Research › Search › Judgment

Madras High Court · body

2016 DIGILAW 2808 (MAD)

G. Ponram v. Karpagam @ Santhakumari

2016-08-10

P.N.PRAKASH

body2016
ORDER : This Criminal Original Petition is filed to call for the records pertaining to the complaint made in C.C. No.2165 of 2013 on the file of the V Metropolitan Magistrate Court, Egmore at Allikulam, Chennai 600 003 and quash the same. 2. For the sake of convenience, the parties will be referred to by their name. 3. Karpagam got married to Ponram on 02.02.2006 and they have one child Savitha through the wedlock. The couple got estranged, pursuant to which, Ponram filed a petition for divorce in F.C.O.P. No.1506 of 2008 before the Principal Family Court, Chennai, against Karpagam. Karpagam filed C.C. No.2165 of 2013 before the V Metropolitan Magistrate Court, Egmore, Chennai, under Section 125 Cr.P.C. against Ponram, claiming maintenance for herself and her child Savitha. Under such circumstances, Ponraj is before this Court for transferring C.C. No.2165 of 2013 from the file of the V Metropolitan Magistrate Court, Egmore, Chennai, to the file of the Principal Family Court, Chennai. 4. Notice was ordered to Karpagam and she has entered appearance through her advocate Mr. P. Rajkumar Pandian. 5. Mr. Rajkumar Pandian, learned counsel for Karpagam submitted that F.C.O.P. No.1506 of 2008 that was filed by Ponram for divorce before the Principal Family Court, Chennai, was dismissed as early as on 18.12.2012 and that ex parte orders have been passed in C.C. No.2165 of 2013 by the V Metropolitan Magistrate Court, Egmore, Chennai on 11.12.2013 directing Ponram to pay Rs.10,000/- per month as maintenance for Karpagam and her child Savitha. Since Ponram did not make payments, an execution petition has also been filed for the enforcement of the order under Section 128 Cr.P.C. and at that stage, the prayer of Ponram for transfer of C.C. No.2165 of 2013 from the file of the V Metropolitan Magistrate Court, Egmore, Chennai, to the file of the Principal Family Court, Chennai, is untenable. 6. Mr. T. Subramanian, learned counsel for Ponram placed reliance upon Section 8 of the Family Courts Act, 1984, which reads thus: 8. 6. Mr. T. Subramanian, learned counsel for Ponram placed reliance upon Section 8 of the Family Courts Act, 1984, which reads thus: 8. Exclusion of jurisdiction and pending proceedings: Where a Family Court has been established for any area,-- (a) no district Court or any subordinate Civil Court referred to in sub-section (1) of section 7 shall, in relation to such area, have or exercise any jurisdiction in respect of any suit or proceeding of the nature referred to in the Explanation to that sub-section.; (b) no Magistrate shall, in relation to such area, have or exercise any jurisdiction or powers under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974); (c) every suit or proceeding of the nature referred to in the Explanation to sub-section (1) of section 7 and every proceeding under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974)-- (i) which is pending immediately before the establishment of such Family Court before any district Court or subordinate Court referred to in that sub-section or, as the case may be, before any Magistrate under the said Code; and (ii) which would have been required to be instituted or taken before or by such Family Court if, before the date on which such suit or proceeding was instituted or taken, this Act had come into force and such Family Court had been established, shall stand transferred to such Family Court on the date on which it is established. 7. Placing reliance upon the aforesaid provision, the learned counsel for Ponram submitted that the Family Courts Act came into force way back in 1984 and Family Courts were constituted in Tamil Nadu as early as 1990 and therefore, the petition under Section 125 Cr.P.C. was not maintainable before the V Metropolitan Magistrate Court, Egmore, Chennai, in the light of Section 8(b) of the Family Courts Act, extracted above. 8. There is considerable force in the argument of Mr.T.Subramanian, learned counsel for Ponram. It is indeed surprising as to how the petition has been numbered before the V Metropolitan Magistrate Court, Egmore and orders passed unmindful of and giving a go-by to the aforesaid legal position. 9. One option that is now open to Karpagam is that she can file a fresh application under Section 125 Cr.P.C. before the Principal Family Court, Chennai. It is indeed surprising as to how the petition has been numbered before the V Metropolitan Magistrate Court, Egmore and orders passed unmindful of and giving a go-by to the aforesaid legal position. 9. One option that is now open to Karpagam is that she can file a fresh application under Section 125 Cr.P.C. before the Principal Family Court, Chennai. But, she will be entitled to maintenance only from the date of filing such fresh application and not from the date on which she had filed the maintenance application before the V Metropolitan Magistrate Court, Egmore, Chennai. Of course, this will cause undue prejudice to Karpagam and her daughter Savitha. 10. Under such circumstances, interest of justice would be sub served if the order dated 11.12.2013 passed by the V Metropolitan Magistrate Court, Egmore, Chennai, in C.C. No.2165 of 2013 is quashed and a direction is issued to the V Metropolitan Magistrate Court, Egmore, Chennai, to transfer the entire case records in C.C.No.2165 of 2013 to the file of the Principal Family Court, Chennai, so that the date of filing of the petition under Section 125 Cr.P.C. will be reckoned from the date the petition was filed before the V Metropolitan Magistrate Court, Egmore, Chennai. 11. The learned counsel for Ponram submitted that Ponram is willing to pay Rs.5,000/- per month as interim maintenance without prejudice to his defence. 12. Today, Ponram has paid a sum of Rs.10,000/- for the months of July and August 2016 by handing over a demand draft dated 10.08.2016 drawn in favour of Karpagam to Mr. Rajkumar Pandian, learned counsel for Karpagam, who had received the same. 13. In view of the above, the following orders are passed: i. The order dated 11.12.2013 passed by the V Metropolitan Magistrate Court, Egmore, Chennai, in C.C. No.2165 of 2013 is hereby quashed. ii. The V Metropolitan Magistrate Court, Egmore, Chennai, is directed to transfer the entire case records in C.C. No.2165 of 2013 to the file of the Principal Family Court, Chennai, within a period of two weeks from the date of receipt of a copy of this order. iii. On such transfer, the Principal Family Court, Chennai, is directed to re-number the petition. iii. On such transfer, the Principal Family Court, Chennai, is directed to re-number the petition. It is made clear that the date of filing of the petition for maintenance under Section 125 Cr.P.C. will be the date on which the petition was presented by Karpagam before the V Metropolitan Magistrate Court, Egmore, Chennai. iv. Ponram is directed to pay Rs.5,000/- per month to Karpagam as ad interim maintenance without prejudice to his defence in the proceedings. v. Ponram and Karpagam are directed to appear before the Principal Family Judge, Chennai, on 26.09.2016 at 10.30 a.m. vi. On the failure of appearance of Ponram, the Principal Family Judge, Chennai, is entitled to issue warrant for securing his presence, since notice has already been given to him for his appearance. vii. After the case is transferred from the file of the V Metropolitan Magistrate Court, Egmore, Chennai, sufficient opportunity should be given to Ponram to put up his defence and the Principal Family Court, Chennai, is directed to complete the trial expeditiously, at any rate, within 8 months from 26.09.2016. With the above directions, this Criminal Original Petition stands ordered. Connected Crl.M.P. is closed.