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2011 DIGILAW 498 (AP)

Annavarapu Dhanaraj v. Annavarapu Manikyam

2011-07-05

L.NARASIMHA REDDY

body2011
ORDER This Tr.C.M.P. raises an important question of law, namely, whether an application under Section 24 of the Code of Civil Procedure 1908 (C.P.C.) can be filed in the High Court, for transfer of a maintenance case filed in the Family Court under Section 125 of the Code of Criminal Procedure, 1973 (Cr.P.C.) 2. The brief facts of the case are that, The marriage between the petitioner and the 1st respondent took place on 30-4-2006 at Visakhapatnam, and respondents 2 and 3 are their children. Differences have arisen between the petitioner, on the one hand, and the 1st respondent, on the other, and they started living separately. The respondents filed M.C.No. 318 of 2010 in the Family Court, Hyderabad, under Section 125 CLP.C., against the petitioner. This Tr.C.M.P., under Section 24 of C.P.C., is filed with a prayer to transfer the M.C. to the Family Court, Visakhapatnam. The petitioner made certain serious allegations against the 1st respondent and it is not necessary .to mention the same here. The gist of his contention is that the brothers of the pt respondent are associated with influenced persons, and on certain occasions, they have threatened the petitioner with dire consequences, when he attended the Family Court at Hyderabad. 3. The Registry of this Court as well as the respondents raised an objection, as to the maintainability of the Tr.C.M.P. According to them, the M.C. was filed under Section 125 Cr.P.C., and the only remedy available to the petitioner is to file an application under Section 407 of Cr.P.C. The petition is opposed on merits also. 4. Ms. G. Rama Laxmi, learned counsel for the petitioner, submits that a maintenance case instituted under Section 125 Cr.P.C. is of civil nature~ that it does not partake the characteristic of a criminal case, and thereby, it is' amenable to the jurisdiction of this Court under Section 24 C.P.C. She contends that hardly there are any elements of criminal act, in the context of failure of an individual to pay maintenance to his wife or parents and that no substantive punishment is provided for, under any provisions of law, in the event of failure of an individual, to maintain the persons who depend upon him. She further contends that a law, which is purely procedural in nature, cannot define an offence, and that Chapter IX of Cr.P.C. mainly provides for the rights of the dependants to seek maintenance, subject to certain limitations. Learned counsel further submits that wheatever be the nature of proceedings under Section 125 Cr.P.C., if instituted before a regular criminal Court, they acquire a totally different character, when they are filed in a Family Court. 5. Sri Ravi Prakash Misra, learned counsel for the respondents, on the other hand, submits that once the proceedings are instituted under the provisions of Cr.P.C., any further remedies must be availed strictly in accordance with the provisions of that very enactment. He contends that Section 24 C.P.C is applicable, only when the proceedings in a civil Court are sought to be transferred to another civil Court. 6. Cr.P.C., as evident from its name, is an enactment prescribing the procedure to be followed in criminal cases. It does not by itself, define any crimes. It is not uncommon that even purely procedural enactments provide for certain rights, which sometimes can be substantive as opposed to procedural in nature, the right of an individual to seek maintenance, under Section 125 Cr.P.C. falls into this category. 7. The distinction between the civil and criminal Court proceedings is so fundamental and too well-known that the Parliament has not thought it necessary to define those two terms in Cr.P.C. and C.P.C., respectively. In fact, it will be difficult to coin a precise definition for those words. This much, however, can be said that an act, or omission, on the part of a citizen becomes criminal, if any law in force, not only prohibits it, but also provides for punishment in the form of fine or imprisonment or both. Any dispute, which is not criminal in nature, can safely be termed as civil. It is a different matter that within the category of civil disputes, classifications and sub-classifications are made and specialized adjudicated systems are involved from time to time. Another point of distinction is that the commission of a crime is treated as against the State, though its impact may be felt by one or many citizens, whereas civil disputes are between citizens inter se. Another point of distinction is that the commission of a crime is treated as against the State, though its impact may be felt by one or many citizens, whereas civil disputes are between citizens inter se. Even where the State figures as a party in a civil dispute, it would be to protect its rights as entity, but not as the representative of a wronged person. Certain other points of distinction can also be enlisted. In Law Lexicon by Ramanatha Aiyar, the meaning of the word 'Crime' and 'Criminal act' are given as under: "Crime. A crime is an act or omission which is prohibited by law as injurious to the public and punished by the State. "Disobedience to a common or prohibition made with reference to a matter affecting public peace, order, or good Government to which a sanction is attached, by way of punishment or pecuniary penalty, in the interest of the State by way of punishment or as a whole, and not by way of compensation for the injury which the act or omission may have caused to an individual. Criminal Act: Opposed to civil action; action prosecuted by or in the name of the state against a person charged with a public offence' for the punishment thereof." 8. In P.S.R. Sadanandham v. Arunachalam (1) AIR 1980 SC 856 , the Supreme Court observed, "A crime is an act, deemed by law, to be harmful to society in general, even though its immediate victim is an individual." 9. The phrase "civil action" is explained in the same Law Lexicon as: "Civil action. A personal action which is instituted to compel payment, or the doing of some other thing which is purely civil. It is an action which deals with acts which constitute an infringement or privation of the private or civil rights belonging to individuals. Civil actions: "All legal proceedings partaking of the nature of a suit and designed to determine the rights of private parties." The phrase "civil actions" is used as opposed to criminal actions." 10. Notwithstanding the perceptible difference between civil and criminal proceedings, there are certain disputes, which partake both the characters. What becomes relevant is the predominant purpose underlying the adjudication. Notwithstanding the perceptible difference between civil and criminal proceedings, there are certain disputes, which partake both the characters. What becomes relevant is the predominant purpose underlying the adjudication. Take for instance, the power of a civil Court to sentence the judgment debtor, in a decree for imprisonment, if it is established that he failed to honour the decree, in spite of possessing adequate means. Though the imprisonment under Rule 37 of Order XXI C.P.C., if ordered, may acquire the characteristics of the adjudication of criminal law, the proceedings continue to be civil, since the purpose underlying the adjudication, viz., the determination of the liability to pay the amount, was purely civil. It is only a small facet of the proceedings that gains the characteristic of criminal proceedings. Similarly, the criminal Court can award compensation under Section 357 Cr.P.C., which in the ordinary course is the function of a civil Court. However, if one takes into account the fact, that the compensation is awarded out of the amount of fine, imposed as sentence, after trial for an offence, it would not be difficult to understand that the proceedings are criminal in nature, notwithstanding the fact that the compensation is awarded to a victim. Examples of this nature can be multiplied. 11. Chapter IX of Cr.P.C., comprising of Sections 125 to 128, is a class by itself, and is substantially different from rest of the provisions of that Code. It is aimed at providing avenue for the woman spouse, children and parents of a person, to claim maintenance. It is a matter of common knowledge that provisions for awarding maintenance to such dependants are contained in various legislations governing the marriage and other related matters. Further, almost every category of criminal cases would land before the police and its involvement would be there in one form or the other. While in vast majority of cases it is the police that files the complaint and initiates the prosecution, in other cases, such as private complaints under Chapter XV of Cr.P.C., the participation of the police takes place on a direction issued by the Court. However, there does not exist any participation of police at all, in the proceedings under Chapter IX of Cr.P.C. 12. However, there does not exist any participation of police at all, in the proceedings under Chapter IX of Cr.P.C. 12. Another aspect is that in all other criminal cases, the 151 party would be the State and the other party is the accused, except in cases under Chapter X (comprising of Sections 145 to 148) of Cr.P.C. The parties in the proceedings under Chapter IX are private individuals-on both sides with absolutely no element of prosecution, involved. Final outcome of the proceedings would be in the form 'of an order determining the amount to be paid as maintenance by the respondent in the case. It is only when the respondent fails to pay the maintenance ordered by the Court that an occasion would arise to order his imprisonment. By and large, the sentence of that nature would be akin to the one to be passed in an application filed under Rule 37 of Order XXI C.P.C. 13. Once it is found that the basic outcome of the proceedings under Chapter IX CLP.C., is not the one of 'conviction, for an offence, much less followed by a sentence of fine or imprisonment, the proceedings can safely be taken away from the group of criminal cases. The result would be that they partake the character of civil proceedings. 14. In Iqbal Bano v. State of Uttar Pradesh (2) 2008 (1) ALT (Crl.) 238 (SC) = 2008 (1) SCJ 853 = (2007) 6 SCC 785 , the Supreme Court categorically observed that the proceedings under Section 125 CLP.C. are civil in nature. Reference was made to the earlier judgment of the Supreme Court in Vijay Kumar Prasad v. State of Bihar (3) 2004 (2) ALT (Crl.) 38 (SC) = (2004) 5 SCC 196. 15. Whatever may be the temptation for one to brand the proceedings instituted before a criminal Court, as criminal, irrespective of the provisions invoked or the nature of outcome, cases presented before a Family Court acquire a different characteristic. The Family Court is conferred with the jurisdiction to adjudicate the matters pertaining to marriage and other related issues. Claim for maintenance, being one of the facets of family law, was brought under the purview of the Family Court Act, 1984 (for short 'the Act'). The Family Court is conferred with the jurisdiction to adjudicate the matters pertaining to marriage and other related issues. Claim for maintenance, being one of the facets of family law, was brought under the purview of the Family Court Act, 1984 (for short 'the Act'). A perusal of Section 7 of the Act, which defines the jurisdiction of Chapter IX are private individuals-on both sides with absolutely no element of prosecution, involved. Final outcome of the proceedings would be in the form 'of an order determining the amount to be paid as maintenance by the respondent in the case. It is only when the respondent fails to pay the maintenance ordered by the Court that an occasion would arise to order his imprisonment. By and large, the sentence of that nature would be akin to the one to be passed in an application filed under Rule 37 of Order XXI C.P.C. 13. Once it is found that the basic outcome of the proceedings under Chapter IX Cr.P.C., is not the one of conviction, for an offence, much less followed by a sentence of fine or imprisonment, the proceedings can safely be taken away from the group of criminal cases. The result would be that they partake the character of civil proceedings. 14. In Iqbal Bano v. State of Uttar Pradesh (2) 2008 (1) ALT (Crl.) 238 (SC) = 2008 (1) SCJ 853 = (2007) 6 SCC 785 , the Supreme Court categorically observed that the proceedings under Section 125 Cr.P.C. are civil in nature. Reference was made to the earlier judgment of the Supreme Court in Vijay Kumar Prasad v. State of Bihar (3) 2004 (2) ALT (Crl.) 38 (SC) = (2004) 5 SCC 196. 15. Whatever may be the temptation for one to brand the proceedings instituted before a criminal Court, as criminal, irrespective of the provisions invoked or the nature of outcome, cases presented before a Family Court acquire a different characteristic. The Family Court is conferred with the jurisdiction to adjudicate the matters pertaining to marriage and other related issues. Claim for maintenance, being one of the facets of family law, was brought under the purview of the Family Court Act, 1984 (for short 'the Act'). A perusal of Section 7 of the Act, which defines the jurisdiction of the Family Courts, discloses that no powers of a criminal Court were conferred upon such Courts. 16. Claim for maintenance, being one of the facets of family law, was brought under the purview of the Family Court Act, 1984 (for short 'the Act'). A perusal of Section 7 of the Act, which defines the jurisdiction of the Family Courts, discloses that no powers of a criminal Court were conferred upon such Courts. 16. It is not uncommon that the State Legislature or Parliament creates certain Courts or For a, conferring the jurisdiction to adjudicate the matters, which attract the provisions of civil as well as criminal enactments. In such cases, apart from determining the rights of the parties under civil law, the Court or forum can also impose punishment, provided for under the relevant law. The A.P. Land Grabbing (Prohibition) Act, confers the power upon a special Court constituted under it, not only to pass a decree for recovery of possession of a land found to have been grabbed, but also impose sentence of imprisonment and fine, on the person found to be a land grabber. To enable the special Courts to exercise such power, the relevant provisions of C.P.C. and Cr.P.C. are made applicable. However, such is not the case in respect of the Family Courts. They are civil Courts, pure and simple, hardly with any traces of the criminal jurisdiction. Therefore, an application under Section 24 C.P.C. can be filed seeking transfer of proceedings instituted in one Family Court to another Family Court or a Court of equivalent jurisdiction. 17. Learned counsel for the petitioner submits that the application of Section 24 C.P.C., is not restricted to any particular category of Courts and that it is competent for the High Court to transfer the proceedings pending in any Court subordinate to it to another Court. It may be true that Section 24 C.P.C., by itself does not refer to any particular category of proceedings. However, the preamble to C.P.C., reads: "An Act to consolidate or and amend the law relating to the procedure of the Court of civil nature." 18. The purport of Section 4 thereof is to the effect that nothing in the C.P.C. shall be deemed to limit or otherwise affect any special or local law. However, the preamble to C.P.C., reads: "An Act to consolidate or and amend the law relating to the procedure of the Court of civil nature." 18. The purport of Section 4 thereof is to the effect that nothing in the C.P.C. shall be deemed to limit or otherwise affect any special or local law. If one goes by these indications, it would be too 4ifficult to accept the contention that Section 24 C.P.C can be invoked, for seeking transfer of cases, which are purely criminal in nature, though the Courts where such cases are pending, may be subordinate to the High Court. 19. Hence, this Court is of the view that the application under Rule 24 C.P.C. can be filed to seek transfer of a case filed under Section 125 Cr.P.C., more so, when it is instituted in the Family Court. 20. Coming to the merits of the matter, the relationship between the petitioner and the 1st respondent appears to be strained to the level of incompatibility. Though it is not uncommon that spouses live separately, on account of trivial differences also, the nature of allegation made by the petitioner is such that the threat perception expressed by him cannot be dismissed as without basis. Normally, this Court would lean in favour of the convenience of woman spouses and minor children in the context of identifying the forum for adjudication. The facts of the present case warrant a balanced act between the two extremes. It is felt that the transfer of the M.C. to the Family Court, Vijayawada, would meet the ends of justice. 21. Hence, the Tr.C.M.P., is allowed and M.C.No.318 of 2010 pending in the Family Court, Hyderabad, is transferred to the Family Court, Vijayawada. The learned Family Judge, Vijayawada, shall endeavour to dispose of the M.C. as early as possible. 22. There shall be no order as to costs.