The point to be decided in this case is whether this Court should withhold relief to the petitioner by refusing to quash an illegal order in the ground that it has been passed in good faith to serve a good purpose. The Commissioner of Police acted as a knight errant to help a lady in distress. The petitioner cries, it is without jurisdiction. But the respondents reply, though illegal, it serves a noble purpose, so, this Court may keep its hands off. The brief facts of the case are the following:

2. The petitioner is a Driver Head Constable attached to the Armed Reserve Police Camp, Kochi City. He challenges Ext.P1 order issued by the Commissioner of Police, Kochi City directing the Deputy Commandant of Police, Armed Reserve, Kochi City to recover fifty per cent of the net salary of the petitioner and pay it to his wife, the second respondent herein with effect from 15.4.2002. The petitioner submits that Ext.P1 is issued without jurisdiction or authority. It is pointed out that the first respondent does not have jurisdiction to decide matrimonial disputes, such as, failure to maintain the spouse and children. It is also submitted that the said order has been passed without hearing the petitioner.

3. A Statement was filed on behalf of the first respondent. It is submitted therein that the wife of the petitioner submitted a representation to the first respondent stating that the petitioner is not looking after his family consisting of the second respondent wife and their four children. Three of the children are daughters aged 21 years, 18 years and 15 years respectively. The first respondent caused an enquiry into the representation filed by the second respondent and the Officer who conducted the enquiry, reported that the grievance put forward by the second respondent is genuine. Therefore, in good faith and with good intention, the order has been passed.

4. The second respondent has filed a counter affidavit supporting the impugned order. The second respondent submits that the petitioner is neglecting her and the children. He is not giving any money for their maintenance. He is drawing a salary of Rs.9,000/- per month. Even then, nothing is paid to them. Therefore, the second respondent was constrained to file a representation before the first respondent and the impugned order was passed on the said complaint. I heard both sides. I find that there is considerable force in the submission of the learned counsel for the petitioner that Ext.P1 has been issued without jurisdiction and that the first respondent cannot usurp the function of the Family Court and award maintenance. But the respondents would point out that the jurisdiction under Article 226 of the Constitution of India need not be exercised in every case of illegality. The Court has got a discretion to withhold relief, even if the impugned order is illegal. Therefore they prayed that this Court may decline jurisdiction in this case.

5. Ours is a Republic governed by Rule of Law. It means “every act of governmental power, i.e. every act which affects the legal rights, duties or liberties of any person, must be shown to have a strictly legal pedigree. The affected person may always resort to the Courts of Law, and it the legal pedigree is not found to be perfectly in order, the Court will invalidate the act, which he can then safely disregard.” (H.W.R. Wade in Administrative Law). In the case at hand, no Statute or Rules framed under any of the Statutes enable the Commissioner of Police to pass an order in the nature of Ext.P1. Therefore, it is issued without jurisdiction.

6. The next point to be decided is whether this Court can decline relief in this case invoking its discretion. It is true, this Court has discretion to decline jurisdiction even if the impugned order is illegal. But, an order in the nature of Ext.P1, patently lacking jurisdiction, should not be permitted to remain in force by declining the relief under Article 226 of the Constitution of India. The learned Author H.W.R. Wade in Administrative Law says:

"There are grave objections to giving the courts discretion to decide whether governmental action is lawful or unlawful, the citizen is entitled to resist unlawful action as a matter of right, and to live under the rule of law, not the rule of discretion. If the Courts were to undermine the principle of ultra vires by making it discretionary, no victim of an excess or abuse of power could be sure that the law would protect him."

Lord Shaw in Scott v. Scott ((1913) AC 417) said:

"To remit the maintenance of constitutional right to the region of judicial discretion is to shift the foundations of freedom from the rock to the sand."

7. This Court is a Court of record and a superior Court of unlimited jurisdiction. If this Court upholds Ext.P1, the same can be quoted as an authority in support of petitions claiming maintenance by neglected wives or children before the controlling officers of Government servants and they will be bound by it. Thus, this Court will be conferring a new jurisdiction on the controlling officers of Government servants where none exists. This Court which is constitutionally bound to uphold the Rule of law, cannot set such precedents which will engender such illegal action. Therefore, the Original Petition is allowed quashing Ext.P1.

8. In paragraph 4 of the Original Petition, the petitioner has stated:

"In fact, marriage between petitioner and 2nd respondent was solemnized in the year 1977. There are four children out of the wedlock and the 2nd respondent along with the four children are in fact staying in the petitioners house. Petitioner is duly maintaining them and there is absolutely no reason or justification for any maintenance claim as against the petitioner."

9. The submission of the petitioner that he is maintaining his wife and children is recorded. This Court expects that the petitioner will not give any room for any complaint that he is not maintaining his wife and children.