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2007 DIGILAW 2780 (MAD)

Samundeeswari v. Nagarajan

2007-08-31

S.TAMILVANAN

body2007
Judgment :- This Criminal Revision is directed against the order, dated 21.07.2005 made in M.C.No.13 of 2004 in C.M.P.No.2768 of 2005 on the file of the Judicial Magistrate No.II, Mannargudi. 2. It has been admitted that the revision petitioner is the daughter of the respondent, who filed the petition under Section 125 Cr.P.C, claiming maintenance from his daughter before the trail court. As the court summons sent by the revision petitioner was returned as refused on 26.07.2004, the trial court held the service of notice as sufficient, the petitioner herein was called absent and set exparte. Then P.W.1 was examined, Exs.P.1 to P.3 were marked. Based on the oral and documentary evidence, the trial court held that the respondent herein is entitled to get maintenance from the revision petitioner at the rate of Rs.1,000/-p.m from the date of the application filed by the respondent herein. Subsequently, the revision petitioner herein filed a petition under Section 126 (2) Cr.P.C to set aside the exparte order passed by the court below. In the petition, the petitioner herein has stated that she did not refuse to receive the notice, as she was working in the primary health center. According to her, summon could have been served through her superior officer, as per Section 66 of Cr.P.C. She has further stated that her gross salary was only Rs.8,077/-p.m and hence, the award of maintenance is exorbitant. 3. The trial court has passed a detailed order that the revision petitioner had wantonly refused to receive the court notice, as well as the notice sent through free legal aid committee and that she filed the petition to set aside the order belatedly 10 months after the order was passed by the trial court. On the above reasons, the trial court has dismissed the petition filed by the revision petitioner under Section 126 (2) of Cr.P.C. Aggrieved by which, this Criminal Revision has been preferred. 4. Mr.S.Ayyadurai, learned counsel appearing for the revision petitioner would contend that the service of court summons was not sufficient, due to non compliance of the procedure under Section 66 of Cr.P.C. and therefore, the exparte order passed on 26.07.2004 by the trial court under Section 125 Cr.P.C is bad in law. The learned counsel further contended that there is no delay in filing the petition, since the same was filed only after knowing the aforesaid order passed by the court below. The learned counsel further contended that there is no delay in filing the petition, since the same was filed only after knowing the aforesaid order passed by the court below. The learned counsel further contended that the petitioner herein is the daughter born through the first wife of the respondent and that he has also children born through his other wife. It is not in dispute that the revision petitioner had refused to receive the court summons sent by the trial court, on the ground of non-compliance of Section 66 of Cr.P.C. Similarly, it is also not in dispute that the notice sent by free legal aid counsel was also returned as refused and the endorsements for the same were marked as Exs.P.2 and P.3. 5. Under Section 66 of Cr.P.C, if the court summons has to be served on a Government servant, pertaining to his official duty, it must be sent in duplicate to the Head Office, in which such person is employed and the summons should be served in the manner provided by Section 62 of the Act. But, here in the instant case, the respondent herein filed the petition under Section 125 Cr.P.C, seeking maintenance from the petitioner, she being his daughter, as he was unable to maintain himself at the age of 70 years. Admittedly, the petition was not filed against the revision petitioner in her official capacity and therefore, as held by the trial court, there is no legal need for the compliance of Section 66 r/w 62 of Cr.P.C. 6. It is not in dispute that the petitioner had knowledge about the case filed by the respondent herein, seeking maintenance and that was the reason for her refusal of the court summons, as well as the notice sent through legal aid. In such circumstances, there is no error in the order of the court below in holding that service of notice on the revision petitioner was sufficient. 7. As held by the trial court, the petition under Section 126 (2) Cr.P.C was not filed within three months to set aside the exparte order and the same was filed nearly 10 months after the said order. Even the petitioner has not stated the date on which she got knowledge about the exparte order, dated 26.07.2004, whereby she was directed to pay maintenance. 8. Even the petitioner has not stated the date on which she got knowledge about the exparte order, dated 26.07.2004, whereby she was directed to pay maintenance. 8. During the course of argument, Mrs.Shanthakumari, learned counsel appearing for the respondent through the High Court Legal Services Authority contended that the respondent had executed a gift settlement deed of his immovable property in favour of his daughter, the petitioner herein and that was sold by her for more than Rs.1,00,000/-and in support of her contention, produced a copy of the document for verification. I am of the view that the same could not be considered in the criminal revision, as the same could have been produced before the trial court. 9. The respondent, aged about 70 years, being the father of the petitioner, who is unable to maintain himself is legally entitled to get maintenance from the petitioner, under Section 125 Cr.P.C, which is not in dispute. Even according to the revision petitioner, her gross salary on the date of the application was more than Rs.8,000/-. Considering the same, the trial court has awarded maintenance at the rate of Rs.1,000/- p.m in favour of the respondent to be paid by the petitioner. 10. On the facts and circumstances, after hearing the arguments advanced by both the learned counsel, to meet the ends of justice, I find it reasonable to pass a conditional order, directing the petitioner to pay 50% of the arrears of the maintenance awarded by the trial court, within a period of eight weeks, as a condition precedent to set aside the exparte order. Out of the said amount, 25% of the total arrears of maintenance amount shall be deposited by the revision petitioner before the trial court within a period of four weeks from the date of receipt of the copy of this order and the remaining 25% of the amount shall be deposited within a period of four weeks, thereafter. If the same is deposited, the respondent herein would be entitled to withdraw the same by way of filing application before the trial court. 11. If the order of this Court is complied with, as stipulated, the revision petition would be allowed with out any further direction and the trial court shall dispose of the case, according to law, within a period of two months thereafter. 12. 11. If the order of this Court is complied with, as stipulated, the revision petition would be allowed with out any further direction and the trial court shall dispose of the case, according to law, within a period of two months thereafter. 12. If the above order is not complied with, as stipulated herein in this order, this Criminal Revision would stand dismissed automatically, without any further reference to this Court and the respondent would be entitled to execute the order for the entire amount, as per the order passed by the trial court and also claim future maintenance, as decided by the trial court. 13. With the above direction, this Criminal Revision is disposed of. Consequently, connected Crl.M.P.No.6061 of 2005 is closed.