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2015 DIGILAW 89 (CHH)

Adheshwari Watti v. Kamlesh Watti

2015-03-11

SANJAY K.AGRAWAL

body2015
ORDER Sanjay K. Agrawal, J. 1. Heard on admission. 2. The petitioners herein filed an application under Section 125 of Cr.P.C. claiming maintenance before the Jurisdictional Family Court on 27-10-2014. That case was fixed before the Family Court on, 22-1-2015 for recording evidence of petitioners herein, but on that day, the petitioners could not appear before the Family Court and the Family Court dismissed the application for want of prosecution. 3. Petitioners herein have directly rushed to this Court under Section 482 of Cr.P.C. stating inter alia that there was sufficient cause for non-appearance of petitioners before the Family Court on the date, of hearing. 4. On being asked, learned Counsel appearing for the petitioners would submit that application for restoration is not maintainable before the Family Court as proviso to Section 126(2) of Cr.P.C. is applicable where the non-applicant in the said case proceeded ex-parte and ex-parte order of maintenance is passed, but proviso to Section 126(2) does not contemplate a situation where maintenance application itself has been dismissed for want of prosecution, and therefore, this petition under Section 482 of Cr.P.C. be entertained and the order of Family Court dismissing their case for want of prosecution be restored to its original number. 5. Shri D.K. Gwalre, Advocate, appearing in the case as Amicus Curiae on the request of Court, would submit that proceedings under Section 125 of Cr.P.C. before the Family Court is not strictly a criminal proceeding under the provisions of Code of Criminal Procedure, and as such, the application for restoration before the Family Court would be maintainable to restore the maintenance application, which was dismissed in default. In support of his contention, reliance has been placed upon the judgments passed by High Courts in cases of Pandharinath Sakharam Thube v. Kum. Surekha Pandharinath Thube and others, 1999 Cri.LJ 2919, Smt. Prema Jain v. Sudhir Kumar Jain, 1980 Cri.LJ 80, Lavinder Pal Singh v. Mohinder Kaur and others, 2013 Cri.LJ 3701 and Shabihul Hasan Jafari v. Zarin Fatima and another, 2000 Cri.LJ 3051. 6. I have heard the Counsel appearing for the parties and considered their rival submissions. 7. Before proceeding further, it would be appropriate to notice the decisions rendered by the High Courts of Delhi, Bombay, Allahabad and Punjab & Haryana in above referred cases (supra), dealing with the same points as raised herein in this petition. 8. 6. I have heard the Counsel appearing for the parties and considered their rival submissions. 7. Before proceeding further, it would be appropriate to notice the decisions rendered by the High Courts of Delhi, Bombay, Allahabad and Punjab & Haryana in above referred cases (supra), dealing with the same points as raised herein in this petition. 8. In a decision reported in Smt. Prema Jain (supra), the High Court of Delhi after considering the various authorities has held that Magistrate hearing an application under Section 125 of Cr.P.C. had power to set aside dismissal of application and can restore the maintenance application, and held as under:-- "25. The order in the present case was administrative in nature rather than a judicial one, and the Magistrate cannot be held to be incapable of reviewing or reversing the same. This view finds strength in the provisions following Section 125 in the same Chapter, which entitle the Court to alter, to review or even to cancel its judicial orders." 9. Further in case of Pandharinath Sakharam Thube (supra), Bombay High Court has held that the proceedings under Section 125 of Cr.P.C. are in the nature of civil proceedings. Though they are wholly governed by the procedure of the Code of Criminal Procedure, they are really of civil nature, and observed as under:-- "7. The proceedings under Section 125 of the Code of Criminal Procedure are in the nature of civil proceedings. Though they are wholly governed by the procedure of the Code of Criminal Procedure, they are really of civil nature, but are dealt with summarily in a Criminal Court for the purpose of speedy disposal on grounds of convenience and social order. In the present case at hand, the claim of maintenance of Surekha was not at all considered by the Lower Court. It was erroneous on the part of the learned Magistrate not to consider her claim. This error was partly undone by the Sessions Court. It is true that many years have passed and to send the matter back to the Lower Court at this stage after so many years for the purpose of allowing the parties to lead evidence will be a bit difficult for both the parties. However, not allowing them to do so also will deprive the parties to put forth before the Magistrate the evidence, which ought to have been produced by them earlier. However, not allowing them to do so also will deprive the parties to put forth before the Magistrate the evidence, which ought to have been produced by them earlier. As already observed, the Magistrate has not at all touched the aspect of maintenance of Surekha who even now is a minor and unmarried girl. Just because there is delay, the injustice, which has bench perpetrated should not be perpetuated. This will amount to total denial of justice. In fact, allowing the parties to lead evidence will be equally fair for both the parties and not that it will be advantageous only to the respondents. The petitioner also will get equal opportunity to put forth his side and, therefore, he should not have any grievance if the matter is remanded back. Hence, the following order: Writ petition is dismissed. Parties to appear in the Lower Court on 28th April, 1999. The learned Magistrate is directed to dispose of the matter in accordance with law as expeditiously as possible and certainly on or before 31st August, 1999." 10. Likewise, in a decision reported in Shabihul Hasan Jafari (supra), Allahabad High Court has held that application for maintenance filed under Section 6 of Muslim Women (Protection of Rights on Divorce) Rules, 1986, dismissed for default can be restored for adjudication on merits even in absence of express provision in the Code, and observed as under:-- "8. In view of discussion made above, I am of the opinion that due to petitioner's absence of maintenance proceeding either under the Act or the Code can be dismissed and subsequently on the prayer being made, the said order of dismissal can be recalled or set aside and the case can be restored to its original position for effective adjudication on merits. Resultantly, the present miscellaneous case fails and is dismissed." 11. Recently, in case of Lavinder Pal Singh (supra), Punjab and Haryana High Court considering the provisions incorporated in Section 126 of Cr.P.C. has held that Magistrate has power to set aside the ex parte order made under Section 125 of Cr.P.C. and has also jurisdiction to restore the maintenance proceeding and observed as under:-- "11. Recently, in case of Lavinder Pal Singh (supra), Punjab and Haryana High Court considering the provisions incorporated in Section 126 of Cr.P.C. has held that Magistrate has power to set aside the ex parte order made under Section 125 of Cr.P.C. and has also jurisdiction to restore the maintenance proceeding and observed as under:-- "11. A conjoint and meaningful reading of these provisions would reveal that the proceedings under Section 125, Cr.P.C. are not the crime related complaints, but are of primary civil nature for the benefit of destitute wives, children and parents, who are unable to maintain themselves. Meaning thereby, this chapter has entirely a different procedure to deal with the situation, which is not at all applicable for disposal of other crime related complaints. In this manner, the procedure under Section 125, Cr.P.C. cannot legally be equated with the procedure of crime related complaints. If the submission of learned Counsel that the Magistrate has no power to restore the maintenance petition, is accepted, then, to my mind, it would frustrate the very intent and purpose of the Legislature in providing expeditious remedy of maintenance allowance to the destitute wives, children and parents of the person concerned, which is not legally permissible. If the Magistrate has the power to order and then to set aside, the ex parte order under Section 125, Cr.P.C. in that eventuality, it cannot possibly be said that he has no jurisdiction to restore the maintenance petition, as (contrary) urged on behalf of the petitioner. This matter is no more res integra and is well-settled." 12. I am in respectful agreement with the views expressed by the High Courts of Delhi, Bombay, Allahabad and Punjab & Haryana in aforesaid cases (supra), and it is held that application for restoration of maintenance application is maintainable as the maintenance proceeding is not strictly a proceedings under the Code of Criminal Procedure and such a provision has been enacted for hapless & helpless section of society. 13. As a fall out and consequence of aforesaid discussion, this petition is disposed of reserving liberty in favour of petitioners to make application for restoration of maintenance application before the Family Court. 13. As a fall out and consequence of aforesaid discussion, this petition is disposed of reserving liberty in favour of petitioners to make application for restoration of maintenance application before the Family Court. If such an application is filed by the petitioners, the Family Court shall do well and take decision on the said application in accordance with law keeping in view the law laid down in aforesaid cases and the observations made herein by this Court. No order as to cost(s). 14. Before parting with the matter, I wish to place on record my appreciation to Shri D.K. Gwalre, Advocate, who appeared as Amicus Curiae and assisted the Court. Petition disposed of with liberty to move for restoration.