BALAKRISHNAN Vs. RAJAMMA

JUDGEMENT

(1.) The revision petitioner was the respondent in M. C. 10 of 1978 of the Sub Divisional Magistrate's Court, Chengannur. M. C. 10 of 1978 was initiated by the mother of a child for maintenance under S.125 of the Code of Criminal Procedure against the revision petitioner, the putative father of the minor. Paternity was denied by the revision petitioner. The petition stood posted to 17th June, 1978. The mother of the minor was absent when the case was called. An application had been filed by the revision petitioner for the adjournment of the case along with a medical certificate showing that he was ill. The Magistrate, however, dismissed the application for maintenance for default of the mother, who is the respondent herein. The respondent turned up soon after the dismissal of the petition, on the same day and filed C.M.P. No. 2135 of 1978 for restoration of the application, The learned Magistrate observed that the Code of Criminal Procedure does not provide for restoration of an application for maintenance once it is dismissed for default. The Magistrate, however, renumbered the case as M. C. 98 of 1978 stating that interests of justice demanded such a course. The present revision petition is filed challenging the above order.

(2.) The fact that the respondent turned up immediately after the disposal of the petition shows that the Magistrate was rather hasty in dismissing the case and could have adjourned the case in view of the application for adjournment moved on behalf of the present revision petitioner. But the question to be considered is whether the Magistrate, having dismissed the petition, was right in taking up the claim for maintenance by assigning a new number to the case.

(3.) No decided case of this court has been brought to my notice dealing with the point. Although there is provision in S.126(2) of the Code of Criminal Procedure for setting aside an order of maintenance passed in the absence of the husband a similar provision for restoring an application for maintenance dismissed for default of the petitioner is not provided. It is now fairly well settled that neglect or refusal to maintain is not an offence in the strict sense of that term. S.403 of the Code of Criminal Procedure, 1898 which corresponds to S.300 of the new Code has no application and, therefore, a second motion for the grant of maintenance is not barred. See Mantajali v. Emperor (AIR 1920 Calcutta 38), Manug Hla Manug v. Ma On Kin (AIR 1927 Rangoon 328), Dina v. Parsram (AIR 1950 Nagpur 45), Ram Chand v. Jiwan Bai (AIR 1958 Punjab 431), Nafees Ara v. Asif Saadat Ali Khan (1963 (1) CriLJ 394) and Laisram v. Sakhi Devi (AIR 1965 Manipur 49). The ratio of the decisions is that a dismissal of an application for maintenance is on a par with dismissal of a complaint or discharge of an accused and would not be a bar for a further enquiry into the merits of the case. If the dismissal is on the merits and after taking evidence, the order is final and no fresh application would lie. See Muteswari v. Nand Kumar Singh (17 CriLJ 106).