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Sunday, January 6, 2013

Section 125 of the Code of Criminal Procedure = As the heading of the chapter itself indicates, these provisions relate only to order for maintenance in favour of wives, children and parents and it does not encompass in it's sweep an order for maintenance in favour of the husband from the wife.


IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 07.06.2012
CORAM
THE  HONOURABLE MR. JUSTICE S.NAGAMUTHU
Crl.O.P.No.10466 of 2012
B.Clement
... Petitioner
Vs.

Mrs.Mcthel Thanga Annam @ P.Mcthel
   ... Respondent

Petition filed under Section 482 of the Code of Criminal Procedure praying to transfer the case in M.C.No.3 of 2011 pending on the file of the learned Chief Judicial Magistrate, Dharmapuri to be tried with M.C.No.21 of 2011 pending on the file of the Judicial Magistrate, Ambattur.

For petitioner : Mr.V.Lakshmi Narayanan

For respondent     : Mr.K.P.Anantha Krishna
 Government Advocate
 [Criminal Side]
ORDER

The Provision for order for maintenance of wives, children and parents envisaged in chapter X of the Code of Criminal Procedure serves a social purpose.
 It is a measure of social justice and specially enacted to protect women, children and parents and it falls within the constitutional sweep of Article 15(3) of the Constitution of India reinforced by Article 39 of the Constitution of India. 
The intention of the legislature is to cast an obligation upon a person, who neglects or refuses to maintain his wife or children or parents.  
As has been held by the Hon'ble Supreme Court, the provisions of this Chapter constitute a complete code in itself and the proceedings referred to thereunder are basically of civil nature, that are certainly not punitive and that the rights of the parties have got to be determined with reference to the object which the proceedings are expected  to serve [vide Nandlal Mishra v. Kanhaiya Lal Misra, AIR 1960 SC 882]. 
 As the heading of the chapter itself indicates, these provisions relate only to order for maintenance in favour of wives, children and parents and it does not encompass in it's  sweep an  order for maintenance in favour of the husband from the wife. To read and understand the scope of Section 125 of the Code of Criminal Procedure is not a tortuous task. The words are plain and the intention is explicit.
The legislature would not have intended to clothe the husband with the right to claim maintenance from his wife under this Chapter. Though under some personal laws, the husband may be entitled to claim maintenance from the wife, it is certainly not possible under Section 125 of the Code of Criminal Procedure.

2. With this background, let us go into the facts of the instant case. The petitioner, the husband of the respondent herein, filed a case in M.C.No.3 of 011 on the file of the learned Chief Judicial Magistrate, Dharmapuri, claiming monthly maintenance of Rs.10,000/- from the respondent/wife. Taking the case on file, the learned Chief Judicial Magistrate  summoned the respondent. The respondent herein in turn filed a case in M.C.No.21 of 2011 before the learned Judicial Magistrate, Ambattur, Tiruvallur District, under the provisions of The Protection of Women from the Domestic Violence Act, 2005 wherein she has prayed for various reliefs including maintenance from her husband, the petitioner herein.  In those circumstances, the petitioner has approached this court with this original petition seeking  transfer of the case in M.C.No.3 of 2011 from the file of the learned Chief Judicial Magistrate, Dharmapuri, to the file of the learned Judicial Magistrate, Ambattur so as to be tried along with M.C.No.21 of 2011.

3. When this original petition came up for hearing on 04.06.2012, this court raised a fundamental question to the learned counsel for the petitioner  as to how  the case in M.C.3 of 2011 itself is maintainable under Section 125 of the Code of Criminal Procedure. The learned counsel took time to clarify the legal position. On 07.06.2012, this petition case was again taken up for hearing. When the learned counsel was again invited to explain to the court as to how the case in M.C.No.3 of 2011 itself is maintainable, the learned counsel has nothing in store to explain. He, however, offered to withdraw the present original petition.  But, this court pointed out that even if the present petition for transfer is allowed to be withdrawn, this court would not stop without quashing the proceedings in M.C.No.3 of 2011 suo motu by exercising the power saved under Section 482 of Cr.P.C.  Thereafter, the learned counsel for the petitioner filed a memo dated 07.06.2012 wherein he has stated in paragraph 3 and 4 as follows:-
"3. The petitioner further submits that now he understands that the 125 Cr.P.C. for maintenance cannot be invoked by the petitioner against wife. In the above circumstances the petitioner begs to file this Memo.
4.  Hence, this Hon'ble Court may be pleased to quash the proceedings in M.C.No.3 of 2011 on the file of the C.J.M. Dharmapuri and thus render justice."

4. In view of the legal position that the maintenance case filed by the husband against the wife is not maintainable under Chapter X of the Code of Criminal Procedure  and in view of the fact that the learned counsel for the petitioner himself has filed a memo expressing no objection for this court to quash the proceedings in M.C.No.3 of 2011, while dismissing the present petition for transfer, this court is inclined to proceed to quash the very case in M.C.No.3 of 2011 on the file of the learned Chief Judicial Magistrate, Dharmapuri.

5. In the result, the criminal original petition is dismissed, however, the case in M.C.No.3 of 2011 on the file of the learned Chief Judicial Magistrate, Dharmapuri, is hereby quashed. 



Index : yes / no                          07.06.2012
Internet : yes / no          

kmk

To
1.The Chief Judicial Magistrate, Dharmapuri.
2.The Judicial Magistrate, Ambattur.


S.NAGAMUTHU. J.,


kmk
















Crl.O.P.No.10466 of 2012













07.06.2012

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