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Judgment
M. Venugopal, J.—The revision petitioner/husband has filed this revision as against the order dated 04.09.2006 in M.C. No 1 of 2006
passed by the Learned District Munsif-Cum-Judicial Magistrate, Kattumannarkoil in directing the revision petitioner/husband to pay a sum of Rs.
10,000/- per month as maintenance to the first respondent/wife and also to pay a sum of Rs. 10,000/- per month as maintenance to the 2nd and
3rd respondents/minor sons.
According to the learned Counsel for the revision petitioner/husband the order of the trial Court is an illegal one and also violative of the
principles of natural justice and moreover, the first respondents/wife has approached the trial Court with unclean hands and suppressed many vital
and material facts and obtained an order, which is clearly an abuse of process of law and added further, the revision petitioner/husband is working
in Ryadh and he has been represented by his father before the trial Court and insisting the revision petitioner to appear before the trial Court and
passing an exparte order against him is an erroneous one and the first respondent/wife has filed W.P. No. 4847 of 2006 praying for the relief of
injunction restraining the revision petitioner/husband from going abroad pending investigation in a criminal case and this Court on 12.04.2006 has
directed the revision petitioner/husband to deposit a sum of Rs. 2,00,000/- (Rupees two lakhs only), before the Registrar General, High Court and
further directed him to pay a sum of Rs. 5,000/- as maintenance every month and also the husband has deposited the said sum of Rs. 2,00,000/-
(Rupees two lakhs only) and also regularly paying Rs. 5,000/- per month as maintenance to the first respondent/wife and this material fact has been
suppressed by the first respondent/wife in the maintenance case and mislead the trial Court which has resulted in a wrong order being passed
against the revision petitioner and in reality the factum of receipt of a sum of Rs. 2,00,000/- (Rupees two lakhs only) by the first respondent/wife
from the High Court has been suppressed before the trial Court and that the wife is in receipt of maintenance amount of Rs. 5,000/- per month till
date and that the writ appeal filed by the first respondent/wife as against the order passed in writ petition has been dismissed by this Court and this
being the fact situation, the subsequent order passed by the trial Court in M.C. No. 1 of 2006 dated 04.09.2006 is clearly unsustainable in law and
looking at from any angle the order of the trial Court passed in M.C. No. 1 of 2006 dated 04.09.2006 is an incorrect one and the same needs to
be set at right by this Court in revision and accordingly prays for allowing the civil revision petition in the interest of justice.
Contending contra, the learned Counsel for the respondents submits that before the trial Court the revision petitioner/husband has not appeared
and he has been set exparte in M.C. No. 1 of 2006 proceedings and the trial Court has also further observed that the revision petitioner/husband
has not filed his counter and accordingly passed an exparte order on 04.09.2006 directing the revision petitioner/husband to pay a monthly
maintenance a sum of Rs. 10,000/- to the first respondent/wife and also directed him to pay a sum o Rs. 10,000/- each to the minor sons namely
second and third respondents and the order is a reasonable and a valid one passed on merits of the case and therefore the same need not be
interfered with by this Court in furtherance of substantial cause of justice.
This Court has heard the learned Counsel appearing for the parties and noticed their respective contentions.
It is to be noted that the first respondent/wife earlier has filed W.P. No. 4847 of 2006 before this Court against the senior Immigration Officer,
Chennai-27 and five others (including the revision petitioner/husband) praying for an issuance of Writ of Mandamus directing the respondents
therein to take appropriate action to impound the passport of 6th respondent (revision petitioner) and preventing him to go abroad. It is relevant to
make a mention that this Court in W.P.M.P No. 5214 of 2006 and W.V.M.P. No. 707 of 2006 in W.P. No. 4847 of 2006 on 21.04.2006 has
inter-alia passed the following order;
...considering the facts and circumstances of the case, the criminal case is only for recovery of dowry amount paid to the vacate stay petitioner.
Now the vacate stay petitioner undertakes to deposit the said amount before the Registrar General, High Court, Madras to the credit of W.P. No.
4847 of 2006 pending disposal of C.C. No. 23 of 2006 on the file of District Munsif-Cum-Judicial Magistrate, Kattumannarkoil and also to
deposit maintenance of Rs. 5,000/- to his wife and children on or before 10th of every month in their Bank account furnished by them.
In view of the above undertaking, interim injunction granted on 21.02.2006 is vacated on condition that the vacate stay petitioner deposits a sum of
Rs. 2,00,000/- (Rupees two lakhs only) to the credit of W.P. No. 4847 of 2006 on the file of Registrar General, High Court, Madras by 22nd
April, 2006 and further deposits a sum of Rs. 5,000/- as maintenance to his wife and two children on or before 10th of every month in their bank
account, which was furnished by them. The vacate stay petitioner is directed to report before this Court on 30th April, 2007 failing which the order
stands canceled.
It appears that the revision petitioner/husband along with three others have filed Crl.O.P No. 3159 of 2006 on the file of this Court praying for
Anticipatory Bail and this Court by its order dated 11.02.2006 has been inclined to release them on anticipatory bail in the event of arrest on each
of them executing a bond for a sum of Rs. 25,000/- (Rupees twenty five thousand only) together with two sureties each for a like sum to the
satisfaction of Judicial Magistrate No. 1, Chidambaram etc.
In Crl.O.P No. 4577 of 2006 filed by the first respondent/wife before this Court, this Court has passed an order on 22.02.2006 directed the
third respondent State represented by the sub Inspector of Police, All women Police Station, Sathiyathoppu, Cuddalore District, therein to
complete the investigation and file a final report on or before 03.03.2006.
It is brought to the notice of this Court that the revision petitioner/husband filed Crl.O.P No. 8076 of 2006 and Crl. M.P No. 2118 of 2006
praying to call for the records in C.C. No. 23 of 2006 on the file of District Munsif cum Judicial Magistrate, Kattumannar Koil, Cuddalore District,
and quash the same as illegal, but the same has been dismissed as withdrawn by this Court on 31.03.2006, in view of the endorsement made to
that effect and resultantly the connected Crl.M.P. No. 2118 of 2006 has also been dismissed.
The revision petitioner/husband has filed Crl.O.P. No. 8177 of 2006 in C.C. No. 23 of 2006 on the file of District Munsif cum Judicial
Magistrate, Kattumannar Koil, Cuddalore District, praying for an anticipatory bail and this Court on 03.04.2006 has directed him to appear before
the learned District Munsif cum Judicial Magistrate, Kattumannar Koil, Cuddalore District, within a period of two weeks from the date of receipt
of a copy of this order and on his surrender and filing a petition to recall the Non-Bailable Warrant issued against him, the learned Magistrate shall
consider the same and pass orders, on merits, on the same day and ultimately dismissed the petition.
The learned Counsel for the first respondent/wife submits that till 04.09.2006 no maintenance has been paid by the revision petitioner/husband
and the M.C. No. 1 of 2006 has been filed on 09.03.2006 before the trial Court and at that time no orders of Hon''ble High Court have been in
existence. Added further, in W.A. No. 1083 of 2006 filed by the first respondent/wife it has been reported on 29.08.2006 that no maintenance
has been paid and the matter has been adjourned to 05.09.2006 as the first matter on the board. Also that in W.A. No. 1083 of 2006 an order
has been passed by this Court on 06.09.2006 referring the matter to the mediation center for exploring possibility of settlement etc.
Apart from the above, the learned Counsel for the first respondent/wife submits that the wife has received the sum of Rs. 2,00,000/- (Rupees
two lakhs only) deposited by the revision petitioner/husband and that is a separate amount and in the instant case the revision petitioner/husband
has an effective remedy as per Section 126(c) of Cr.PC to set aside the exparte order dated 04.09.2006 and as such the civil revision petition filed
by the revision petition is not maintainable in law.
This Court, opines that the word ''shall'' in Section 126(2) of Cr.PC imposes a mandatory duty upon the Court to record the evidence in the
presence of the husband. Only when for sufficient/good reasons his personal attendance is dispensed with that the presence of his pleader during
the continuance of such proceedings can be deemed to be sufficient compliance with the requirements of the section. Also the learned magistrate
may also proceed to hear the matter if he is subjectively satisfied if the husband is wilfully avoiding service or wilfully neglects to attend the Court
otherwise all the evidence must be taken down in the presence of the father/husband as the case may be and moreover, evidence can be taken in
the presence of the pleader but in the absence of respondent husband where his presence is exempted at his request. When an efficacious remedy,
for setting aside exparte being available u/s 126, of Cr.PC, it cannot be set aside in exercise of inherent power as per Section 482 of Cr.PC in the
considered opinion of this Court.
In Balan Nair Vs. Bhavani Amma Valsalamma and Others,
it is held that a person against whom an exparte order has been passed has a right to file an application u/s 126 of Cr.PC before the magistrate to
set aside the exparte order, provided the application is filed within a period of three months from the date of order. Equally the remedy of an
individual who invites an exparte order is not limited to file an application to set aside exparte order before the concerned magistrate and it is open
to him to challenge the said order by way of revision u/s 397 of Cr.PC. An aggrieved individual may also resort to Section 5 of the Limitation Act
for condoning the delay as per decision Bina 1983 Cr.L.J. 1672 (Cal). However, the period of limitation of three months from the date of order
will be attracted only when the order is made directly in compliance with the limb of the proviso to Section 126(2). In other cases the limitation will
run from the date of knowledge as per decision Sukhirthammal Vs. Subramanian,
.
This Court recalls the observation made in Khembai Vs. Kajindar,
wherein it is held as follows:
Where the respondent husband in the wife''s application for maintenance u/s 125 Cr.P.C. Did not appear on the further hearing date and the
Magistrate proceeded with the case ex parte and ordered payment of maintenance, the Magistrate not having recorded his satisfaction that the
respondent had deliberately avoided to appear the ex parte order was set aside on an application filed after more than three years. The limitation of
three months under the proviso to Section 126(2) held did not apply to the case, The State Vs. Bhimrao and Another,
As far as the present case is concerned the revision petitioner/husband as per Section 126(2) of Cr.PC has an effective and efficacious
alternative remedy to set aside the exparte order dated 04.09.2007 passed in M.C. No. 1 of 2006 on the file of learned District Munsif cum
Judicial Magistrate, Kattumannar Koil, Cuddalore District, by approaching the trial Court or even to challenge the said order passed in M.C. No.
1 of 2006 dated 04.09.2007 by filing his revision as per Section 397 Cr.PC and as such the revision petitioner/husband cannot invoke the
jurisdiction of this Court under Article 227 of the Constitution of India, which has to be sparingly exercised by this Court and moreover, this Court
does not act as a Court of fact or Court of first appeal under Article 226 and 227 of the Constitution of India and consequently the civil revision
petition is disposed of.
In fine, the civil revision petition is disposed of with a liberty being given to the civil revision petitioner/husband to approach either the trial
Court or the revisional Court as per Section 397 Cr.PC to set aside the order passed by the trial Court in M.C. No. 1 of 2006 dated 04.09.2007
if so advised and to seek appropriate remedy in the manner known to law. Considering the facts and circumstances of the case the parties are
directed to bear their own costs in this revision. Consequently, the connected M.P. No. 1 of 2008 is also closed.