Saturday 29 October 2016

Whether second application for maintenance U/S 125 of crpc is maintainable if first application is dismissed for want of prosecution?

 The learned Advocate for the petitioner has not been able
to point out any bar which disables the party from moving subsequent
application under Section 125 of the Code of Criminal Procedure after
the earlier proceedings are dismissed for want of prosecution.   The
incorporation of Section 125 of the Code of Criminal Procedure is
beneficial to the persons who are claiming maintenance from those
who   are   liable   to   maintain   them.     Looking   to   the   nature   of
proceedings, the submissions made on behalf of the petitioner cannot
be accepted and it cannot be held that the subsequent proceedings
under  Section  125 of   the  Code  of  Criminal   Procedure   will  not  be
maintainable   if   the   earlier   proceedings   are   dismissed   for   want   of
prosecution.
  IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
    CRIMINAL WRIT PETITION NO.158 OF 2015
Shri Raymond Lancy Rodrigues, 

V
 Smt. Yogita w/o Raymond Rodrigues,
   
  CORAM : Z.A. HAQ, J.
   DATED  : 25th FEBRUARY, 2016.
Citation:2016 ALLMR(CRI)4173

1. Heard   Shri   Amit   Khare,   learned   Advocate   for   the
petitioner and Shri N.M. Kolhe, learned Advocate for the respondent.
2. Rule.  Rule made returnable forthwith.
3. The   respondents   had   filed   application   bearing   No.
E­288/2009, under Section 125 of the Code of Criminal Procedure
which came to be dismissed because of non­appearance of the parties.
The respondents subsequently filed application under Section 125 of
the   Code  of  Criminal  Procedure  which is registered as  Case  No.E­
491/2013.     In   these   proceedings,   the   petitioner   had   filed   an
application (Exhibit No.14) contending that the application filed by the
respondents under Section 125 of the Code of Criminal Procedure was
not maintainable in view of the dismissal of the earlier application.
The Family Court has rejected the application (Exhibit No.14) filed by
the   petitioner   by   the   impugned   order   and   the   petitioner   being
aggrieved by it, has filed this writ petition.

4. The learned Advocate for the petitioner has submitted that
in the earlier proceedings, the matter was amicably worked out in
mediation and the compromise terms were placed on the record and in
view of the compromise, the application was not prosecuted further by
the respondents and it came to be dismissed for want of prosecution.
It is submitted that in these facts, the second application filed by the
respondents is not maintainable.  Reliance is placed on the judgment
given by the Division Bench of Andhra Pradesh High Court in the case
of  C.Subramanyam   vs.   C.   Sumathi   and   another  reported   in    I
(2004) DMC 456.  It is submitted that the Family Court has committed
an error in not properly adverting to the issue and the impugned order
is unsustainable and it be set aside and the proceedings filed by the
respondents be quashed.
5. The learned Advocate for the respondents has supported
the impugned order.
6. After   hearing   the   learned   Advocates   for   the   respective
parties, I find that the judgment given in the case of C. Subramanyam
vs. C. Sumathi and another  does not support the petitioner.   The
issue which fell for consideration in the above referred case was as to

whether the Magistrate has power to restore the proceedings dismissed
for want of prosecution.
7. The learned Advocate for the petitioner has not been able
to point out any bar which disables the party from moving subsequent
application under Section 125 of the Code of Criminal Procedure after
the earlier proceedings are dismissed for want of prosecution.   The
incorporation of Section 125 of the Code of Criminal Procedure is
beneficial to the persons who are claiming maintenance from those
who   are   liable   to   maintain   them.     Looking   to   the   nature   of
proceedings, the submissions made on behalf of the petitioner cannot
be accepted and it cannot be held that the subsequent proceedings
under  Section  125 of   the  Code  of  Criminal   Procedure   will  not  be
maintainable   if   the   earlier   proceedings   are   dismissed   for   want   of
prosecution.
8. The learned trial Judge has properly dealt with all the
relevant   aspects   and   legal   position   and   has   rightly   rejected   the
application filed by the petitioner.  I see no reason to interfere with the
impugned   order.     The   writ   petition   is   dismissed   with   costs   of
Rs.5,000/­ to be paid by the petitioner to the respondents within one

month.
By the order dated 21­08­2015, this Court directed the
petitioner to deposit Rs.50,000/­ to show bonafides that the petitioner
wants to amicably settle the matter through mediation.   Pursuant to
the above order, the petitioner deposited Rs.50,000/­ and by the order
dated   10­12­2015   the   respondents   are   permitted   to   withdraw   the
amount.   Shri Amit Khare, learned Advocate for the petitioner has
submitted that till date there is no judicial order imposing the liability
of payment of maintenance on the petitioner.  The submission made on
behalf of the petitioner is proper and justified.  It is directed that the
amount of Rs.5,000/­ to be paid by the petitioner to the respondents
shall be adjusted from the amount of Rs.50,000/­ withdrawn by the
respondents.   The   Family   Court   shall   pass   appropriate   orders   at
appropriate stage in respect of the balance amount of Rs.45,000/­. 
                        
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