Smt Sikharani Chudasma vs Shri Hitendra Chudasma
2022 Latest Caselaw 10417 MP

                                1
             IN THE HIGH COURT OF MADHYA PRADESH
                          AT JABALPUR
                              BEFORE
       HON'BLE SHRI JUSTICE SUSHRUT ARVIND DHARMADHIKARI
                       ON THE 2nd OF AUGUST, 2022

                    WRIT PETITION No. 6921 of 2015

        Between:-
1.      SMT SIKHARANI CHUDASMA W/O SHRI
        HITENDRA CHUDASMA, AGED ABOUT 36
        YEARS, R/O H.NO 2290, VFJ ROAD, RAM NAGAR,
        JABALPUR (MADHYA PRADESH)

2.      ATHARV    CHUDASMA     W/O     HITENDRA
        CHUDASMA, AGED ABOUT 10 MONTHS,
        THROUGH     NEXT    FRIENDS     NATURAL
        GUARDIAN HIS MOTHER SMT. SIKHARANI
        CHUDASMA, R/O H.NO. 2290, VFJ ROAD, RAM
        NAGAR, JABALPUR (MADHYA PRADESH)

                                                           .....PETITIONER
        (BY SHRI MOHD. RIYAZ- ADVOCATE)

        AND

        SHRI HITENDRA CHUDASMA S/O SHRI
        JAYANTILAL CHUDASMA, AGED ABOUT 40
        YEARS, R/O C-25, IN HOUSE OF KK SHARMA
        KHEDLI PHATAK SUBHASH COLONY KOTA,
        DISTRICT KOTA (RAJASTHAN), PRESENT
        ADDRESS IFFCO CHOWK SECTOR 17, HOUSE OF
        SURENDER SINGH SORAWAT CHHOTI MATA KI
        GALI GUDGAON HARYANA (HARYANA)

                                                         .....RESPONDENT
        (NONE)

      This petition coming on for admission this day, th e court passed the
following:
                                 ORDER

Heard.

In this petition under Article 227 of the Constitution of India, the petitioners have assailed the order dated 24.04.2015 passed in MJC

No.707/2014 by 2nd Additional Judge, Family Court, Jabalpur by which the application for amendment in the cause title has been rejected by the Court below on the ground that he is not having the jurisdiction.

The brief facts leading to filing of the case are that the petitioners have filed application under Section 125 of the Cr.P.C. against the respondent seeking relief of grant of maintenance. At the time of filing of the application, the petitioner No. 2 was aged about 10 months and was known by the name of "Atharv Chudasma". However, when the petitioner No. 2 was admitted in the school, in the admission register his name was mentioned as "Aayush Kumar" and is presently known by the said name, therefore, the petitioner filed the

application seeking amendment in the cause title to change the name of petitioner No. 2 as Aayush Kumar in place of Atharv Chudasma. Learned Court below after hearing the arguments rejected the same vide impugned order dated 24.04.2015 on the ground that the amendment can be allowed only in the civil proceedings and not in the criminal proceedings.

Learned counsel for the petitioners submits that the Court below had erred in rejecting the application on the ground of jurisdiction, inasmuch as, the proceedings under Section 125 of the Cr.P.C. is quasi civil and quasi criminal in nature, therefore, the same ought to have been allowed.

Learned counsel for the petitioners has placed reliance on the judgements delivered by the various High Courts in the cases of Sainulabdheen Vs. Beena, reported in 2004 CriLJ 2351 (Kerala High Court), Chinnappaiyan Vs. Chinnathayee passed in Crl. R.C. No. 780 of 2006, dated 03.02.2010 (Madras High Court) and Sau. Mandakini B. Pagire Vs. Bhausaheb Genu Pagire and Anr. reported in 2009 CRI.L.J. 70 (Bombay High Court) in support of his contention.

The question which crops up for consideration before this Court is that the proceedings under Section 125 of the Code of Criminal Procedure, 1973 is pending, whether a litigant can be permitted to amend the petition? has arisen for consideration. The petitioners have moved an application for correction in the name which does not change the nature of the petition, therefore, the amendment can be allowed in view of the fact that the proceedings under Section 125 of the Cr.P.C. is partly criminal and partly civil in nature.

Even if, there is no specific provision for amendment available in the Criminal Procedure Code such amendment could be allowed. In fact the proceedings under Section 125 of the Code is a social legislation to protect the women/children /parents, who are in need of support. When such claim for maintenance is made under the personal law, the right is decided by the Civil Court. Only with a view to have a speedy disposal of such claims for maintenance, having regard to the urgent need of the victims of desertion and neglect, the Parliament thought it fit to incorporate the provision to enable the victims to claim maintenance through the criminal Court. Thus, though a petition under Section 125(1) of the Code is made before the criminal Court- as defined under Section 6 of the Code essentially, the right that is decided by the said Court is purely civil in nature. Therefore, undoubtedly, the order made by the Magistrate under Section 125(1) of the Code for maintenance is the culmination

of such a civil right of an individual.

This Court is well aware of the fact that there is no specific provision under the said Code for amendment but various Courts have held that petitions seeking such amendment to correct the curable infirmities, can be allowed even in respect of complaints. In this regard, a reference may usefully be made to the

following judgements. In paragraphs No. 10 and 11 of the judgment delivered by the Madras High Court in the case of Chinnappaiyan (supra), it has been held that:-

"10. In U.P. Pollution Control Board v. Messrs Modi Distillery and others, (1987) 3 SCC 684, wherein the name of the company was wrongly mentioned in the complaint (i.e.) instead of M/s.Modi Industries Limited, the name of the company was mentioned as M/s.Modi Distillery. In such a situation, the Hon'le Supreme Court held as follows:-

"The learned single Judge has focussed the attention only on the technical flaw in the complaint and has failed to comprehend that the flaw had occurred due to the recalcitrant attitude of Messrs Modi Distillery and furthermore the infirmity is one which could be easily removed by having the matter remitted to the Chief Judicial Magistrate with a direction to call upon the appellant to make the formal amendments to the averments contained n paragraph 2 of the complaint so as to make the controlling company of the industrial unit figure as the concerned accused in the complaint. All that has to be done is the making of a formal application for amendment by the appellant for leave to amend by substituting the name of Messrs Modi Industries Limited, the company owning the industrial unit, in place of Messrs Modi

Distillery. ............."

"......We have already pointed out that the technical flaw in the complaint is attributable to the failure of the industrial unit to furnish the requisite information called for by the Board. Furthermore, the legal infirmity is of such a nature which could be easily cured. ....."

11. A close reading of the above judgement of the Hon'ble Supreme Court would make one to easily understand that the Hon'ble Supreme Court, in the given set of facts, was of the view that the legal infirmity therein was such a nature which could be easily cured by means of a formal application for amendment. The words "formal amendment" and "easily cured" are to be underscored. This makes it abundantly clear that if the infirmity is of such a nature which cannot be easily cured or if the amendment is not a formal one, it goes without saying that such amendment cannot be entertained."

Now, the next question is, whether on facts in the case on hand, such amendment could be allowed or not. Since it is held that such proceeding is quasi civil in nature, the law laid down by the Hon'ble Supreme Court relating to amendment of plaint in civil suits can be taken not of as a guidance to decide as to whether in the given set of facts such amendment could be allowed. It is well settled by the Hon'ble Supreme Court that if the amendment sought for would change the nature and character of the suit or proceedings, the same shall not be allowed.

In the case in hand, only the name of the petitioner No. 2 is required to be changed and the amendment sought for would not change the nature and character of the suit or proceedings. In the case in hand, only the name of petitioner No. 2 needs to be changed for the reasons stated therein that when the petitioner No. 2 was 10 months old he was called by name "Atharv Chudasma" whereas at the time of taking admission in the school his name was registered as "Aayush Kumar". Allowing such amendment to cure the said mistake, in my considered opinion, will not change either the nature or the character of the proceedings. In such view of the matter, I am of the considered opinion that the learned Court below has erred in rejecting the application for amendment.

Accordingly, the writ petition is allowed. The impugned order dated 24.04.2015 passed in MJC No. 707/2014 is hereby set aside. The application for amendment stands allowed. The trial Court is directed to allow the petitioners to incorporate the amendment at the earliest.

No order as to costs.

(S. A. DHARMADHIKARI) JUDGE ashish Digitally signed by ASHISH KUMAR LILHARE Date: 2022.08.03 16:01:25 +05'30'