C. Krishnamurthy vs Nagadevi

K.N. Phaneendra, J.—This petition is filed for quashing of the impugned order dated 29.10.2013 passed in Crl. Misc. No. 125/2013 by the learned Prl. Judge, Family Court, Bellary dismissing the application seeking modification of the earlier order dated 10.10.2013.

It is seen from the records that the respondents herein have obtained an order of interim maintenance of Rs. 500/- each to the respondents. On 18.12.2009. Thereafter, it appears the petitioner was required to make payment of the entire arrears. As per the admission of both counsels, during the pendency of the proceedings, an application was filed u/s 125(3) of Cr.P.C. and a direction was issued to the petitioner to pay the entire arrears of maintenance. Order sheet also discloses that on 12.04.2010, a petition was filed u/s 125(3) of Cr.P.C. in the same proceedings in M.C. No. 1/2009. On 08.07.2011, the trial Court passed an order on I.A. No. III directing the respondent to pay the entire maintenance as already ordered, dismissing I.A. No. 3.

The learned counsel for the petitioner strenuously contends that during the pendency of the proceedings he has deposited 50% of arrears of maintenance and admitted that he has to deposit the remaining amount of 50% by the trial Court. When the things stood thus it appears that, the petitioner has filed an application u/s 311 of Cr.P.C., seeking permission to cross-examine the respondents on merits. In fact, the trial Court has allowed the said application 10.10.2013 and directed the petitioner to deposit the entire arrears of amount due till 10.10.2013 within seven days and then posted the case for cross-examination on 22.10.2013. It appears that within seven days the petitioner has not deposited any amount. Therefore, the cross-examination of the respondents did not take place. However, the order dated 10.10.2013 has not been challenged before the revisional Court or before this Court, the same appears to have been reached finality. Subsequently, the petitioner has filed an application u/s 127 of Cr.P.C. for modification of the order passed by the Court on 10.10.2013. In the said application, the petitioner has contended that the petitioner is not entitled to recover the entire maintenance as on 10.10.2013 as ordered by the Court, in view of Section 125(3) i.e. she ought to have filed a separate application for recovery of maintenance. The learned counsel for the respondents herein have contested the said application and brought to the notice of this Court, the decisions of the Hon'ble Supreme Court in the case of Dareppa Vs. Smt. Renuka reported in 2004(4) KCCR SN 151, and in the case of Ravindra Kumar Vs. Renuka and Another, and in the case of Shantha @ Ushadevi and Another Vs. B.G. Shivananjappa, wherein Court held that

Criminal procedure Code, 1973, Section 125(3), first proviso-Order awarding maintenance-Failure to pay amount due under-Application for issuance of warrant for levy of amount of arrears of maintenance due-Limitation-Where application already filed within period of one year from date of award was pending, another application for arrears for subsequent period, filed during pendency of first application cannot be considered as fresh application to attract bar of limitation-Liability to pay maintenance is continuous liability.

Therefore relying upon the said three decisions, the trial Court has refused to interfere with the order passed on 10.10.2013. Hence, the petitioner is before this Court.

The order dated 10.10.2013 is not challenged before this Court. Instead of challenging the same, the petitioner has filed an application for modification of the order before this Court. However, in my opinion, the order dated 10.10.2013 in permitting the petitioner to cross-examine the witness subject to the condition that he has to pay or deposit the entire arrears of maintenance due within 7 days is not proper. In such an order is allowed to continue then the Court has proceed with the matter and has pass an exparte order, granting maintenance on merits also. The order passed by the learned Magistrate on 10.10.2013, though he has no jurisdiction to modify the same u/s 127 of Cr.P.C., in my opinion, this Court has the power to modify the said order, if genuine reasons are shown. In this regard it is worth refer to Section 125(3) of the Act which reads as follows:

If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for ever breach of the order, issue a warrant for levying the amount due in the manner provided for levying fines, and may sentence such person, for the whole, or any part of each month's [allowance for the maintenance or the interim maintenance and expenses of Proceeding, as the case may be,] remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made:

Provided that no warrant shall be issued for the recovery of any amount due under this section unless application be made to the Court to levy such amount within a period of one year from the date on which it became due:

Provided further that if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under the section notwithstanding such offer, if he is satisfied that there is just ground for so doing.

The decisions cited by the learned Magistrate in the above said order has ample force and there is no need for fresh application recovery of maintenance (arrears during pendency) when one application already pending and also the main petition is pending. So far as this legal aspect is concerned, there is absolutely no grumble between both parties. The question is for non-payment of arrears of maintenance whether it would debar a party from proceeding with the evidence. In my opinion, such orders could not have been passed by the learned Magistrate, when he has got power to enforce the order passed, u/s 125(3) of Cr.P.C. The remedy available to the parties under the statute have to be enforced and not the remedy which is not available under Cr.P.C. When the learned Magistrate has passed such a conditional order, denial of the valuable right to cross-examine the petitioner is not proper.

Having come to such conclusion the proceedings before the trial Court should not be staled for uncertain period. The petitioner has to co-operate and assist the Court in disposing of the case on merits, he cannot have indefinite time to cross-examine the witnesses on behalf of the respondents herein. The order sheet also discloses that opportunities have been given to the petitioner to cross-examine the witnesses, but, ultimately as he could not pay the entire arrears of maintenance he was presented from cross-examining the witnesses. Under these circumstances, if this Court directs the petitioner to cross-examine the respondents on the date on which he appears before the Court, after receipt of copy this order he can proceed with the matter. The trial Court is directed to permit him to cross-examine the witness. This Court is directing the petitioner to pay the said amount within six weeks from the date of this order, otherwise the Magistrate has to pass appropriate orders u/s 125(3) of Cr.P.C., With these observations, I pass the following;

ORDER

The petition is partly allowed.

The order dated 29.10.2013 in Crl. Misc. 125/2013 passed by the learned Magistrate is hereby set aside.

The order dated 10.10.2013 passed by the learned Magistrate is hereby modified permitting the petitioner to cross-examine. The witnesses of the other side without any delay unless time granted by the trial Court for valid and genuine reasons

The trial Court has to expedite the trial and dispose of the same within a span of three months from the date of receipt of the copy of this order.

The petitioner is directed to co-operate with the proceedings of the Court in cross-examining the respondents as well as leading the defence evidence.