PREEJU DAVID Vs. MINOR MEBEL

JUDGEMENT

(1.) Original petitioner herein is the father of the respondents herein, who are minors, represented by the mother. He had married the mother of the minors on 24/06/2001. After the birth of the children, relationship got strained and matrimonial proceedings were initiated. The children, through their mother, moved M. C. No. 543 of 2010 before the Family Court, Thrissur, claiming monthly maintenance under S.125 Crimial P.C. Two proceedings were initiated by the mother and an application for Divorce was filed by the father. While the matters were pending, disputes were resolved. An endorsement was made on behalf of the children on the files and maintenance petition was dismissed, by Ext.P3 order. Thereafter, the children, came to know that the father had not withdrawn his application for divorce as agreed and had in fact obtained an ex parte decree of divorce. Hence they filed M. P. No. 1433 of 2013 to recall Ext.P3 order and to restore M. C. No. 543 of 2010 to file. It was accompanied by another application to condone the delay in filing M. P. No. 1433 of 2013. Family Court, after hearing both sides allowed the applications overruling the objections filed by the husband. This is assailed in this original petition.

(2.) The premise on which the above writ petition is laid and the argument was advanced was that the Court below, after having dismissed the application, had no power under the Family Courts Act or the Rules framed thereunder, to restore or recall an order passed by it. It was contended that the statutory provisions did not enable the Family Court, which was essentially exercising the powers under S.125 Crimial P.C. and thereby governed by the provisions of the Cr.P.C, to restore the application which was dismissed. The further contention was that restoration of an application for maintenance under S.125 Cr.P.C was not contemplated under the Statute, either expressly or impliedly, but was in fact, barred under S.362 Crimial P.C. It was contended that the Court had no express, implied or inherent power to restore such an application. Per contra, learned counsel for the petitioner contended that even though no specific provision for restoration or recalling the order was available, to advance the cause of justice and in the interest of equity, the Courts have inherent and implied authority to recall its own order. Various authorities were cited by both sides in support of their contentions.

(3.) Learned counsel for the petitioner relied on the two Full Bench decisions of this Court to contend that Family Court, while exercising the jurisdiction under S.125 Cr.P.C, acts as a Criminal Court and is governed by the Crimial P.C. In Satyabhama Vs. Ramachandran, 1997 KHC 405, it was held that Family Court Act as a Criminal Court and not as a Civil Court, while disposing the applications filed under S.125 of the Crimial P.C. It was held that while exercising jurisdiction under Chapter IX Cr.P.C, the Family Courts Act as a Criminal Court and not a Civil Court. This was in the light of S.7(2) of the Family Courts Act. This view was reiterated by another Full Bench in Peter Vs. Sara, 2006 KHC 1450 . However, Honourable Supreme Court in Nanda Lal Misra Vs. Kanhaiya Lal Misra, 1960 KHC 388 had taken the view that the relief of maintenance granted was essentially of civil nature. However, the Full Bench of this Court followed the Law laid down in S. A. L. Narayan Row and Another Vs. Ishwarlal Bhagwandas and Another, 1965 KHC 740. The question that was considered by the Honourable Supreme Court in the above decision was whether proceeding taken for recovery of tax was a civil proceeding. In Mst. Jagir Kaur and another Vs. Jaswant Singh, 1963 KHC 649 , the Supreme Court had held that the proceedings for maintenance are in the nature of civil proceedings and the remedy is a summary one. In Savitri Vs. Govind Singh Rawat, 1985 KHC 731, Supreme Court held that jurisdiction under Chapter IX of Cr.PC was strictly not criminal jurisdiction. The code provides a quick remedy to the applicant. In the light of above, the nature of proceedings for maintenance is no longer in dispute. The above shows that the proceedings for maintenance are not in the nature of criminal proceedings though criminal process is applied for the purpose of summary and speedy disposal. The various judicial pronouncements referred above also indicate that the provisions under Chapter IX of the Cr.P.C form an entirely different class, distinct from other proceedings of criminal nature. Hence, it calls for an interpretation, which will advance the cause of justice and the laudable object of the Statute.