Mukthinuthalapati Ashok Kumar vs Mukthinuthalapati Anuradha

C.V. Nagarjuna Reddy

This Civil Revision Petition is filed against Order, dated 15-12-2011 in TOP.No. 861 of 2011, on the file of the Court of the learned District Judge, Guntur. The petitioner is the husband of the respondent. The respondent filed HMOP. No. 33 of 2008 in the Court of the learned Senior Civil Judge, Bapatla, for restitution of conjugal rights. In the said OP, she has filed IA.No. 232 of 2009 u/s 24 of the Hindu Marriage Act, 1955, for interim maintenance. She has also filed MC. No. 41 of 2008 for monthly maintenance u/s 125 of the Criminal Procedure Code, 1973 (for short ''the Cr.P.C.''), in the Court of the learned Additional Judicial First Class Magistrate, Bapatla. The petitioner filed the above transfer OP before the District Court, Guntur, for transferring MC. No. 41 of 2008 from the Court of the learned Additional Judicial First Class Magistrate, Bapatla, to the Court of the learned Senior Civil Judge, Bapatla, for being tried along with IA. No. 232 of 2009 in HMOP. No. 33 of 2008. This application was dismissed by the learned District Judge on the reasoning that the scope of the applications seeking interim and monthly maintenance respectively before the two Courts is different and distinct and that even if the respondent succeeds in getting the maintenance awarded in both the proceedings, the petitioner can seek modification of the Order granting maintenance u/s 125 Cr.P.C, by filing appropriate application under sub-Section (2) of Section 127 Cr.P.C.

At the hearing, Mr. J. Seshagiri Rao, learned Counsel for the petitioner, submitted that, since the proceedings pending before both the Courts are similar in nature, even though the respondent has invoked the jurisdiction of the learned Judicial First Class Magistrate, Bapatla, u/s 125 Cr.P.C., in order to avoid conflicting orders, it is appropriate to transfer the case pending in the Court of the learned Additional Judicial First Class Magistrate, Bapatla to the Court of the learned Senior Civil Judge, Bapatla.

u/s 125 Cr.P.C., a Magistrate of the First Class is conferred with the jurisdiction to order maintenance for wives, children and parents. Admittedly, the learned Senior Civil Judge, Bapatla, does not have jurisdiction to exercise powers u/s 125 Cr.P.C., unlike a Family Court, which is conferred with such jurisdiction by Section 7 (2) (a) of the Family Courts Act, 1984. Thus, the jurisdiction u/s 125 Cr.P.C., cannot be conferred on the learned Senior Civil Judge, Bapatla.

The learned Counsel for the petitioner placed heavy reliance on the judgment of this Court in Annavarapu Dhanaraj vs. Annavarapu Manikyam and others 2011 (5) ALD 696. In the said case, the application u/s 125 Cr.P.C. was filed before the Family Court at Hyderabad in MC.No. 318 of 2010. The respondent in the said case has filed application for transfer of the said case to the Family Court, Visakhapatnam. When an objection was taken by the Registry of this Court on the maintainability of the transfer CMP on the ground that such an application should have been filed only u/s 407 Cr.P.C., this Court has taken the view that even though the provision for maintenance is made u/s 125 Cr.P.C, for all practical purposes the proceedings are civil in nature and hence, a transfer CMP is maintainable u/s 24 of the Code of Civil Procedure, 1908. In my opinion, this judgment does not, in any manner, help the petitioner for the reason that as noted above, the application u/s 125 Cr.P.C., was filed before the Family Court itself and the transfer was also sought to another Family Court, which was conferred with the jurisdiction to try and decide the application filed u/s 125 Cr.P.C.

In this case, as noticed herein before, the petitioner is seeking transfer of MC.No. 41 of 2008 from the Court of the learned Additional Judicial First Class Magistrate, Bapatla, to the Court of the learned Senior Civil Judge, Bapatla, which does not fall within the definition of the Family Court and consequently, has no jurisdiction to try and decide MC. No. 41 of 2008.

In view of the above, the very application filed for transfer of MC. No. 41 of 2008 to the Court of the learned Senior Civil Judge, Bapatla, is misconceived. In any event, as observed by the learned District Judge, Guntur, in the event the petitioner suffers an order of maintenance in both the cases, he can always move appropriate application u/s 127 (2) Cr.P.C. before the learned Magistrate for modification of the order by taking into consideration the maintenance, if any, granted in IA. No. 232 of 2009 in HMOP No. 33 of 2008.

Subject to the above observation, the Civil Revision Petition is dismissed. As a sequel, CRPMP. No. 1216 of 2012, filed by the petitioner for interim relief, is disposed of as infructuous.