Madras High Court
Nisar Ahamad vs Jeenath Nisha on 22 February, 2021
Author: P.Velmurugan
Bench: P.Velmurugan
Crl.R.C.No.102 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 22.02.2021
CORAM
THE HONOURABLE MR.JUSTICE P.VELMURUGAN
Crl.R.C.No.102 of 2021 and
Crl.M.P.No.1878 of 2021
Nisar Ahamad ... Petitioner
Vs.
1.Jeenath Nisha
2.Minor.Naseer Ahamad,
S/o.Nisar Ahamad,
Minor 2nd respondent represented by
his mother or next friend Jeenath Nish
Both are residing at
D.No.11/8, Ayyanar Kovil Street,
Prabhu Nagar, Salem-8. ... Respondent
PRAYER: Criminal Revision Petition filed under Sections 397 r/w 401 of
Criminal Procedure Code, to set aside the order dated 09.01.2020 made in
C.M.P.No.142 of 2019 in M.C.No.10 of 2018 on the file of Family Court,
Salem, and to allow the Criminal Revision Petition.
For Petitioner : Mr.C.Prabakaran
For Respondent : Mr.R.Suryaprakash
Government Advocate
*****
https://www.mhc.tn.gov.in/judis/
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Crl.R.C.No.102 of 2021
ORDER
The petitioner is the husband and the respondents 1 and 2 are his wife and and minor son respectively. The respondents have filed a petition under Section 125 Cr.P.C., before the learned Family Judge, Salem in M.C.No.10 of 2018 for maintenance. After service of summon, the petitioner failed to appear before the Court below. Hence, the learned Family Judge, Salem passed an exparte order dated 06.03.2019. Thereafter, the petitioner has filed a petition under Order 9 Rule 7 of C.P.C in C.M.P.No.102 of 2020 in M.C.No.10 of 2018 to set aside the exparte order dated 06.03.2019 and the same was allowed by the learned Family Judge, Salem, by order, dated 09.12.2019 with cost of Rs.5,000/- to be paid to the respondents, failing which the order would stand dismissed. The petitioner did not pay the cost of Rs.5,000/- and failed to comply with the order dated 09.12.2020 and hence, the petition was dismissed by order, dated 09.01.2020, which is under challenge before this Court.
2.The learned counsel for the petitioner would submit that the 1st respondent was subjected to cruelty by the petitioner and his in-laws is false. The 1st respondent voluntarily left the matrimonial house and living with her parents and the same has to be decided only in the maintenance case. He would further submit that soon after passing an exparte decree, the petitioner https://www.mhc.tn.gov.in/judis/ 2/6 Crl.R.C.No.102 of 2021 immediately filed the petition under 9 Rule 7 of C.P.C., to set aside the exparte decree. The learned Family Judge failed to consider the same and imposed a cost of Rs.5,000/- to be paid to the respondent which warrants interference of this Court.
3.Heard and perused the records.
4.Since the Criminal Revision is against the conditional order passed by the learned Family Judge, Salem, no notice is necessary to the respondents. Therefore, this Court is inclined to dispose of the revision at the admission stage itself.
5.Admittedly, the petitioner is the husband and father of the respondents 1 and 2 respectively. Since the maintenance case was pending from the year 2018, the learned Family Judge, Salem passed exparte order in the year 2019 considering the scope of Section 125 Cr.P.C., and also the petitioner did not appear before the Court below. Subsequently, the petitioner has filed a petition under Order 9 Rule 7 of C.P.C., in C.M.P.No.142 of 2019 in M.C.No.10 of 2018 to set aside the exparte order dated 06.03.2019. The learned Family Judge, Salem, by order, dated 09.12.2019 allowed the petition and imposed a https://www.mhc.tn.gov.in/judis/ 3/6 Crl.R.C.No.102 of 2021 cost of Rs.5,000/- to be paid to the respondents and the same was not paid by the petitioner. Due to non payment of cost, the petition in C.M.P.No.142 of 2019 in M.C.No.10 of 2018 has been dismissed.
6.Considering the nature of litigations pending between the parties, this Court is of the view that the petitioner, who has delayed the maintenance case is liable to pay the cost imposed by the learned Family Judge, Family Court, Salem. It is seen that in this case, the minor son is involved and therefore, whatever dispute between the petitioner and the first respondent, they have to sort out their grievance before the competent Court and the minor son has to be necessarily maintained by his father. Therefore, this Court is inclined to set aside the order dated 09.01.2020 passed by the learned Family Judge, Salem.
7.Hence, the order dated 09.01.2020 passed in C.M.P.No.142 of 2019 in M.C.No.10 of 2018 by the learned Family Judge, Salem is liable to be set aside and the same is set aside. The petitioner is directed to deposit the cost of Rs.5,000/- immediately in M.C.No.10 of 2018 and also directed to cooperate with the maintenance case for early disposal. The learned Family Judge, Salem is directed to restore the maintenance case in M.C.No.10 of 2018 on file and the dispose of the same in accordance with law.
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8.With the above directions, this Criminal Revision is disposed of. Consequently, the connected Criminal Miscellaneous Petition is closed. The respondents are permitted to get the cost to be deposited by the petitioner. The Judge, Family Court is directed to pay the said amount on deposit to the respondents without any formal application.
22.02.2021 Speaking Order/Non Speaking Order Index : Yes/No Internet : Yes/No vv2 To The Family Judge, Salem.
https://www.mhc.tn.gov.in/judis/ 5/6 Crl.R.C.No.102 of 2021 P.VELMURUGAN, J.
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