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1998 DIGILAW 272 (MAD)

Nallan v. Palaniammal

1998-02-24

S.M.SIDICKK

body1998
Judgment : This is a criminal revision petition filed under Sec.401 read with Sec.397 of Crl.P.C. to set aside the order passed by the learned Judicial Magistrate at Musiri in Crl.M.P.No.2128 of 1997 in M.C.No.19 of 1996, dated 212. 1997. 2. The respondent herein is the wife of the petitioner herein. The respondent/wife filed an application under Sec.125 of Crl.P.C. against the petitioner to grant monthly maintenance at the rate of Rs.500 and the petitioner/husband has also filed a counter statement before the Judicial Magistrate at Musiri in M.C.No. 19 of 1996. After examination of some witnesses on behalf of the respondent/wife, an application was filed under Sec. 125 of Crl.P.C, to amend the maintenance petition by making further pleadings in the main petition by the wife by referring to a deed dated 26. 1996 whereunder both the parties have come to some agreement or arrangement for the division of the properties and that amendment application was taken of file by the learned Judicial Magistrate at Musiri in Crl.M.P.No.2128 of 1997 and the petitioner/husband did not file any counter statement controverting the allegations made in the affidavit of the respondent/wife set out in her amendment petition in Crl.M.P.No.2128 of 1997. 3. After hearing both the parties the learned Judicial Magistrate at Musiri allowed the amendment application in Crl.M.P.No.2128 of 1997 on 212. 1997 thereby permitting the wife to incorporate further pleadings with reference to the deed dated 26. 1996 by way of amendment in the main maintenance claim petition in M.C.No. l9 of 1996. 4. Questioning the order of the learned Judicial Magistrate dated 212. 1997 in Crl.M.P.No.2128 of 1997, the present revision petition is filed by the petitioner/husband on the following grounds: Even in the legal notice issued prior to the filing of the maintenance petition in M.C.No. 19 of 1996, the respondent/wife has not stated anything about the alleged partition deed dated 26. 1996 for which now she has sought for by way of amendment to make additional set of pleadings in the petition. Only after examining four witnesses and marking three documents, on her side the respondent/wife came to her senses that she has not stated about the fact that a panchayat was held on 26. 1996 at which the partition deed was executed between the petitioner/husband and the respondent/wife. The respondent/wife has adopted this course because she was not able to prove her cause for maintenance. 1996 at which the partition deed was executed between the petitioner/husband and the respondent/wife. The respondent/wife has adopted this course because she was not able to prove her cause for maintenance. These facts would clearly show that the alleged panchayat and the partition deed dated 26. 1996 is a concocted one for the purpose of maintenance case and these facts would establish that the deed dated 26. 1996 is a fabricated one. There is no provision for amendment under Sec.125 of Crl.P.C, since Sec.l26(2) of Crl.P.C. enables the court to conduct the trial summarily. 5. Thus two objections are raised on behalf of the revision petitioner/husband to set aside the order passed by the learned Magistrate in the amendment petition in Crl.M.P.No.2128 of 1997. One is that there is no provision for amendment in Sec.125 of Crl.P.C. The second objection is that the partition deed dated 26. 1996 is a concocted and fabricated document because it was not referred to earlier in the notice issued by the respondent/wife prior to the filing of the maintenance petition. So far as the second objection is concerned, it is a question of fact and it can only be decided by the learned Magistrate on an appraisal and appreciation of evidence that has to be let in the maintenance case in M.C.No. 19 of 1996. Such question of fact cannot be gone into by this revision court under Secs.401 and 397 of Crl.P.C. So the second ground urged by the petitioner/husband is not a valid one to set aside the order passed by the learned Magistrate in the amendment petition in Crl.M.P.No.2128 of 1997. 6. So far as the first objection of the revision petitioner is concerned, according to him the trial in the maintenance case is a summary procedure. That is not correct because Sec. 126(2) of Crl.P.C. says that all evidence in the proceedings under Sec.125 of Crl.P.C. shall be recorded in the manner prescribed for summons cases. So it is a summons case and not a summary case. What ever it may be, the objection of the revision petitioner is that there is no provision in Sec.125 of Crl.P.C. to amend the maintenance petition. This objection is also untenable for the following reasons. So it is a summons case and not a summary case. What ever it may be, the objection of the revision petitioner is that there is no provision in Sec.125 of Crl.P.C. to amend the maintenance petition. This objection is also untenable for the following reasons. There is no provision in Sec.125 of Crl.P.C. to grant interim maintenance Even then the Supreme Court in the decision reported in Savithiri v. Govind Singh, 1985 M.L.J. (Crl.) 12: 1986 Crl. L.J. 41: (1985)4 S.C.C. 337 :1985S.C.C. (Crl.) 356.A.I.R. 1986 S.C 984, held that interim maintenance pending final disposal of the maintenance proceedings under Sec.125 of Crl.P.C. can be granted and such an order may also be made in an appropriate case ex parte. 7. Similarlythere is no provision in Sec.125 of Crl.P.C. to set aside the ex parte order of maintenance passed against the husband,but there is a proviso to Sec.126 of Crl.P.C. to set aside ex parte order. The Supreme Court in the decision reported in Mohammed Nairn Sidiqui v. Sulthana Kattoon, 1983 S.C.C. (Crl.) 50, laid down that where in a case under Sec. 125, Crl.P.C. the matter was decided against the husband ex parte but the husband was not served with notice, then the ex parte order can be set aside. 8. A similar situation arose in another case though not an identical one with the present case under Sec. 125 of Crl.P.C. That was a case where I have dealt with the question of the Substitution of authorised representative of a company, who filed a private complaint, and that was the decision reported in Raasi Cement Limited v. Prithiviraj, 1997 Crl L. J. 4631, wherein at page 4633 and in para 5 of my judgment I have stated as follows: “....According to the learned Magistrate, there is no specific provision of law under which the substitution petition can be filed and allowed..........In the interest of justice, such applications like the petition to accept the sureties, the petition for the return of the documents by the sureties and the petition for advancement of the hearing of an application are being entertained by the Magistrates court, it is also reasonable to entertain an application for substitution of a representative in respect of a private company to prosecute its complaint in the absence of specific provision of law. This view is in consonance with the decision of the Supreme Court reported in K.M.Mathew v. State of Kerala, 1992 L.W. (Crl.) 14: 1992 Crl.L.J. 3779, wherein it was held that no specific provision of law is required for a Magistrate to drop the proceedings or to rescind the process in a summons case and it is the judicial discretion of the Magistrate to allow such proceedings....” 9. Thus it follows from the above decisions that even though thee is no specific provision of law but in interest of justice and by exercising the discretionary power, the Magistrate can even allow an amendment petition in the maintenance petition filed under Sec.125 of Crl.P.C. setting out some more pleadings. The question as to whether further pleadings by way of amendment are true or not true, is a matter for consideration and appraisal of evidence by the trial Magistrate and not by the revisional court like this Court while exercising the powers of revision under Secs.401 and 397 of Crl.P.C. Therefore, I find that there is no illegality or impropriety in the order passed by the learned Judicial Magistrate at Musiri in the amendment petition in Cr1.M.P.No.2128 of l997 in M.C.No. 19 of 1996 on 212. 1997, and so the order dated 212. 1997 cannot be set aside. However, the learned Magistrate can permit the petitioner/ husband to file an additional counter statement in view of the amendment that will be carried out in the main maintenance petition. Hence, I hold that this revision petition has to be dismissed, and consequently I answer this point as against the petitioner/husband. 10. In the result this Criminal Revision Petition No.175 of 1998 is dismissed. The order of the learned Judicial Magistrate at Musiri in Crl.M.P.No.2128 of l997 in M.C.No.l9 of l996 dated 212. 1997 is confirmed. However, the learned Judicial Magistrate at Musiri can give an opportunity to the revision petitioner/husband to file an additional counter-statement in view of further pleadings to be made by way of amendment in the main maintenance petition filed under Sec. 125 of Crl.P.C. and dispose of the case in accordance with law. 11. Consequently the stay petition in Crl.M.P.No. 1317 of 1998 is dismissed as unnecessary.