Madras High Court
Renuka vs Viswanathan on 4 April, 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 04.04.2022
CORAM:
THE HONOURABLE MR.JUSTICE M.NIRMAL KUMAR
Crl.O.P.No.23848 of 2017
and
Crl.M.P.No.13815 of 2017
Renuka ... Petitioner
Vs.
Viswanathan ... Respondent
Prayer: Criminal Original Petition has been filed under Section 482
Cr.P.C. to call for the records in Crl.M.P.No.131 of 2013 in M.C.No.48
of 2006 on the file of the Family Court, Pondicherry and quash the
proceeding therein.
For Petitioner : Mr.N.Selvaraj
for Mr.V.V.Sairam
For Respondent : Mr.T.P.Manoharan
Senior Counsel
for Mr.K.P.Jotheeswaran
ORDER
The Criminal Original Petition has been filed to call for the records
in Crl.M.P.No.131 of 2013 in M.C.No.48 of 2006 on the file of the
Family Court, Pondicherry and quash the same.
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2.The petitioner is the wife of the respondent. Earlier, the petitioner
filed a maintenance case in M.C.No.48 of 2006 before the Family Court,
Pondicherry, which was dismissed by the trial Court by an order dated
18.07.2007, against which, the petitioner preferred a Criminal Revision in
Crl.R.C.No.1285 of 2007.
3.This Court by an order dated 25.04.2011 set aside the order of
the trial Court and found that the petitioner is entitled to maintenance of
Rs.25,000/- per month from the respondent from the date of petition and
directed the respondent to pay the amount, against which, the respondent
/Husband approached the Apex Court. The Apex Court dismissed the
petition. Thereafter, the respondent filed a petition in Crl.M.P.No.131 of
2013 under Section 127(1) Crl.R.C with a prayer to alter the order of
maintenance in M.C.No.48 of 2006 for subsequent charge in
circumstances and she is not entitled for maintenance and sought for
modification.
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4.The trial Court entertained the petition and kept pending for quite
some time, thereafter, the respondent/husband filed a Criminal
O.P.No.11788 of 2016 before this Court seeking for earlier disposal of
Crl.M.P.No.131 of 2013 and the petitioner herein also participated in the
same. Thereafter, this Court passed a conditional order on 04.07.2016
directing the petitioner/Husband to pay the arrears of maintenance to his
wife Renuka and directed the case could be listed on 06.10.2016 for
reporting compliance. On 06.10.2016, this Court found that the petitioner
already complied with the direction of this Court and directed the Family
Court, Puducherrry, to dispose of Crl.M.P.No.131 of 2013 in M.C.No.48
of 2006 within a period of six months. At this stage, the petitioner/wife
has filed this quash petition.
5.The contention of the learned counsel for the petitioner is that the
Courts below erred in taking cognizance of petition in Crl.M.P.No.131 of
2013 filed under Section 127(1) Cr.P.C, no scope of dismissal of
M.C.No.48 of 2006. The prayer sought in Crl.M.P.No.131 of 2013 is
unknown to law beyond the scope of Section 127 CR.P.C. Hence, filed
this quash petition.
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6.He further submitted that earlier the respondent herein filed an
appeal before the Supreme Court, challenging the order passed in
Crl.R.C.No.1285 of 2007 and the same was not entertained. Thereafter,
the respondent filed Crl.M.P.No.131 of 2013, which is beyond the scope
of Section 127 Cr.P.C. Further, submitted that by filing of such petition,
the respondent is attempting to drag on the proceedings and failing to pay
the maintenance amount as ordered by this Court. The only grievance
now is that in the event of the respondent directed to proceed with
Crl.M.P.No.131 of 2013, the petitioner should be permitted to adduce
oral or other evidence. The petitioner admits receiving demand draft of
Rs.15,75,000/- on 03.01.2022.
7.Counsel for the respondent submitted that in obedience to the
order in Crl.O.P.No.11788 of 2016, demand draft for Rs.15,75,000/-
handed over. Thereafter, proceeded with trial in Crl.M.P.No.131 of 2013
by examining three witnesses including one Income Tax Officer. The
petitioner herein participated in the proceedings, failed to cross examine
none of the witnesses examined, on the other hand, approached this
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Court, obtained stay. Due to which, Crl.M.P.No.131 of 2013 could not be
progressed. Hence, the direction issued by this Court order dated
06.10.2016 in Crl.O.P.No.11788 of 2016 to dispose of Crl.M.P.No.131
of 2013 in M.C.No.48 of 2006 within a period of six months could not be
complied.
8.He further submitted that the respondent has got no objection for
the petitioner to cross examine the witnesses and his contention is that the
petition filed under Section 127(1) CR.P.C. is maintainable, which is
approved by this Court in Crl.O.P.No.11788 of 2016 the petitioner/wife
participated in Crl.O.P.No.11788 of 2016 and not questioned
maintainability of petition under Section 127(1) Cr.P.C. Now, for the
purpose of dragging on the proceedings and to further continue the agony
to the respondent, the petitioner filed this petition. Further, the
petitioner/wife has suppressed the proceedings and order passed by this
Court in Crl.O.P.No.11788 of 2016 earlier.
9.Considering the submissions and on perusal of the materials, the
objections of the petitioner in entertaining petition under Section 127(1)
Cr.P.C. in Crl.M.P.No.131 of 2013 in M.C.No.48 of 2006 cannot be
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countenanced. The Apex Court in the case of Sanjeev Kapoor Vs.
Chandana Kapoor and others reported in (2020) 13 Supreme Court
Cases 172 in para 24 extracting Sections 125 and 127 Cr.P.C. has held
that Court after passing judgment or final order in proceedings under
Section 125 Cr.P.C. does not become functus officio. It would be
appropriate to extract the following paragraphs:
23.The closer look of Section 125 Code of Criminal
Procedure itself indicates that the Court after passing
judgment or final order in the proceeding Under
Section 125 Code of Criminal Procedure does not
become functus officio. The Section itself contains
express provisions where order passed Under Section
125 Code of Criminal Procedure can be cancelled or
altered which is noticeable from Section 125(1),
Section 125(5) and Section 127 of Code of Criminal
Procedure, which are to the following effect:
125(1). Order for maintenance of wives, children and
parents. -
(1) if any person having sufficient means neglects or refuses
to maintain-
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(a) his wife, unable to maintain herself, or
(b) his legitimate or illegitimate minor child, whether
married or not, unable to maintain itself, or
(c) his legitimate or illegitimate child (not being a married
daughter) who has attained majority, where such child is,
by reason of any physical or mental abnormality or injury
unable to maintain itself, or
(d) his father or mother, unable to maintain himself or
herself, a Magistrate of the first class may, upon proof of
such neglect or refusal, order such person to make a
monthly allowance for the maintenance of his wife or such
child, father or mother, at such monthly rate, as such
Magistrate thinks fit, and to pay the same to such person as
the Magistrate may from time to time direct:
Provided that the Magistrate may order the father of a
minor female child referred to in Clause (b) to make such
allowance, until she attains her majority, if the Magistrate
is satisfied that the husband of such minor female child, if
married, is not possessed of sufficient means:
[Provided that the Magistrate may, during the pendency of
the proceeding regarding monthly allowance for the
maintenance under this Sub-section, order such person to
make a monthly allowance for the interim maintenance of
his wife or such child, father or mother, and the expenses of
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such proceeding which the Magistrate considers
reasonable, and to pay the same to such person as the
Magistrate may from time to time direct:
Provided also that an application for monthly allowance for
the interim maintenance and expenses of proceeding under
the second proviso shall, as far as possible, be disposed of
within sixty days from the date of the service of notice of the
application to such person.]
Explanation. - For the purposes of this Chapter, -
(a) "minor" means a person who, under the provisions of
the Indian Majority Act, 1875(9 of 1875) is deemed not to
have attained his majority;
(b) "wife" includes a woman who has been divorced by, or
has obtained a divorce from, her husband and has not
remarried.
125(5). On proof that any wife in whose favour an order has
been made under this Section is living in adultery, or that
without sufficient reason she refuses to live with her
husband, or that they are living separately by mutual
consent, the Magistrate shall cancel the order.
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127. Alteration in allowance. - [(1) On proof of a change in
the circumstances of any person, receiving, Under Section
125 a monthly allowance for the maintenance or interim
maintenance, or ordered under the same Section to pay a
monthly allowance for the maintenance, or interim
maintenance, to his wife, child, father or mother, as the case
may be, the Magistrate may make such alteration, as he
thinks fit, in the allowance for the maintenance or the
interim maintenance, as the case may be.]
(2) Where it appears to the Magistrate that, in consequence
of any decision of a competent Civil Court, any order made
Under Section 125 should be cancelled or varied, he shall
cancel the order or, as the case may be, vary the same
accordingly.
(3) Where any order has been made Under Section 125 in
favour of a woman who has been divorced by, or has
obtained a divorce from, her husband, the Magistrate shall,
if he is satisfied that -
(a) the woman has, after the date of such divorce,
remarried, cancel such order as from the date of her
remarriage.
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(b) the woman has been divorced by her husband and that
she has received, whether before or after the date of the
said order, the whole of the sum which, under any
customary or personal law applicable to the parties, was
payable on such divorce, cancel such order -
i) in the case where such sum was paid before such order,
from the date on which such order was made,
ii) in any other case, from the date of expiry of the period, if
any, for which maintenance has been actually paid by the
husband to the woman;
(c) the woman has obtained a divorce from her husband and
that she had voluntarily surrendered her rights to
[maintenance or interim maintenance, as the case may be]
after her divorce, cancel the order from the date thereof.
(4) At the time of making any decree for the recovery of any
maintenance or dowry by any person, to whom monthly
allowance for the maintenance and interim maintenance or
any of them has been ordered to be paid Under Section 125,
the Civil Court shall take into account that sum which has
been paid to, or recovered by, such person as monthly
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allowance for the maintenance and interim maintenance or
any of them, as the case may be, in pursuance of the said
order”
25. In Section 125 Code of Criminal Procedure uses the
expression used is "as the Magistrate from time to time
direct". The use of expression 'from time to time' has
purpose and meaning. It clearly contemplates that with
regard to order passed Under Section 125(1) Code of
Criminal Procedure, the Magistrate may have to exercise
jurisdiction from time to time. Use of expression 'from time
to time' in is exercise of jurisdiction of Magistrate in a
particular case. Advanced Law Lexicon by P. Ramanatha
Aiyar, 3rd edition defines 'time to time' as follows:
Time to time. As occasion arises
26. The above Legislative Scheme indicates that Magistrate
does not become functus officio after passing an order
Under Section 125 Code of Criminal Procedure, as and
when occasion arises the Magistrate exercises the
jurisdiction from time to time. By Section 125(5) Code of
Criminal Procedure, Magistrate is expressly empowered to
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cancel an order passed Under Section 125(1) Code of
Criminal Procedure on fulfilment of certain conditions.
27. Section 127 Code of Criminal Procedure also discloses
the legislative intendment where the Magistrate is
empowered to alter an order passed Under Section 125
Code of Criminal Procedure Sub-section (2) of Section 127
Code of Criminal Procedure also empower the Magistrate
to cancel or vary an order Under Section 125. The
Legislative Scheme as delineated by Sections 125 and 127
Code of Criminal Procedure as noted above clearly
enumerated the circumstances and incidents provided in the
Code of Criminal Procedure where Court passing a
judgment or final order disposing the case can alter or
review the same. The embargo as contained in Section 362
is, thus, clearly relaxed in proceeding Under Section 125
Code of Criminal Procedure as indicated above.
28. The submissions which have been pressed by the learned
Counsel for the Appellant were founded only on embargo of
Section 362 and when embargo of Section 362 is expressly
relaxed in proceeding Under Section 125 Code of Criminal
Procedure, we are not persuaded to accept the submission
of counsel for the Appellant that the Family Court was not
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entitled to set aside and cancel its order dated 06.05.2017 in
facts and circumstances of the present case.”
it is seen that now the only grievance of the petitioner is that she should
be given an opportunity to cross examine the witnesses, already three
witnesses were examined including the Income Tax Officer. In view of
the same, the petitioner further not to delay the proceedings in
Crl.M.P.No.131 of 2013, the trial Court is reminded that this Court in
Crl.O.P.No.11788 of 2016 by an order dated 06.10.2016 already issued a
direction to dispose of Crl.M.P.No.131 of 2013 within a period of six
months, hence, the trial Court to dispose of Crl.M.P.No.131of 2013
within a period of four months from the date of receipt of a copy of this
order. Accordingly, the Criminal Original Petition is disposed of.
Consequently, connected miscellaneous petition is closed.
Index : Yes / No 04.04.2022
Internet : Yes/No
sms
To
The Family Court, Pondicherry.
https://www.mhc.tn.gov.in/judis
M.NIRMAL KUMAR, J.
sms
https://www.mhc.tn.gov.in/judis
Crl.O.P. No.23848 of 2017
and
Crl.M.P.No.13815 of 2017
04.04.2022
https://www.mhc.tn.gov.in/judis
