Neelesh Sahu vs Kalyani Sahu

The petitioner has filed this Criminal Revision under Section 397 read with Section 401 of the Cr.P.C. for setting aside the impugned order dated 30.01.2019 passed by the learned Principal Judge, Family Court Jabalpur, District-Jabalpur in MJC No.20/2017 whereby the learned Family Court has amended his previous order dated 29.12.2017 by the order dated 30.01.2019.

Brief facts of the case are that respondent No.1 is wife of the petitioner/non-applicant and respondent No.2 is son of the petitioner/non-applicant. Marriage of respondent No.1 and petitioner/non-applicant was solemnized on 15.02.2013 as per Hindu Rights and Rituals. Petitioner/non-applicant has demanded dowry and due to non-fulfillment of the same, he tortured and humiliated to the respondent No.1. Therefore, she left the house of the present petitioner/non-applicant on 01.09.2015 and since then respondent No.1/wife and respondent No.2/son are living at her maternal house. Respondents have no means of her livelihood while the petitioner/non-applicant earns Rs.14,000/- per month. Therefore, respondent No.1/wife has filed a petition under Section 125 of the Cr.P.C. before the Family Court for granting maintenance amount as well as interim maintenance amount and learned Family Court has allowed the interim maintenance application and directed the petitioner/non-applicant to pay the interim maintenance amount of Rs.3000/- to the respondent No.1/wife and Rs.2000/- to the respondent No.2/son.

Learned counsel for the petitioner/non-applicant submits that learned Family Court has recalled his previous order whereas learned Family Judge has no jurisdiction to recall his previous order. He also submits that he failed an application for the same, but learned Family Court has dismissed his application. In support of his contention he relied upon the judgment of the Gwalior Bench of this Court in the case of Laxminarayan @ Billa Vs. Raj Kumar and others reported in 2013 131 AIC 630. Therefore, learned counsel for the petitioner/non-applicant prays for allowing the said petition and setting-aside the impugned order dated 30.01.2019.

Learned counsel for the respondents submits that respondent No.1 is wife of the petitioner/non-applicant and respondent No.2 is son of petitioner/non-applicant. Respondents are living separately from the petitioner/non-applicant and respondent No.1 has filed an application under Section 125 of the Cr.P.C. as well as interim maintenance before the Family Court. Learned Family Court has allowed the interim application in M.J.C. No.20/2017 and directed the petitioner/non-applicant to pay Rs.3000/- to the respondent No.1 and Rs.2000/- to the respondent No.2, but in this order due to clerical mistake monthly word has not been mentioned by the learned Family Court. Therefore, on 30.01.2019, learned Family Court has considered his previous order and it is held that at the time of passing the interim order, he could not wrote some specific words i.e. monthly and date of order. So, learned Family Court amended his previous order due to clerical mistake. Therefore, he prays for dismissal the said petition filed by the petitioner/non-applicant.

Heard learned counsel for the both the parties and perused the record. It is admitted fact that respondent No.-1 Kalyani Sahu is wife of the petitioner/non-applicant and respondent No.2- Shivang Sahu is son of the petitioner/non-applicant. It is also admitted that the respondents are living separately from the applicant.

From perusal of impugned order dated 30.01.2019 it reveals that learned Family Court did not recall his previous order dated 29.12.2017 whereas he amended his order due to clerical mistake because due to clerical mistake he could not mentioned the words as "monthly and date of order".

Learned Family Court has allowed the interim application in M.J.C.No.20/2017 and directed the petitioner/non-applicant to pay Rs.3000/-t o the respondent No.1 and Rs.2000/- to the respondent No.2, but in this order due to clerical mistake monthly word has not been mentioned by the learned Family Court. Therefore, on 30.01.2019, learned Family Court has considered his previous order and it is held that at the time of passing the interim order, he could not wrote some specific words i.e. monthly and date of order. So, this amendment is some part of this order not recalling of the previous order. It is law that learned trial Court has powered to amend his previous order if clerical mistake is found and in the interest of justice, this clerical mistake is bonoafide.

On careful reading of Section 362 of the Cr.P.C. it is provided that :-

"Section 362 in The Code Of Criminal Procedure, 1973 362. Court not to after judgement. Save as otherwise provided by this Code or by any other law for the time being in force, no Court, when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error."

In view of the aforesaid Section 362 of the Cr.P.C., it is manifest that learned trial Court has no power to alter or review the same except to correct a clerical or arithmetical error. In the present case, it is clearly reflect that from the impugned order dated 30.01.2019 learned Family Court has only amended on the part of his previous order which is shown as clerical mistake. So, there is no irregularity and perversity found in the order of the learned Family Court, Jabalpur.

In view of the aforesaid discussions, it cannot be said that the learned Family Court, Jabalpur had erred in passing the impugned order dated 30.01.2019. Therefore, considering the circumstances of the case, it would not be proper to invoke the jurisdiction under Section 397 read with Section 401 of the Cr.P.C. by this Court in the present case.

Accordingly, this revision stands disposed of.