Sathyamoorthi vs Arputhamary
2023 Latest Caselaw 15612 Mad

Citation : 2023 Latest Caselaw 15612 Mad
Judgement Date : 4 December, 2023

Madras High Court

Sathyamoorthi vs Arputhamary on 4 December, 2023

Author: G.Ilangovan

Bench: G.Ilangovan

                                           Crl.M.P.(MD)No.12577 of 2023

      BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT


                         Dated: 04/12/2023
                                CORAM
              The Hon'ble    Mr.Justice G.ILANGOVAN


                   Crl.MP(MD)No.12577 of 2023
                               and
                    Crl.RC(MD)No.518 of 2021


Sathyamoorthi                           : Petitioner/Respondent


                                Vs.

Arputhamary                             : Respondent/Petitioner


      PRAYER:-Criminal      Miscellaneous    Petition      has   been
filed under section 482 of the Criminal Procedure Code,
to recall the order, dated 22/11/2022 in Crl.RC(MD)No.518
of 2021 and pass such further or other orders.



          For Petitioner        : Mr.N.Jayavel
                                  for Mr.S.Jayakumar

          For Respondent        : Mr.G.Karuppasamy Pandian


                            O R D E R

This Criminal Miscellaneous Petition has been filed

seeking recall of the order, dated 22/12/2022 in

Crl.RC(MD)No.518 of 2021.

Crl.M.P.(MD)No.12577 of 2023

2.The facts need not be elaborated in view of the

elaboration made in the original order during discussion.

3.This recall application has been filed mainly on

the factual grounds, apart from some legal issues.

4.It is an admitted on both sides that they belong

to different religion. One Hindu, another Christian.

5.As per the case of the respondent, she was married

to the petitioner in a temple by tieing thali. By

pointing out this, it is argued by the learned counsel

appearing for the petitioner that the marriage itself is

not valid; since both belong to different religion; they

can perform the marriage only as per the provisions of

the Special Marriage Act, 1954. Marring an non-Hindu by

knotting Thali is not a valid marriage. But this is a

belated attempt on the part of the petitioner before this

court that too at the time of recall petition. That

ground, which ought to have been raised by the

petitioner, either before the trial court or at the time

of revision by properly engaging an Advocate. In both

events, he failed.

6.Now this recall petition has been filed on the

ground of nullity of marriage.

Crl.M.P.(MD)No.12577 of 2023

7.A detailed discussion was made by this court in

the revisional order over the legality, cohabitation and

birth of the child, etc. So at this length of time, it

may not be appropriate on the part of this petitioner to

raise this plea. So this ground cannot be taken into

account for recalling the order.

8.Now even more of less well settled to the effect

that nullity of marriage even if it is declared by a

competent civil court is not a bar for the wife to claim

maintenance, here it is not a case of declaration. But it

is a case of maintenance filed under section 125 of

Cr.P.C. So the judgments cited by the petitioner reported

in Gullipilli Sowria Raj Vs. Bandaru Pavani @ Gullipili

Pavani (2009-1-SCC 714) may not have any effect upon the

ultimate finding reached by this court.

9.Finally, he has submitted that there is no eye

witness to the marriage. As mentioned above, this cannot

be a ground for recalling the order. On the ground of

long co-habitation, maintenance was ordered by this

court.

10.But the learned counsel appearing for the

petitioner would further submit that the revisional Court

cannot re-appreciate the evidence. For that, he would

Crl.M.P.(MD)No.12577 of 2023

rely upon the decision of this court in the case of

Pathumma and another Vs. Muhammad (1982-2-SCC 585). The

revisional court can exercise the power not on the ground

of re-appreciation of evidence, but decided the

maintenance petition on the ground of long co-habitation.

The delay itself cannot be a reason for disqualifying the

wife to claim maintenance. Circumstances may change as

the age advance. At the advance stage of the age, the

respondent filed a petition seeking maintenance. That was

considered by this court and maintenance was ordered. If

the petitioner got any grievance over that order, he

ought to have taken the matter by way of proper

proceedings. Without following the proper procedure,

filing petition to recall the order itself is not at all

maintainable.

11.Recall order will lie in certain circumstances.

It is more or less now well settled by the Hon'ble

Supreme Court in the case of Daxaben Vs. The State of

Gujarat and others (2022 LiveLaw (SC) 642).

12.Let me extract the relevant portion.

“21.In Krishna Kumar Pandey (supra) this Court referred with approval, to the judgment of this Court in State of Punjab v. Davinder Pal Singh Bhullar and Ors.

Crl.M.P.(MD)No.12577 of 2023

[(2011)14 SCC 770] where this Court held that the High Court was not denuded of inherent power to recall a judgment and/or order which was without jurisdiction, or in violation of principles of natural justice, or passed without giving an opportunity of hearing to a party affected by the order or where an order was obtained by abusing the process of Court which would really amount to its being without jurisdiction. Inherent powers can be exercised to recall such orders.”

13.But none of the above grounds are available at

this stage. So I am of the considered view that this

petition is not maintainable and accordingly, it is

liable to be dismissed.

14.In the result, this criminal miscellaneous

petition is dismissed.

04/12/2023 Index:Yes/No Internet:Yes/No

To,

The Family Court, Sivagangai.

Crl.M.P.(MD)No.12577 of 2023

G.ILANGOVAN, J

and