Inherent Powers of High Court - Impact of Decree for Restitution of Conjugal Rights on Maintenance Order - Judicial Discretion in Varying or Cancelling Maintenance Order - Case Law on the Subject
Fact of the Case:
The petitioner, respondent in a maintenance case, sought cancellation of the maintenance order after obtaining a decree for restitution of conjugal rights. The lower courts declined to cancel the maintenance order, prompting the petitioner to file a petition invoking the inherent jurisdiction under S. 482, Cr.P.C.
Finding of the Court:
The court addressed the conflicting decisions on the exercise of inherent powers when a revision petition is barred under S. 397(2) or S. 397(3) and S. 399(3) of the Code of Criminal Procedure. It emphasized the need for a harmonious construction of Ss. 397 and 482 and the sparing exercise of inherent powers to prevent abuse of process or secure justice.
Issues: The main issue was the impact of a decree for restitution of conjugal rights on a maintenance order under S. 125 and the exercise of judicial discretion in varying or cancelling the maintenance order. Additionally, the court addressed the maintainability of the petition under S. 482, Cr.P.C.
Ratio Decidendi: The court held that the exercise of inherent powers should be sparing and only when there is no specific provision in the Code for redress. It emphasized the need to consider the circumstances of each case and exercise judicial discretion before varying or cancelling a maintenance order based on a decree for restitution of conjugal rights.
Final Decision: The court dismissed the petition, affirming the lower courts' exercise of discretion in refusing to cancel the maintenance order, and held that it was not a fit case to invoke the inherent jurisdiction of the High Court.
The petitioner is the respondent in M.C. 27 of 1970 of the District Magistrate's Court, Kottayam. That case was initiated by his wife, respondent herein for maintenance for herself and her two children. Maintenance was allowed at the rate of Rs. 30/- for the respondent and Rupees 15/- each for the two children. While the above petition was pending, the present petitioner filed H.M.A. No. 91/71 before the Sub-Court, Kottayam for restitution of conjugal rights against the present respondent. That petition was allowed on 30-1-74. Thereafter the present petitioner filed C.M.P. 134/74 contending that the wife was not entitled to get maintenance from the husband and seeking cancellation of the order for maintenance already made. The petition was opposed by the present respondent. The Chief Judicial Magistrate dismissed his petition stating that the order for restitution of conjugal rights was not a ground for cancellation of the order for maintenance passed by that court. The petitioner took the matter in revision before the Court of Session, Kottayam. The learned Sessions Judge relying on the decisions in Fakruddin Shamsuddin v. Bai Jenab (AIR 1944 Bom 11) : (45 Cri LJ 271) and Haji Hussain Sulaiman Hodekar v. Rukhya Bi (1962 Ker LJ 783) declined to interfere with the order of the Chief Judicial Magistrate. The revision petition before him was accordingly dismissed. The petitioner wants the above orders to be set aside by this court invoking the inherent jurisdiction under S. 482, Cr.P.C.
2. A preliminary objection is raised that the petition itself is not maintainable. It is argued that the petition is couched in such a way as to appear that it is under S. 482 of the Code of Criminal Procedure whereas it is really an application for invoking the revisional jurisdiction of the High Court and as the learned Sessions Judge has already dismissed an application for revision filed by the petitioner, a second revision petition is barred both under S. 397(3) and under S. 399(3) of the Code of Criminal Procedure, 1973. The contention, therefore, is that the present petition should be dismissed in limine.
3. The decisions of the High Courts are conflicting as to whether the inherent powers of the High Court can be invoked in case where a revision petition to High Court is barred either under S. 397(2) or under S. 397(3) and S. 399(3) of the Code of Criminal Procedure. I need not refer to the above decisions in view of two recent decisions of the Supreme Court dealing with the point.
4. In Amar Nath v. State of Haryana (1977 Cri LJ 1891) (SC) the appellant moved the high Court of Punjab and Haryana to quash an order of the Judicial Magistrate, 1st Class, Karnal issuing summons to an accused in a private complaint. The petition was under Ss. 397 and 482 of the Code of Criminal Procedure. The High Court held that issue of summons was an interlocutory order and a revision petition was barred under S. 397(2) of the Code. The High Court refused to invoke the inherent powers stating that by such exercise the very object of S. 397(2) would be defeated. When the case came up before two Judges of the Supreme Court, the Supreme Court observed :
"While we fully agree with the view taken by the learned Judge that where a revision to the High Court against the order of the Subordinate Judge is expressly barred under sub-sec. (2) of S. 397 of the 1973 Code the inherent powers contained in S. 482 would not be available to defeat the bar contained in S. 397(2). Section 482 of the 1973 Code contains the inherent powers of the Court and does not confer any new powers but preserves the powers which the High Court already possessed. A harmonious construction of Ss. 397 and 482 would lead to the irresistible conclusion that where a particular order is expressly barred under S. 397(2) and cannot be the subject of revision by the High Court, then to such a case the provisions of S. 482 would not apply. It is well settled that the inherent powers of the
