Allowed

Rajalakshni v. Kuganpandian

Madras HC22 Jan 2014CRL RC(MD)/650/2013

Case brief

AI extract

What is this about?

This revision petition challenged an order dismissing a maintenance application under Section 125 Cr.P.C. for default. The High Court held that Courts have implied powers to restore dismissed applications to serve social justice, especially in welfare legislation. The impugned order was set aside, and the main petition was ordered to be disposed of expeditiously.

What did the court decide?

Impugned order setting aside restoration application set aside; main maintenance petition to be disposed of expeditiously by Magistrate.

Rajalakshni Vs Kuganpandian — Maintenance and Alimony | Madras HC (2014)

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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

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DATED: 22.01.2014

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THE HON'BLE MRS.JUSTICE ARUNA JAGADEESAN

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CRL.R.C.(MD) No.650 of 2013

1.Rajalakshmi

2.Bavani

3.Leeladevishri

... Revision Petitioners/Petitioners

Vs.

1.Kuganpandian

2.A.Janaki

... Respondents/Respondents

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Prayer: Criminal revision petition filed under Section 397 and 401 of Criminal Procedure Code to call for the records pertaining to the to the final orders in Cr.M.P.No.3315 of 2013 in M.C.No.13 of 2012 dated 5.7.2013 on the file of learned Judicial Magistrate NO.1, Kovilpatti to set aside the same by allowing the criminal revision petition and pass such further or other orders as this Court may deem fit and proper in the circumstances of the case.

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For Petitioner : Mr.Prasanna Rajadurai for Mr.S.Muthalraj For Respondents : No appearance

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O R D E R

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This revision is preferred against the order passed by the learned Judicial Magistrate No.1, Kovilpatti in Cr.M.P.No.3315 of 2013 in M.C.No.13 of 2012 dated 05.07.2013 rejecting the petition filed by the petitioner/wife to restore the petition in M.C.No.13 of 2012 which was dismissed for default.

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The petitioner on her behalf and on behalf of her children filed maintenance petition in M.C.No.13 of 2012 claiming maintenance against the respondents and the same was dismissed for default since neither the petitioner nor her counsel appeared before the court on the date when it was posted for trial. The petitioners filed an application to set aside the order of dismissal and to restore the petition in M.C.No.13 of 2012 and the same was dismissed by the learned Judicial Magistrate No.1, Kovilpatti on the ground that there is no provision under Section 125 of Code of Criminal Procedure for restoration of petition which was dismissed for default and further even under the Protection of Women from Domestic Violence Act there is no expression or implied provision for restoring the petition which was dismissed for default. Aggrieved against the said order passed by the learned Judicial Magistrate, the present revision has been filed.

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Mr.Prasanna Rajadurai, learned counsel appearing for the https://hcservices.ecourts.gov.in/hcservices/ petitioner submitted that Section 125 of the Code being a social justice legislation, Courts have to adopt purposive interpretation to the same and it was within the powers of the Magistrate to restore the

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application which has been dismissed for default. The learned counsel for the petitioner further contended that taking into consideration the social welfare legislation which is aimed at achieving social justice, equality and dignity of individual by empowering destitute wife or hapless children or parents, the court had power to restore the application for maintenance that was dismissed for default by exercising inherent power. The learned counsel drew the attention of this Court to the latest decision of the Hon'ble Supreme Court reported in 2013 (6) CTC 86 in Badshah Vs. Sou. Urmila Badshah Godse & Another.

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The learned counsel pointed out that on 02.05.2013 the petitioners appeared in person before the court and non- availability of counsel was also intimated, but however the learned Magistrate dismissed the petition for default. He would submit that the main petition claiming maintenance against the respondents was not decided on merits and hence, the restoration petition ought to have been allowed by the learned Judicial Magistrate.

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The said application was resisted by the respondents on the ground that reasons indicated for non appearance are not factually correct. The main case in M.C.NO.13 of 2012 was adjourned to 13.03.2013, 26.03.2013 and 28.03.2013 for trial but the petitioner has never come forward to proceed with the case and on the final date of hearing i.e on 01.04.2013 neither the petitioner nor the counsel were present and therefore, the court below was constrained to dismiss the petition for default on 02.05.2013 after giving sufficient opportunity to the petitioner. The learned counsel for the respondent further submitted that the learned Magistrate had no power to restore the application and therefore, rejection has been rightly done.

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Heard the learned counsel appearing for the parties and perused the impugned order passed by the learned Magistrate.

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At the outset, it has to be pointed out that there is no specific power as well for dismissal of an application for non prosecution under Section 125 of Code of Criminal Procedure. Obviously, the court in exercise of its implied power can direct dismissal for non prosecution. It is a firmly established rule that an express grant of statutory power carries with it by necessary implication the authority to use all reasonable means to make such grant effective. It is the duty of the Magistrate/Judge to apply the laws not only to what appears to be regulated by their express dispositions, but to all the cases where a just application of them may be made, and which appear to be comprehended either within the consequences that may be gathered from it. Notwithstanding absence of inherent powers, restoration can be directed by exercise of implied powers. Therefore, it stands to reason that the court in exercise of ancillary and incidental powers can direct restoration even though there is no specific provision in the Code. The situation may be viewed in the background of Section 126(2) of the Code which permits a husband https://hcservices.ecourts.gov.in/hcservices/ to seek setting aside of an ex parte order against him.

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The Hon'ble Supreme Court in 2013(6)CTC 86 cited supra has

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held in paragraph No.17 as below:

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Thirdly, in such cases, purposive interpretation needs to be given to the provisions of Section 125, Cr.P.C While dealing with the application of destitute wife or hapless children or parents under this provision, the court is dealing with the marginalized sections of the Society. The purpose is to achieve “social justice” which is the Constitutional vision, enshrined in the preamble of the Constitution of India. Preamble to the Constitution of India clearly signals that we have chosen the democratic path under rule of law to achieve the goal of securing for all its citizens, justice, liberty, equality and fraternity. It specifically highlights achieving their social justice. Therefore, it becomes the bounden duty of the courts to advance the cause of the social justice. While giving interpretation to a particular provision, the Court is supposed to bridge the gap between the law and society.

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The Hon'ble Supreme Court has observed that while dealing with cases under Section 125 of Code of Criminal Procedure, drift in the approach from “adversarial” litigation to social context adjudication is the need of the hour.

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Keeping in view the banign provisions in Section 125 of the Code enacted to ameliorate economic condition of neglected wife and discarded divorcees and to save enumerated persons from fagrancy and destitution, Welfare laws must be so read as to be effective delivery system of salutary objects sought to be served by the legislature. When beneficiaries are weaker sections like destitute women spirit of Article 15(3) of the Constitution of India must belight meaning of Section 125 and its sister clauses and provisions must receive compassionate expansion of sense that the words used permit. Similar sentiment was expressed by the Hon'ble Apex Court in Bai Tehira Vs. Ali Hussain Fissalli Chothia, in AIR 1979 SC 362.

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Coming to the factual backgrounds, I am of the view that the reason advanced by the petitioner to justify her non appearance does not appear to be so absurd and unreasonable as to warrant outright rejection. A party does not gain by not attending the Court on the date fixed. Unless a callous and negligent attitude is borne out from record, a liberal attitude has to be adopted when a party shows cause for non-appearance. A rigidistic approach while dealing with cause of non-appearance in a case for maintenance under Section 125 of the Code is likely to frustrate the very purpose for which the provision was enacted. True it is, the court has to be satisfied about justifiable reason for non appearance. But such matters cannot be weighed in golden scales. On the scales of justice and equity, the balance lean heavily in favour of the revision petitioners. Therefore, the order passed by https://hcservices.ecourts.gov.in/hcservices/ the learned Judicial Magistrate No.1, Kovilpatti rejecting the application for restoration is liable to be set aside.

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Since the main petition has been filed claiming maintenance I am of the view that the said petition has to be disposed of expeditiously. Therefore, I direct the parties to appear before the learned Judicial Magistrate No.1, Kovilpatti on 10.02.2013 and the learned Magistrate shall dispose of the proceedings as expeditiously as practicable preferably within a period of three months from the date of receipt of copy of this order. The learned Magistrate is directed to issue notice to both parties.

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In the result, this revision is allowed.

Sd/-

Assistant Registrar

/True Copy/

Sub – Assistant Registrar

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To,

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The Judicial Magistrate NO.1, Kovilpatti.

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The Chief Judicial Magistrate, Tuticorin district.

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The Additional Public Prosecutor, Madurai Bench of Madras High Court, Maduai.

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Crl.R.C.(MD)No.650 of 2013

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22.01.2014

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gdr 30.01.2014 4 p/4C

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https://hcservices.ecourts.gov.in/hcservices/

Rajalakshni v. Kuganpandian

Case brief

What is this about?

What did the court decide?

Rajalakshni v. Kuganpandian

Case brief

What is this about?

What did the court decide?

What the court decided

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