K SUBAIR Vs. ASMA

JUDGEMENT

(1.) THIS Original Petition (Family Court), under Article 227 of the Constitution of India, is filed by the respondent in C.M.P.No.748/10 in M.C.141/2008 on the file of the Family Court, Kasaragod. Respondents 1 to 4 herein were the petitioners in that C.M.P.

(2.) THE facts of the case are briefly as follows : Respondents 1 to 4 herein, being the wife and minor children of the petitioner, were the petitioners in M.C.141/08 on the file of the Family Court, Kasaragod. The said proceedings were initiated by them against the petitioner herein, claiming maintenance under Section 125 of the Criminal Procedure Code, 1973 (for short, 'Cr.P.C.'). In that M.C., the petitioners therein claimed Rs.4,000/- per month, as maintenance. The respondent in the M.C. filed counter. PW1 and RW1 were examined and Ext.A1 was marked before the Family Court. The respondent offered to pay maintenance at the rate of Rs.1,500/- per month each to the first and 4th petitioners. The Family Court observed that the second and third petitioners are with the respondent and they are looked after by him. Accepting the offer of the respondent, the Family Court allowed the M.C. in part and the respondent was directed to provide maintenance to the 1st and 4th petitioners at the rate of Rs.1,500/- per month each from the date of the order, i.e., 28.2.2009. Against the said order, the petitioners 1 and 4 filed R.P.(FC) No.263/09 before this Court and this Court, as per judgment dated 18.3.2010 set aside the order and remitted the matter back to the Family Court for fresh consideration, after affording opportunity to both sides to adduce documentary as well as oral evidence in support of their respective contentions and to dispose of the matter in accordance with law. As an interim measure, this Court directed the respondent to continue to pay the amount awarded by the Family Court as maintenance, at the rate of Rs.1,500/- per month each to the 1st and 4th petitioners, till a final decision is taken. After the remand, the petitioners filed C.M.P.748/10 before the Family Court, under Order VI Rule 17 of the Civil Procedure Code to amend the M.C. petition. The amendment sought for was to enhance the claim of maintenance, from Rs.4,000/- to Rs.20,000/- per month. That petition was allowed by the Family Court, as per order dated 13.10.2010. It is stated in the order that the fact that the enhanced claim was not put forward even in the R.P.(FC) before this Court, is not a ground to reject the prayer. It was also stated in the order that quoting of the provision as Order 6 Rule 17 CPC in a proceeding under Section 125(1) Cr.P.C. is not a ground to refuse the relief. Since the parties need not be driven to another round of litigation, in the interests of justice, that petition was allowed. Against that order, the respondent in the C.M.P. filed this O.P.(FC).

(3.) THE learned counsel for the petitioner submitted that Order 6 Rule 17 of the Civil Procedure Code cannot be invoked in an application filed under Section 125 Cr.P.C. and that Cr.P.C. does not contemplate an application for amendment. The learned counsel for the petitioner submitted that since the case is remanded to the Family Court, the Family Court has no jurisdiction to allow the amendment of the petition in the absence of permission of this Court in the remand order. The learned counsel for the respondents supported the order under challenge.