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2016 DIGILAW 669 (KAR)

Shivashankar Chandrashekar Jotavar v. Poornima

2016-09-01

P.S.DINESH KUMAR

body2016
ORDER : P.S. Dinesh Kumar, J. This petition raises an important question with regard to service of notice/s issued by the Family Courts in petitions field under Section 125 of Cr.P.C. for maintenance. 2. Petitioner herein has challenged the order dated 23.12.2015 allowing Crl. Misc. No. 456/2015 by the Family Court, Belagavi and awarding maintenance of Rs. 5,000/- per month to the 1st respondent and Rs, 1,000/- per month to the 2nd respondent till he attained majority and Rs. 1,000/- per month to the 3rd respondent till the date of her marriage. 3. The respondents, though served have remained absent. 4. The petition filed by the respondents under Section 125 of Cr.P.C. was registered and notices on the main petition and I.A.No.2 were issued through Court and RPAD as per order dated 29.10.2015. Accordingly a notice was issued through RPAD on 11.11.2015. In the proceedings held on 10.12.2015 the trial Court has noted that the notice sent to the petitioner through RPAD was returned with a postal endorsement that petitioner had 'refused'. Accordingly he was placed ex par se and the matter was posted for evidence. Subsequently evidence was recorded and the impugned order passed. 5. Assailing the validity of the impugned order, Sri M.G. Naganuri, learned Counsel for the petitioner submitted that the impugned order is unsustainable in law on two counts. Firstly, petitioner is not served in the manner prescribed under Section 67 of Cr.P.C. Secondly, evidence is not recorded as prescribed under Section 126 of Cr.P.C. 6. Amplifying his contentions, he submitted that initially trial Court ordered issue of notice both through Court and RPAD. However, the service was held sufficient only on the basis of postal endorsement that petitioner had' refused'. Thus, service to petitioner was not complete as required under Section 67 of Cr.P.C. He next contended that under Section 126(2) of Cr.P.C., evidence should be recorded in the presence of a person against whom an order of maintenance is proposed to be made and in case his personal attendance is dispensed with, then evidence should be recorded in presence of his pleader. In support of his contentions he placed reliance on two judgments of this Court in the cases of The State v. Bhimrao and another, reported in AIR 1963 Mysore 239 and Bhimappa Gangappa v. Indirabai, reported in 1981 Kar.L.J. 353. 7. In support of his contentions he placed reliance on two judgments of this Court in the cases of The State v. Bhimrao and another, reported in AIR 1963 Mysore 239 and Bhimappa Gangappa v. Indirabai, reported in 1981 Kar.L.J. 353. 7. I have given my careful consideration to the submissions of the learned Counsel for the petitioner and perused records. 8. Procedure to be followed before a Family Court is governed by Section 10 in Chapter IV of the Family Courts Act, 1984 and it reads as follows:- “10. Procedure generally.- (1) Subject to the other provisions of this Act and the rules, the provisions of the Code of Civil Procedure, 1908 (5 of 1908) and of any other law for the time being in force shall apply to the suits and proceedings [other than the proceedings under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974)] before a Family Court and for the purposes of the said provisions of the Code, a Family Court shall be deemed to be a Civil Court and shall have all the powers of such Court. (2) Subject to the other provisions of this Act and the rules, the provisions of the Code of Criminal Procedure, 1973 (2 of 1974) or the rules made thereunder, shall apply to the proceedings under Chapter IX of that Code before a Family Court. xxx.xxx.xx....” (emphasis supplied) 9. A careful reading of above provision shows that proceedings other than those instituted under Chapter IX of Code of Criminal Procedure shall be governed by Code of Civil Procedure, 1908. It is to be noted that Section 125 of Cr.P.C. falls within Chapter IX of Cr.P.C. and therefore by natural corollary all proceedings under Section 125 of Cr.P.C. should be conducted in consonance with the provisions contained in the Code of Criminal Procedure. 10. Admittedly proceedings were instituted in the Family Court, Belagavi. Petitioner is a resident of Maradimath (Konnur) in Gokak Taluk. Therefore petitioner's residence is clearly outside the local limits of the Court situated at Belagavi. Hence Section 67 of Cr.P.C., is applicable and the same reads as follows:- “67. 10. Admittedly proceedings were instituted in the Family Court, Belagavi. Petitioner is a resident of Maradimath (Konnur) in Gokak Taluk. Therefore petitioner's residence is clearly outside the local limits of the Court situated at Belagavi. Hence Section 67 of Cr.P.C., is applicable and the same reads as follows:- “67. Service of summons outside local limits.- When a Court desires that a summons issued by it shall be served at any place outside its local jurisdiction, it shall ordinarily send such summons in duplicate to a Magistrate with in whose local jurisdiction the person summoned resides, or is, to be there served.” 11. Thus, in proceedings under Section 125 Cr.P.C., summons to respondent situated outside the jurisdiction of a Court should be served in accordance Section 67 of the Code of Criminal Procedure. The trial Court having issued notice to the petitioner herein through Court ought to have recorded a finding with regard to service of said notice. However, service of notice has been held to be sufficient based on a postal endorsement and the same runs counter to the procedure contained in Section 10 of Family Courts Act read with Section 67 of Cr.P.C. In the premise, placing the petitioner ex parte based on the postal endorsement is unsustainable in law. 12. With regard to the second contention of petitioner namely, recording evidence, it is relevant to notice Section 126(2) of Cr.P.C., which reads follows:- “126. Procedure.- (2) All evidence to such proceedings shall be taken in the presence of the person against whom, an order for payment of maintenance is proposed to be made, or, when his personal attendance is dispensed with in the presence of his pleader, and shall Be recorded in the manner prescribed for summons-cases: Provided that if the Magistrate is satisfied that the person against Who m an order for payment of maintenance is proposed to be made is wilfully avoiding service, or wilfully neglecting to attend the Court, the Magistrate may proceed to hear and determine the case ex parte and any order so made may be set aside for good cause shown on an application made within three months from the date thereof subject to such terms including terms as to payment of costs to the opposite party as the Magistrate may think just and proper.” (emphasis supplied) 13. Proviso to Section 126(2) of Cr.P.C. makes it clear and if the Magistrate is satisfied that if the person against whom an order of maintenance is proposed is wilfully avoiding or neglecting to attend the Court, the Magistrate may hear the matter ex parte. In the instant case (trial Court having noted the postal endorsement to the effect that the petitioner had 'refused' service of notice, chose to place him ex parte. The satisfaction of the learned Magistrate as required under Section 126(2) of Cr.P.C. before placing the petitioner herein ex parte is not forthcoming. Further, there is no reference to any order dispensing the presence of petitioner. Hence, evidence could not have been recorded in the absence of the petitioner. 14. In the case of Bhimappa (supra), this Court, following the earlier decision in the case of State v. Bhimrao (supra), has held that a Magistrate must be satisfied that either the respondent in a proceeding under Section 125 of Cr.P.C., was wilfully avoiding service or neglecting to attend the Court before placing him ex parte. 15. In the instant case, petitioner has been placed ex parte by the learned Magistrate without recording his satisfaction contemplated under Section 126(2) of Cr.P.C. and evidence has been recorded in his absence. 16. Therefore, in light of above discussion, the proceedings before the trial Court stood vitiated on both counts, namely, (i) irregularity in service due to non compliance of Section 67 of Cr.P.C.; and (ii) irregularity in recording evidence due to non compliance of Section 126(2) of Cr.P.C. Consequently the impugned order is unsustainable in law. Hence this petition preeminently merits consideration. 17. In the result, (i) Order dated 23.12.2015, passed by the Family Court, Belagavi is quashed; (ii) the matter is remitted back to the Family Court to proceed further with the proceedings from the stage of issuing notice strictly in accordance with the provisions of the Code of Criminal Procedure in the light of observations made in this order. (iii) Registry is directed to circulate a copy of this Order to the Courts handling matters under Section 125 of Cr.P.C. Petition disposed of. No costs.