Andhra Pradesh High Court - Amravati
Shaik Sharmilabi vs Shaik Meeravali And Another on 21 October, 2022
1
THE HON'BLE SRI JUSTICE A. V. RAVINDRA BABU
CRIMINAL REVISION CASE NO.455 OF 2010
ORDER:-
Heard the learned counsel for the petitioner.
2) According to the office, proof of service with regard to respondent No.1 is filed in the office, but he did not appear.
3) Sri Y. Jagadeeswara Rao, learned Assistant Public Prosecutor representing learned Public Prosecutor, reported that he is only a formal party.
4) This Criminal Revision Case is filed challenging the order dated 17.09.2008 in C.F.No.780/09.05.2008 in M.C.No.56/2000 on the file of the Judge, Family Court-cum-IV Additional District & Sessions Judge, Vijayawada.
5) The brief facts of the case are that, originally the present petitioner filed a maintenance case before the Judge, Family Court- cum -IV Additional District & Sessions Judge, Vijayawada and it was dismissed on merits. The present petitioner challenging the said order, filed Crl.R.C.No.1204 of 2003 on the file of this Court under Sections 397 and 401 Cr.P.C. and this Court disposed of the said Criminal Revision Case on 18.04.2007 allowing it and by granting 2 maintenance of Rs.500/- to the petitioner. Subsequently, the petitioner filed Crl.M.P.No.426 of 2007 before the trial Court for recovery of arrears of maintenance.
6) While so, the contention of the petitioner in C.F.No.780/09.05.2008 before the trial Court is that the disputes between the petitioner and the respondent are settled. Later, the present petitioner, in view of the settlement arrived at outside the Court, filed C.F.No.780/09.05.2008 to cancel the order of maintenance.
7) The learned Judge, Family Court by virtue of order, dated 17.09.2008, that is impugned order, rejected the same without numbering by holding that no reasons are contemplated under Section 127 Cr.P.C., in the petition to cancel the maintenance granted by the Hon'ble High Court and the said order of High Court cannot be cancelled, as such, the petition is not maintainable. Challenging the same, the present Criminal Revision Petition filed.
8) Now, the point that arises for consideration is:-
"Whether the impugned order is sustainable under law and facts of the case?"3
9) The learned counsel for the petitioner namely Sri V. Raghu contend that it is the petitioner who obtained the order of maintenance before the High Court in Crl.R.C.No.1204/2003 as against the dismissal order in M.C.No.56/2000 and it is the petitioner, on account of the settlement that was arrived at outside the Court, sought to cancel the said order and the learned trial judge, without numbering the petition, rejected the same. The order of High Court in Crl.R.C.No.1204 of 2003 merges with the trial court order and it is to be treated as order of the trial court.
10) I have gone through the material available on record.
11) As seen from the copy of the petition under Section 127 Cr.P.C., the petitioner has furnished proper reasons to cancel the order of maintenance. It appears that the learned Judge, Family Court, under an erroneous impression, opined that the orders of the High Court cannot be cancelled. In my considered view, the orders of the High Court in Crl.R.C.No.1204/2003 merges with the order of the trial Court. The said order was passed setting aside the order passed in M.C.No.56/2000 by granting an amount of Rs.500/- to the petitioner towards maintenance. Viewed from any angle, when the petitioner voluntarily filed application under Section 127 Cr.P.C., to 4 cancel the order of maintenance claiming that there was a final settlement arrived at for a sum of Rs.1,25,000/- and that she also received that amount, the learned Judge ought to have numbered the petition and decided that application after issuing notice to respondent. Under the circumstances, the impuged order under challenging is not at all maintainable under the facts. As such, it is liable to be set aside.
In the result, the Criminal Revision Case is allowed setting aside the order dated 09.05.2008 in C.R.No.780/09.05.2008 in M.C.No.56/2000 on the file of the Judge, Family Court-cum-IV Additional District & Sessions Judge, Vijayawada. The Judge, Family Court-cum-IV Additional District & Sessions Judge, Vijayawada is directed to number the petition and dispose the said application in accordance with law.
Consequently, miscellaneous applications pending, if any, shall stand closed.
________________________ JUSTICE A. V. RAVINDRA BABU Dt.21.10.2022.
ARB 5 THE HON'BLE SRI JUSTICE A. V. RAVINDRA BABU CRIMIAL REVISION CASE No.455 of 2010 Date: 21.10.2022 ARB