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2019 DIGILAW 419 (JK)

Kamal Kishore v. Rajni Bala

2019-09-20

TASHI RABSTAN

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JUDGMENT : Tashi Rabstan, J. Petitioner has invoked the inherent powers of this court under section 561-A of Criminal Procedure Code (hereinafter to be referred as Cr.P.C) for quashing the order dated 10.09.2016, passed by Learned Principal Sessions Judge, Kathua, whereby his criminal revision No. 11/Revision has been dismissed by upholding the ex-parte order dated 18.03.2016, passed by Judicial Magistrate 1st Class, Hiranagar in File No. 07/Cr. Main titled ‘Rajni Bala vs. Kamal Kishore’ whereby it has granted maintenance @ Rs. 5000/- per month in favour of the respondent-wife. 2. The brief facts giving rise to this petition are that marriage between the petitioner and respondent was solemnized on 15.04.2012 at Bathal Chack, Teshsil Hiranagar and after marriage both started living in the house of petitioner at villagae Sarna, Tehsil Pathankot, Punjab. It is alleged that petitioner and his family member started taunting and beating her for bringing less dowry and also for not conceiving child. On 26.01.2015, when the respondent had come to attend marriage at her parental house in Hiranager, the petitioner physically harassed her by beating her and since then she is living at her parental house. On 07.12.2015, the respondent filed the petition for maintenance under section 488 of Cr.P.C. After institution of petition, the Judicial Magistrate 1st Class, Hiranagar issued summons for appearance of petitioner herein and on its satisfaction that petitioner herein is willfully avoiding service, proceeded exparte against him and passed the impugned order granting maintenance @ Rs. 5000/- per month in favour of the respondent-wife. Against this order of maintenance, the petitioner herein filed the revision before Principal Sessions Judge, Kathua, which came to be dismissed upholding the order of Magistrate granting maintenance. Hence the present petition. 3. Heard and considered. 4. It has been contended by the learned counsel appearing for petitioner that the order of the Judicial Magistrate is against the mandate of law as the Magistrate has not recorded his satisfaction as to the willful avoiding of service of summons while proceedings ex-parte. It is also contended that petitioner was never duly served and has been condemned unheard. It is contended that summons were not issued in duplicate so report of process server regarding refusal of service of summons and the pasting of summon on house of petitioner is false. 5. It is also contended that petitioner was never duly served and has been condemned unheard. It is contended that summons were not issued in duplicate so report of process server regarding refusal of service of summons and the pasting of summon on house of petitioner is false. 5. Summon is required to be served in the manner prescribed in the applicable Sections of Cr.P.C. Section 488 of Cr.P.C doesn’t prescribe any mode of service of summons and what it lays is that if the Magistrate is satisfied that respondent is willfully avoiding service, or willfully neglects to attend the Court, the Magistrate may proceed to hear and determine the case ex-parte. In order to effect service of summons under section 488 of Cr.P.C, recourse to general principles laid down in Chapter VI of Cr.P.C can be made and the Magistrate is free to adopt the general principles laid down in Sections 68 to 74-A of Cr.P.C or any other mode which it deems proper. 6. The whole ground of challenge in this petition is that orders impugned are vitiated and bad in law for the reason that the service of summons is not duly effected upon the petitioner herein and he was unaware of maintenance proceedings going on before the Magistrate. Perusal of file would show that the Magistrate after the institution of petition for maintenance under section 488, issued a summon on 07.12.2015, for the service of the petitioner herein to be served through S.S.P. Pathankot and the process server of police reported that Sarna is a big town so the service couldn’t be effected and sought exact address. Thereafter, another summon dated 20.01.2016, was issued and submitted to Sessions Judge, Pathankot for service upon the petitioner herein and process server of court this time reported that the petitioner herein refused to accept the summon so the process server pasted the copy of summon on the house of the petitioner herein without citing any witness as no one was ready to put the witness there on spot. 7. As discussed above, there is no procedure laid down in section 488 of Cr.P.C with regard to amount of satisfaction to be recorded by the Magistrate while proceeding ex-parte. Chapter XXXVI of Cr.P.C is a self contained code and prescribes summary procedure to be adopted by the Magistrate while dealing with grant of maintenance cases. 7. As discussed above, there is no procedure laid down in section 488 of Cr.P.C with regard to amount of satisfaction to be recorded by the Magistrate while proceeding ex-parte. Chapter XXXVI of Cr.P.C is a self contained code and prescribes summary procedure to be adopted by the Magistrate while dealing with grant of maintenance cases. The main object of inserting this provision in Cr.P.C is to provide speedy remedy to the dependent from destitution and to serve the social purpose. When the purpose is social, Magistrate is not required to strictly follow the general procedure laid down in Chapter VI of Cr.P.C dealing with processes to compel appearance. In this view, the contention of the learned counsel for petitioner that Magistrate has not recorded satisfaction regarding duly service of petitioner herein has no force. The process server of court in Pathankot was an independent and impartial person and it would be wrong to assume that he has made a false report. The contention that two reports are contradictory is also a shallow as both the process server’s are different persons of different agencies and the process server of police agency has only expressed his inability to trace the petitioner as the Sarna town was a big, whereas, the process server of the court has traced the petitioner herein and on his refusal to accept the summons has affixed a copy of the house of the petitioner herein. It is also discernible from address of the petitioner disclosed in this petition when matched with the address shown on the summons issued by the Magistrate is found to be same. 8. Moreover, section 74 of Cr.P.C lays that when a summons issued by a Court is served outside the local limits of its jurisdiction, and in any case where the officer who has served a summons is not present at the hearing of the case, an affidavit purporting to be made before a Magistrate that such summons has been served is admissible in evidence and the statements made therein shall be deemed to be correct unless and until contrary is proved. In this case also, the process server of the court has sent his report through Civil Judge (Sr. Division, Pathankot). In this case also, the process server of the court has sent his report through Civil Judge (Sr. Division, Pathankot). It is further to be noted that from 26.01.2015 i.e when the petitioner physically harassed the respondent-wife by beating her and since then she is living at her parental house, the petitioner has not even filed the petition for restitution of conjugal rights if he was really interested to take her back to his home nor has he cared for providing her maintenance. In such facts of matter, the satisfaction of Magistrate regarding willful avoiding of service cannot be said to be faulted. 9. There is another aspect of the matter which cannot lose sight of is that proper remedy to the petitioner was to seek the setting aside of ex-parte order of the Magistrate before the same court within 3 months from the date of knowledge thereof as contained in clause (6) of section 488 Cr.P.C and not by way of filing revision petition as the provisions concerning maintenance in Cr.P.C are primarily civil in nature and not strictly criminal in nature and it itself being a self contained code, remedy under it ought to have been availed. 10. In view of the facts discussed above, the petition lacks merit, as such dismissed.