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2019 DIGILAW 468 (JK)

Amarpreet Singh v. Minali Kour

2019-10-25

TASHI RABSTAN

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JUDGMENT : Tashi Rabstan, J. 1. Respondent, a minor girl child studying in 9th Class, through her mother is in Courts since 2012, defending her right to claim maintenance from her father, the petitioner herein, who claims to be unaware of his moral and legal duty to maintain his minor daughter. 2. Petitioner through the medium of this second revision petition, calls in question, the order dated 22.08.2013, passed by Learned Additional Sessions Judge, Jammu, whereby his criminal revision No. 06/Cr. Rev. has been dismissed and order dated 25.03.2014, passed by the Electricity Magistrate (JMIC), Jammu, rejecting the application of the petitioner for condonation of delay in filing application for setting aside the exparte order dated 26.09.2012, in a case titled ‘Minal Kour v. S. Amarjeet Singh’ whereby it has granted maintenance @ Rs. 5000/- per month in favour of the minor daughter-the respondent herein. Alternatively, the petitioner prays to treat this petition under Section 561-A Cr.P.C for quashing the aforesaid orders. 3. Heard and considered the rival contentions of learned counsel appearing for the parties and perused the record. 4. It has been contended by the learned counsel appearing for petitioner that the petitioner was never duly served and the Magistrate has not recorded his satisfaction as to the willful avoiding of service of summons while proceeding ex-parte, thus, the petitioner has been condemned unheard which is against the mandate of law. It is further contended that presumption of service of petitioner drawn by Courts below from the appearance of father of petitioner before the judicial clerk on 28th April, 2012, who is a practicing advocate, is not legally sustainable, as the Ld. Presiding Officer was on leave that day. He further avers that subsequent issuance of notice on 03.05.2012, is an acknowledgement of the fact that the alleged appearance of father of petitioner is of no consequence. He also submits that Courts below have failed to appreciate the fact the petitioner is not earning like as pleaded and determined, whereas, the mother of the respondent is a earning lady and is able to maintain the respondent as after the divorce between the petitioner and the mother of the respondent, the respondent is living with the mother. He also submits that Courts below have failed to appreciate the fact the petitioner is not earning like as pleaded and determined, whereas, the mother of the respondent is a earning lady and is able to maintain the respondent as after the divorce between the petitioner and the mother of the respondent, the respondent is living with the mother. The learned counsel has also challenged the order refusing to condone the delay and consequently rejecting the application setting aside the said ex-parte order of maintenance on the ground that no justifiable reasons are mentioned by Trial Court in its order and delay was on account of his pursuing the legal remedy before revision court. 5. Per contra, learned counsel appearing for the respondent has submitted that the petitioner being a father of the respondent, a minor girl child, has moral and legal duty to maintain the respondent and cannot shift this obligation by stating that the mother of the respondent is earning lady. She contends that service of summons regarding maintenance proceedings upon the petitioner is duly effected and summons were received by the father of the petitioner as reflected in the report of process server dated 21.04.2012 pursuant to Court order dated 16.04.2012, which is further fortified by consequent appearance of father of the petitioner before court on 28.04.2012. She further contends that subsequent issuance of notice on 03.05.2012, doesn’t show that previous acceptance of notice and appearance was of no consequence. She further contends that even the subsequent report of process server dated 21.05.2012, says that the petitioner was not at home and the process server informed his family members about next date fixed in the case before the Court. 6. At the very outset, it is made clear that this petition in the form of second revision is not maintainable in view of sub clause 3 to Section 435 of Criminal Procedure Code which clearly says that aggrieved party can file revision either to the High Court or to the Sessions Judge, and no further application by the same person shall be entertained by the either of them. Since the petitioner has argued almost same grounds in first revision before Sessions Judge below, therefore this second revision is not maintainable. 7. The petitioner has, in the alternative, prayed to treat this petition under Section 561-A Cr.P.C for quashing the aforesaid orders. Since the petitioner has argued almost same grounds in first revision before Sessions Judge below, therefore this second revision is not maintainable. 7. The petitioner has, in the alternative, prayed to treat this petition under Section 561-A Cr.P.C for quashing the aforesaid orders. Again, if we consider this to be petition under section 561-A, the Supreme Court as well as this Court in catena of judgments has held that where the petitioner has raised almost all those pleas which were raised before the revisional court, then, the inherent powers cannot be invoked as the petition would virtually be a second revision in disguise. It is also settled position that while exercising the inherent powers under section 561-A Cr.P.C, the High Court doesn’t function as a Court of Appeal or revision. (See:- Deepti Alias Arati Rai v. Akhil Rai and Ors. (1995) 5 SCC 751 , Krishnan and Anr. v. Krishnaveni and Anr., (1997) 4 SCC 214, K.L.E Society & Ors. v. Siddalingesh, AIR 2008 SC 1602). 8. Although, the petition in the nature of second revision is prohibited still it is not a complete bar to exercise the inherent powers conferred upon this Court under section 561-A Cr.P.C, if the order sought to be quashed suffers from manifest illegality and cause glaring injustice. In order to test the legality of order passed by the Trial Court, it would be appropriate to have a view of grounds of challenge. The precise 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 16.04.2012, for the appearance of the petitioner herein and the process server in his report dated 21.04.2012 reported that he visited the residential address of the petitioner, however, the petitioner was not available at his home and the summons were received by the father of the petitioner by putting his signatures and same is reflected in the report. Perusal of trial court order dated 28.04.2012 reveals that father of the petitioner who is stated to be advocate by profession has entered his appearance before the judicial clerk of Court as the Presiding Officer was on official duties that day and has also taken the copy of petition. Perusal of further Trial Court order on 03.05.2012, shows that a fresh notice was issued without assigning any reasons and the report of the process server pursuant to said read that the petitioner was not at home and the process server informed his family members about next date fixed in the case before the Court. 9. In the above backdrop, it is apt to say that summon is required to be served in the manner prescribed in the applicable Sections of Cr.P.C. and 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. 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. 10. The petitioner in the present case has insisted that appearance of his father before the judicial clerk is of no consequence, thus, service cannot be presumed. However, the petitioner has not even whispered about the acceptance of the summons by his father at his residential home and putting his signatures on the report of process server. 10. The petitioner in the present case has insisted that appearance of his father before the judicial clerk is of no consequence, thus, service cannot be presumed. However, the petitioner has not even whispered about the acceptance of the summons by his father at his residential home and putting his signatures on the report of process server. Mere issuance of second notice without recording reasons regarding the status of first notice cannot lead to presumption that first notice was not duly served. In the given circumstances and considering the nature of proceedings as discussed above, it cannot be believed that the petitioner was not served. 11. Coming to the next contention of the petitioner that mother of the respondent is a earning lady and has sufficient resources to maintain the respondent is also rejected for the reasons that it the moral and legal duty of the father to maintain his unmarried daughter so also, when she is minor and as stated studying in 9th Class. The father cannot shift the burden of maintain his daughter to his divorced wife even if such wife is earning. Father is duty bound to maintain his unmarried daughter not only till she attains the majority but also till she gets married and settle down with her husband. The maintenance amount of Rs. 5000/- month in this case is also not on higher side, considering her reasonable necessities of expensive education, food, shelter, accommodation and other basic necessities especially of a girl child. 12. The petitioner has further challenged order of the Trial Court rejecting his Condonation of Delay application in filing application for setting aside the ex-parte order of maintenance on the ground that the petitioner was rightfully pursuing his legal remedy before the Revision Court, so the Trial Court ought to have condoned his delay in filing application for setting aside the ex-parte order and decided the application on merit. In order to appreciate this contention I perused the whole record and it was found that ex-parte order of maintenance was passed on 26.09.2012, which was challenged by the petitioner before first revisional court on 26.06.2013, which came to be decided on 22.08.2013 and the petitioner filed the Condonation of Delay for filing application for setting aside the ex-parte order before the Trial Court on 17.09.2013. In terms of proviso to sub Section 6 of Section 488 Cr.P.C., an application for setting aside the ex-parte order of maintenance can be made for the good cause shown, within a period of three months from the date thereof and in the present the petitioner filed the revision petition against the ex-parte order without availing the remedy to seek setting aside of ex-parte order, that too, after nine months from the passing of ex-parte order of maintenance. The petitioner has not even shown the good cause as to why he didn’t choose to avail alternate remedy before filing the first revision petition that too after nine months. 13. In view of the facts of the case and for the reasons discussed above, this petition lacks merit, as such dismissed.