Family Law; Subair K. Vs. Asma [Kerala High Court, 27-06-2012]

Criminal Procedure Code, 1973 – Sections 125 and 127 – Amendment sought for to enhance the claim of maintenance – Whether Proper?  Held, Section 127 Cr.P.C. empowers the Magistrate to alter or modify the order of maintenance on account of (i) change in the circumstances of the party paying or receiving maintenance or (ii) any decision of a Civil Court. The party entitled to alteration of orders can always move the Magistrate when there is a change of circumstance. If, during the pendency of proceedings under Section 125 Cr.P.C., there is a change in the circumstance, which entitles the petitioner to claim enhanced maintenance and for that purpose, the amendment petition is filed for enhanced quantum of maintenance already claimed, there is no prohibition in allowing that amendment petition. Since there has been no specific prohibition in the Cr.P.C. for allowing the petition for amendment in the proceedings under Chapter IX and as such, the Family Court cannot be said to have committed any jurisdictional error in allowing the amendment sought for by the petitioners in the M.C. proceedings.

Family Court

IN THE HIGH COURT OF KERALA AT ERNAKULAM

K.T.SANKARAN & M.L.JOSEPH FRANCIS, JJ.

Dated 27th June, 2012.

O.P.(FC) No.70 of 2011 (R)

C.M.P.NO.748/2010 IN MC.141/2008 of FAMILY COURT,KASARAGOD

FOR PETITIONER: BY ADV. SRI.SURESH KUMAR KODOTH; FOR RESPONDENT(S): BY ADV. SRI.SADER E.REAZ; BY ADV. SRI.K.I.ABDUL RASHEED, ADDL.D.G.P., ADV.JENNIS STEPHEN, AMICUS CURIAE, ADV.K.P.SUDHEER,AMICUS CURIAE

J U D G M E N T

M.L.Joseph Francis, J.

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 main prayer in this Original Petition (Family Court) is to set aside the order dated 13.10.2010 in C.M.P.No.748/2010 of the Family Court.

4. Heard the learned counsel for the petitioner and the learned counsel for the respondents. Additional Director General of Prosecutions Adv.Sri.K.I.Abdul Rasheed, Adv.Sri.K.P.Sudheer and Adv.Sri.Jennis Stephen assisted this Court as amicus curiae.

5. 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.

6. The learned Advocates, who assisted this Court as amicus curiae cited various authorities to show that there is no illegality in the order under challenge.

7. The main object behind the enactment of the

Family Courts Act, 1984

(for short, ‘the Act’) is the establishment of Family Courts to promote conciliation and secure speedy settlement of disputes relating to marriage and family affairs and for matters connected therewith.

8. Under Section 2(d) of the Family Courts Act, “Family Court” means, a Court established under Section 3 of the Act. Section 3 of the Act states that for the purpose of exercising the jurisdiction and powers conferred on a Family Court by the Act, the State Government, after consultation with the High Court and by notification shall establish for every area in the State comprising a city or town whose population exceeds one million, a Family Court.

9. Section 7 is the provision which defines or confers the jurisdiction on the Family Court which reads as follows: