Madras High Court
M.A.Malaikannan vs S.M.Tamilselvi on 18 February, 2021
Crl.OP.No.229 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 18.02.2021
CORAM:
THE HONOURABLE MR.JUSTICE N.ANAND VENKATESH
Crl.OP.No.229 of 2019
and Crl.M.P.No.122 of 2019
M.A.Malaikannan ... Petitioner
Vs.
S.M.Tamilselvi ... Respondent
PRAYER:
Criminal Original Petition filed under Section 482 of the Code
of Criminal Procedure, to call for records in M.C.No.501 of 2017 on the
file of the learned Judge, 1st Additional Family Court, Chennai and quash
the same.
For Petitioner : Mr.V.Neethidurai
For Respondent : Mr.T.Thangmani
ORDER
This petition has been filed to quash the proceedings pending in
M.C.No.501 of 2017, on the file of the 1st Additional Family Court,
Chennai.
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Crl.OP.No.229 of 2019
2.The respondent filed a maintenance case against the petitioner
claiming for a monthly maintenance of Rs.25,000/-. According to the
respondent, she was married to the petitioner in the year 1984 and out of
the said wedlock, two children were also born. The further case of the
respondent is that the petitioner is not maintaining her and hence the
maintenance case was filed before the Court below.
3.The petitioner-husband has filed the present quash petition
mainly on the ground that the respondent was living in adultery and a
divorce petition was filed before the Sub-Court, Sivagangai in
HMOP.No.26 of 1994 on the ground of adultery and this petition was
allowed by a judgment dated 04.09.1995 after finding that the respondent
is living in adultery and the marriage was also dissolved. Subsequent to
the same, the respondent has filed a maintenance case, which is not
maintainable in view of the specific bar under Section 125 of the Code of
Criminal Procedure.
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Crl.OP.No.229 of 2019
4.Heard Mr.V.Neethidurai, learned counsel appearing on behalf of
the petitioner and Mr.T.Thangamani, learned counsel appearing on
behalf of the respondent.
5.The learned counsel for the respondent submitted that the
petitioner has obtained a judgment in HMOP.No.26 of 1994 by playing
fraud and fraud vitiates the entire proceedings and the same is not
binding on the respondent. The learned counsel in order to substantiate
his submissions relied upon the judgment of the Hon'ble Supreme Court
in the case of S.P.Chengalvaraya Naidu Vs. Jagannath reported in
(1994) 1 SCC. The learned counsel therefore submitted that the
maintenance case filed by the respondent is maintainable and this Court
must direct the Court below to complete the proceedings within a time
frame.
6.Per contra, the learned counsel for the petitioner submitted that
the divorce petition in HMOP.No.26 of 1994 was a contested case and
the judgment was passed on merits after considering the evidence that
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Crl.OP.No.229 of 2019
was available before the Court. The learned counsel submitted that the
respondent cannot disregard this judgment by making a vague allegation
that a fraud was played against her. Till this judgment is in force, the
respondent is barred from claiming any maintenance from the petitioner
since she was living in adultery.
7.In the considered view of this Court, the marriage was dissolved
by a competent Court in HMOP.No.26 of 1994 on the ground of adultery.
If really the respondent is aggrieved by this judgment, she has to
challenge the same in the manner known to law. This judgment was
passed after hearing both the sides and a judgment cannot be disregarded
on a mere submission that fraud was played by the petitioner. Even fraud
will have to be pleaded and proved in the manner known to law and a
mere statement of the respondent cannot invalidate a judgment passed by
a competent Court. There is a specific bar under Section 125 Cr.P.C to
maintain a petition claiming for maintenance where the wife is living in
adultery. In the present case, the divorce itself was ordered on the
ground that the respondent is living in adultery. In the light of these
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Crl.OP.No.229 of 2019
findings, the respondent cannot maintain the maintenance case before the
Court below and it requires the interference of this Court.
8.It is made clear that the respondent, if so advised, can question
the judgment passed in the divorce case, if so permitted by law.
9.In the result, the proceedings in M.C.No.501 of 2017, on the file
of the 1st Additional Family Court, Chennai is hereby quashed and the
Criminal Original Petition is allowed. Consequently, connected
miscellaneous petition is closed.
18.02.2021
Index:Yes/No
Internet:Yes/No
Speaking/non-speaking order
rm
To
The Judge,
I Additional Family Court,
Chennai.
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Crl.OP.No.229 of 2019
N.ANAND VENKATESH, J.,
rm
Crl.OP.No.229 of 2019
18.02.2021
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