Nallan vs Palaniammal

S.M. Sidickk, J.—This is a Criminal Revision petition filed u/s 401 read with Sec. 397 of Cr.P.C. to set aside the order passed by the

learned Judicial Magistrate at Musiri in Crl.M.P.No.2128/97 in MC.No. 19/96 dated 22.12.1997.

The Respondent herein is the wife of the petitioner herein, The Respondent/wife filed an application u/s 125 of Cr.P.C. against the petitioner to

grant monthly maintenance at the rate of Rs.500/- and the petitioner/husband has also filed a counter statement before the Judicial Magistrate at

Musiri in M.C.No. 19/96. After examination of some witnesses on behalf of the Respondent/wife, an application was filed u/s 125 of Cr.P.C. to

amend the maintenance petition by making further pleadings in the main petition by the wife by referring to a deed date 23.6.1996 whereunder

both the parties have come to some agreement or arrangement for the division of the properties and that amendment application was taken on file

by the learned Judicial Magistrate at Musiri in Crl.M.P.No.2128/97, and the petitioner/husband did not file any counter statement controverting the

allegations made in the affidavit of the Respondent/wife set out in her amendment petition in Crl.M.P.No.2128/97.

After hearing both the parties the learned Judicial Magistrate at Musiri allowed the amendment application in Crl.M.P.No.2128/97 on

22.12.1997 thereby permitting the wife to incorporate further pleadings with reference to the maintenance claim petition in M.C.No. 19/96.

Questioning the order of the learned Judicial Magistrate dated 22.12.1997 in Crl.M.P.No.2128/97, the present Revision petition is filed by the

petitioner/husband on the following grounds:- Even in the legal notice issued prior to the filing of the maintenance petition in M.C.No.19/96, the

Respondent/wife has not stated anything about the alleged partition deed dated 23.6.1996 for which now she has sought for by way of amendment

to make additional set of pleadings in the petition. Only after examining four witnesses and marking three documents, on her side the

Respondent/wife came to her senses that she has not stated about the fact that a panchayat was held on 23.6.1996 at which the partition deed was

executed between the petitioner/husband and the Respondent/wife. The Respondent/wife has adopted this course because she was not able to

prove her case for maintenance. These facts would clearly show that the alleged panchayat and partition deed dated 23.6.1996 is a concocted one

for the purpose of maintenance case and these facts would establish that the deed dated 23.6.1996 is a fabricated one. There is no provision for

amendment u/s 125 of Cr.P.C. since Section 126(2) of Cr.P.C. enables the court to conduct the trial summarily.

Thus two objections are raised on behalf of the Revision petitioner/husband to set aside the order passed by the learned Magistrate in the

amendment petition in Crl.M.P. N6.2128/97. One is that there is no provision for amendment in Section 125 of Cr.P.C. The second objection is

that the partition deed dated 23.6.1996 is a concocted and fabricated document because it was not referred to earlier in the notice issued by the

Respondent/wife prior to the filing of the maintenance petition. So far as the second objection is concerned, it is a question of fact and it can only

be decided by the learned Magistrate on an appraisal and appreciation of evidence that has to be let in the maintenance case in M.C.Nol9/96.

Such question of fact cannot be gone into by this Revision Court u/s 401 and 397 of Cr.P.C. So the second ground urged by the

petitioner/husband is not a valid one to set aside the order passed by the learned Magistrate in the amendment petition in Crl.M.P.No.2128/97.

So far as the first objection of the Revision petitioner is concerned, according to him the trial in the maintenance case is a summary procedure.

That is not correct because Section 126 (2) of Cr.P.C. says that all evidence in the proceedings u/s 125 of Cr.P.C. shall be recorded in the

manner prescribed for summons case. So it-is a summons case and not a summary case. Whatever it may be, the objection of me Revision

petitioner is that mere is no provision in Section 125 of Cr.P.C. to amend the maintenance petition. This objection is also untenable for the

following reasons. There is no provision in Section 125 of Cr.P.C. to grant interim maintenance. Even then the Supreme Court in the decision

reported in Savitri Rawat Vs. Govind Singh Rawat, held that interim maintenance pending final disposal of the maintenance proceedings u/s 125 of

Cr.P.C. can be granted and such an order may also be made in an appropriate case ex-parte.

Similarly there is no provision in Section 125 of Cr.P.C. to set aside the ex parte order of maintenance passed against the husband, but mere is

a proviso to Section 126 of Cr.P.C. to set aside export order. The Supreme Court in the decision reported in Mohammed Nairn Sidiqui v.

Sulthana Kattoon 1983 SCC (Cri.)50 laid down mat where in a case u/s 125 Cr.P.C. the matter was de- cided against the husband exparte but

the husband was not served with notice, than the exparte order can be set aside.

A similar situation arose in another case though not an identical one with the present case u/s 125 of Cr.P.C. That was a case where I have dealt

with the question of the substitution of authorised representative of a Company, who filed a private complaint, and that was the decision reported in

Raasi Cement Limited v. Prithvirqj 1997 Cri. L.J.4631 wherein at page 4633 and in para 5 of my Judgment I have''stated as follows:

......According to the learned Magistrate,there is no specific provision of law under which the substitution petition can be filed and allowed......In

the interest of justice, such applications like the petition to accept the sureties, the petition for the return of the documents by the sureties and the

petition for advancement of the hearing of an application are being entertained by the Magistrates Court, it is also reasonable to entertain an

application for substitution of a representative in respect of a private company to prosecute its complaint in the absence of specific provision of

law. This view is in consonance with the decision of the Supreme Court reported in K.M. Mathew Vs. State of Kerala and another, wherein it was

held that no specific provision of law is required for a Magistrate to drop the proceedings or to rescind the process in a summon case and it is the

judicial discretion of the Magistrate to allow such proceedings......

Thus it follows from the above decisions that even though there is no specific provision of law but in the interest of justice and by exercising the

discretionary power, the Magistrate can even allow an amendment petition in the maintenance petition filed u/s 125 of Cr.P.C. setting out some

more pleadings. The question as to whether further pleadings by way of amendment are true or not true, is a matter for consideration and appraisal

of evidence by the trial Magistrate and not by the Revisional Court like mis Court while exercising the powers of Revision u/s 401 and 397 of

Cr.P.C. Therefore I find that there is no illegality or impropriety in the order passed by the learned Judicial Magistrate at Musiri in the amendment

petition in Crl.M.P.No.2128/97 in M.C.No. 19/96 on 22.12.1997, and so the order dated 22.12.1997 cannot be set aside. However the learned

Magistrate can permit the petitioner/husband to file an additional counter statement in view of the amendment that will be carried out in the main

maintenance petition. Hence I hold that this Revision Petition has to be dismissed, and consequently I answer this point as against the

petitioner/husband.

In the result this Crl.Revision petition No. 175/98 is dismissed. The order of the learned Judicial Magistrate at Musiri in Crl.M.P.No.2128/97

in M.C.No. 19/96 dated 22.12.1997 is confirmed. However the learned Judicial Magistrate at Musiri can give an opportunity to the Revision

Petitioner/husband to file an additional counter statement in view of further pleadings to be made by way of amendment in the main maintenance

petition filed u/s 125 of Cr.P.C. and dispose of the case in accordance with law.

Consequently the stay petition is in Crl.M.P.No. 1317 of 1998 is dismissed as unnecessary.