Bombay High Court
Shri. Raymond Lancy Rodrigues vs Smt. Yogita W/O Raymond Rodrigues ... on 25 February, 2016
Bench: Z.A. Haq
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
CRIMINAL WRIT PETITION NO .158 OF 2015
Shri Raymond Lancy Rodrigues,
Aged about 63 years,
Occupation - Retired Teacher,
R/o P.O. Shithady, Near Corporation
Bank, Main Road, Via Moodbidri,
Manglore (Karnataka) .... PETITIONER
VERSUS
1) Smt. Yogita w/o Raymond Rodrigues,
Aged about 35 years,
Occupation - Business,
R/o 19-20, Baba Mahalle Layout,
C/o Alexander Vincent, Yerkheda,
Kamptee, District Nagpur.
2) Master Marshall s/o Raymond Rodrigues,
Aged about 7 years,
Occupation - Student,
through his Natural Guardian mother -
Yogita Raymond Rodrigues,
R/o 19-20, Baba Mahalle Layout,
C/o Alexander Vincent, Yerkheda,
Kamptee, District Nagpur. .... RESPONDENTS
______________________________________________________________
Shri Amit Khare, Advocate for the petitioner,
Shri N.M. Kolhe, Advocate for the respondents.
______________________________________________________________
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CORAM : Z.A. HAQ, J.
DATED : 25
FEBRUARY, 2016.
th
ORAL JUDGMENT :
1. Heard Shri Amit Khare, learned Advocate for the
petitioner and Shri N.M. Kolhe, learned Advocate for the respondent.
2. Rule. Rule made returnable forthwith.
3. The respondents had filed application bearing No.
E-288/2009, under Section 125 of the Code of Criminal Procedure
which came to be dismissed because of non-appearance of the parties.
The respondents subsequently filed application under Section 125 of
the Code of Criminal Procedure which is registered as Case No.E-
491/2013. In these proceedings, the petitioner had filed an
application (Exhibit No.14) contending that the application filed by the
respondents under Section 125 of the Code of Criminal Procedure was
not maintainable in view of the dismissal of the earlier application.
The Family Court has rejected the application (Exhibit No.14) filed by
the petitioner by the impugned order and the petitioner being
aggrieved by it, has filed this writ petition.
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4. The learned Advocate for the petitioner has submitted that
in the earlier proceedings, the matter was amicably worked out in
mediation and the compromise terms were placed on the record and in
view of the compromise, the application was not prosecuted further by
the respondents and it came to be dismissed for want of prosecution.
It is submitted that in these facts, the second application filed by the
respondents is not maintainable. Reliance is placed on the judgment
given by the Division Bench of Andhra Pradesh High Court in the case
of C.Subramanyam vs. C. Sumathi and another reported in I
(2004) DMC 456. It is submitted that the Family Court has committed
an error in not properly adverting to the issue and the impugned order
is unsustainable and it be set aside and the proceedings filed by the
respondents be quashed.
5. The learned Advocate for the respondents has supported
the impugned order.
6. After hearing the learned Advocates for the respective
parties, I find that the judgment given in the case of C. Subramanyam
vs. C. Sumathi and another does not support the petitioner. The
issue which fell for consideration in the above referred case was as to
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whether the Magistrate has power to restore the proceedings dismissed
for want of prosecution.
7. The learned Advocate for the petitioner has not been able
to point out any bar which disables the party from moving subsequent
application under Section 125 of the Code of Criminal Procedure after
the earlier proceedings are dismissed for want of prosecution. The
incorporation of Section 125 of the Code of Criminal Procedure is
beneficial to the persons who are claiming maintenance from those
who are liable to maintain them. Looking to the nature of
proceedings, the submissions made on behalf of the petitioner cannot
be accepted and it cannot be held that the subsequent proceedings
under Section 125 of the Code of Criminal Procedure will not be
maintainable if the earlier proceedings are dismissed for want of
prosecution.
8. The learned trial Judge has properly dealt with all the
relevant aspects and legal position and has rightly rejected the
application filed by the petitioner. I see no reason to interfere with the
impugned order. The writ petition is dismissed with costs of
Rs.5,000/- to be paid by the petitioner to the respondents within one
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month.
By the order dated 21-08-2015, this Court directed the
petitioner to deposit Rs.50,000/- to show bonafides that the petitioner
wants to amicably settle the matter through mediation. Pursuant to
the above order, the petitioner deposited Rs.50,000/- and by the order
dated 10-12-2015 the respondents are permitted to withdraw the
amount. Shri Amit Khare, learned Advocate for the petitioner has
submitted that till date there is no judicial order imposing the liability
of payment of maintenance on the petitioner. The submission made on
behalf of the petitioner is proper and justified. It is directed that the
amount of Rs.5,000/- to be paid by the petitioner to the respondents
shall be adjusted from the amount of Rs.50,000/- withdrawn by the
respondents. The Family Court shall pass appropriate orders at
appropriate stage in respect of the balance amount of Rs.45,000/-.
JUDGE
pma
