CHITTALURU RAMAGOPAL REDDY Vs. CHITTALURU INDIRAMMA

JUDGEMENT

(1.) This revision is directed against the order passed by the learned Third Additional Judicial First Class Magistrate, Nellore, in Crl.M.P. No. 1542 of 1979 in M.C. No, 21 of 1979 on the file of his Court. The petitioner herein is the husband of the 1st respondent and father of the respondents 2. 3 and 4. The respondents filed a petition under section 125, Criminal Procedure Code, against the petitioner claiming maintenance. It was alleged in the petition that the petitioner married the 1st respondent according to Hindu law and custom about 14 years ago, and that, after the consummation of the marriage, while the petitioner and the 1st respondent were living amicably, the respondents 2 to 4 were born to them. It was further alleged that the petitioner contacted several vices and bad habits off late, that he was wasting the income of the joint family and that he has been beating the respondents often for no reason at all. According to the respondents, the petitioner became irresponsible to the family and completely abandoned the respondents since about five, months prior to the institution of the petition. The petitioner gave up residence in the family house and set up separate residence threatening the respondents with a view to completely get rid of them. The petitioner has an annual income of Rs. 15,000 to Rs. 20,000 owning about 29 acres of wet land in the village. It is further alleged that the petitioner has been neglecting and refusing to maintain the respondents, even though he has sufficient means and there is no lawful or reasonable excuse for his negligence and refusal. Monthly maintenance at the rate of Rs. 200 for the 1st respondent and Rs. 100 for each of the other three respondents was claimed. The petitioner filed a counter opposing the application though he admitted that the 1st respondent is the married wife and the respondents 2 to 4 are the minor children, through the 1st respondent. In the counter, the petitioner denied all the allegations made by the respondents and added that, after the birth of the third child, the petitioner had undergone vasectomy operation on 15th May, 1972 and that the 1st respondent gave birth to an illegitimate child on 16th March, 1977 having lived in open adultery with one Ramakrishna Reddy and others. It was further averred in the counter that the 1st respondent wilfully deserted the petitioner about three and half years before the institution of the petition and that eversince she was living in open and continuous adultery with Ramakrishna Reddy and others. The petitioner also denied that he did not have such annual income as alleged by the 1st respondent. After the counter was filed, the Court posted the case for enquiry and directed that the petitioner herein should adduce evidence in the first instance. The petitioner filed an application requesting the Court to rescind the order directing him to adduce evidence in the first instance and to record evidence in the case as if in a summons case. The petitioner requested the Court to record the evidence of the respondents in the first instance. On a consideration of the contentions of the parties, the Court dismissed the petitioner's application and the petitioner came up in revision to this Court against the said order of dismissal.

(2.) Sri S. R. Ashok, the learned Counsel for the petitioner, contends that evidence in proceedings under section 125, Criminal Procedure Code, should be recorded as if in a summons case and so it is always the petitioner who is in the position of a complainant that should adduce evidence in the first instance except when the respondent, who is in the position of an accused, unequvocally admits all the allegations in the petition. Sri M. Y. K. Rayudu the learned Counsel for the respondents on the other hand, contends that the petitioner and the 1st respondent in proceedings under section 125, Criminal Procedure Code, are not complainant and accused and that there is no specific provision which provides that the enquiry under section 135, Criminal Procedure Code, is to be conducted as if in a summons case. It is submitted by Sri M. Y. K. Rayudu that the proceedings are of a civil nature entitling the Court to direct the parties to adduce evidence so as to discharge the burden of proof that is laid on them in, the light of the contentions raised by them in the petition and the counter.

(3.) The short question for decision in this revision therefore is In a proceeding under section 125, Criminal Procedure Code, is it the petitioner or is it the respondent that should commence the adducing of evidence?