Madras High Court
S. Senthil Kumar vs S. Nachal on 5 November, 2012
Author: M.Venugopal
Bench: M.Venugopal
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 05/11/2012 CORAM THE HONOURABLE MR.JUSTICE M.VENUGOPAL CRL.R.C.(MD)No.517 of 2012 a n d M.P.(MD) No.2 of 2012 S. Senthil Kumar ... Petitioner Vs S. Nachal ... Respondent PRAYER Criminal Revision Petition filed under Sections 397 and 401 of Cr.P.C., to call for the records in M.C.No.47 of 2010 dated 26/11/2010 on the file of the learned Principal District Munsif-cum-Judicial Magistrate, Karaikudi and set aside the same and to allow this revision. !For Petitioner ... Mr.R.Boomirajan ^For Respondents ... M/s.R.Sundar Srinivasan S.Manikandan - - - - - :ORDER
The Revision Petitioner/Respondent (husband) has focused the present Criminal Revision Petition before this Court as against the ex parte order dated 26/11/2010 in M.C.No.47 of 2010 passed by the learned Principal District Munsif- cum-Judicial Magistrate, Karaikudi in directing the petitioner/husband to pay a sum of Rs.5,000/- towards monthly maintenance to the respondent/wife.
2. It is not in dispute that the marriage between the petitioner/husband and the respondent/complainant (wife) took place on 11/6/2009 as per Customs of Nattukottai Chettiar Community.
3. The Learned Principal District Munsif-cum-Judicial Magistrate, Karaikudi, while passing the impugned order in M.C.No.47 of 2010 dated 26/11/2010 has resultantly directed the petitioner/husband to pay the sum of Rs.5,000/- p.m., towards maintenance to the Respondent/Wife on or before 5th of English Calendar month and further directed the payment of said monthly maintenance from the date of filing of the petition i.e., 14/10/2010.
4. The Learned counsel for the Revision petitioner urges before this Court that the trial Court has not given opportunities to the Petitioner/Husband in regard to the production of documents in M.C.No.47 of 2010 and as such the order of the trial Court in M.C.No.47 of 2010 dated 26/11/2010 is liable to be set aside, since it suffers from bias.
5. Advancing his arguments, the Learned counsel for the petitioner/husband strenuously contends that the trial Court has passed an Ex parte impugned order in M.C.No.47 of 2010 dated 6/11/2010 without notice to the petitioner/husband.
6. Expatiating his submissions, the Learned counsel for the petitioner/husband brings it to the notice of this Court that the respondent/wife has filed Crl.M.P.No.1876 of 2012 on the file of the trial Court for recovery of the maintenance amount ordered in M.C.No.47 of 2010 dated 26/11/2010 and the same is pending as on date.
7. It transpires that Criminal Miscellaneous Petition No.2341 of 2011 has been filed by the Respondent/Wife against the Revision Petitioner/Husband for recovery of the maintenance amount ordered by the trial Court and that the said Miscellaneous Petition has been dismissed as not pressed as early as on 15/6/2012.
8. Later, the Respondent/Wife filed Criminal Miscellaneous Petition No.1876 of 2012 on the file of the trial Court against the Revision Petitioner/Husband (for balance recovery of maintenance amount together with other amounts due) on 24/4/2012 and the same has been taken on file on 25/4/2012 and now, the matter stands posted to 23/11/2012 for enquiry before the trial Court.
9. It is represented before this Court that the Revision Petitioner/Husband has paid a sum of Rs.20,000/- (Rupees Twenty thousand only) to the Respondent/Wife, as maintenance, which is not disputed.
10. The main grievance of the Petitioner/Husband is that an Ex parte order of maintenance in M.C.No.47 of 2010 has been passed by the Learned Principal District Munsif-cum-Judicial Magistrate, Karaikudi on 26/11/2010 without notice to him. Therefore, the said maintenance order passed by the trial Court is unsustainable in the eye of law.
11. It is to be borne in mind that the proceedings for claiming maintenance as per Section 125 of the Criminal Procedure Code are in the nature of civil proceedings, though criminal process is applied for the purpose of summary and speedy disposal of such matter, as opined by this Court.
12. Also, it is to be noted that the order passed by the trial Court in proceeding under Section 125 of Cr.P.C., is neither an order of acquittal or nor a conviction. Equally, it is not a discharge order too. In law, on the Revision Petitioner/husband's application, the trial Court can modify/recall/review the Ex parte order of maintenance ordered, if the circumstances so required. As such, this Court is of the considered view that the proceeding under Section 125 of the Criminal Procedure Code can be reviewed/recalled under Section 362 of Cr.P.C., which is no bar.
13. In view of the fact that the Revision Petitioner has taken a positive plea that the trial Court has passed an Ex parte order in M.C.No.47 of 2010 on 26/11/2010 and taking note of the fact that Crl.M.P.No.1876 of 2012 filed by the Respondent/Wife is coming up for hearing on 23/11/2012 before the trial court, this Court opines that it is open to the Revision Petitioner/Husband to file necessary application before the trial Court seeking to modify or recall/review the Ex parte order of maintenance passed in M.C.No.47 of 2010 dated 26/11/2010, if the circumstances so required. Further, the Revision Petitioner/Husband is directed to file appropriate application in this regard as he deems fit and proper within two weeks from the date of receipt of the copy of this order. On such application being filed by the Revision Petitioner/Husband (and numbered by the trial Court), it is open to the Respondent/Wife to file a necessary counter and thereafter, the trial Court is directed to dispose of the Modification/Recall/Review Application and Crl.M.P.No.1876 of 2012 within a period of two months from the date of receipt of the copy of this order. Viewed in that perspective, this Court to secure the ends of justice, dismisses the Criminal Revision Petition, as not maintainable in limini leaving the parties to bear their own costs.
14. Consequently, this Criminal Revision Petition is dismissed and the connected Miscellaneous Petition is also dismissed.
mvs.
To The Principal District Munsif-cum-Judicial Magistrate, Karaikudi