R IN THE HIGH COUR T OF KARNA TAKA DHARWAD BENCH DATED TH IS THE1S T DAY OF S EP TEMB ER2016BEFORE THE HON’BL E MR . JUS TI CE P.S .DIN ESH KUMAR RPFC NO.100 062/2 016 BE TWE EN : SHIVASHANKAR CHANDRASHEKAR JOTAVAR AGE:
46. YEARS , OCC: I NS TRUC TOR , R/O: HOUSE NO.35 0, WARD NO.14 , MARADIMATH (KONNUR) 5 91 231 , TQ: GOKAK , DIS T: BE LAGAVI. ... PE TI TION ER (BY SRI M G NAGANURI, ADVOCATE.) AND1. 2 . 3 . POORNIMA W/O SHI VASHANKAR JO TA VAR AGE:
34. YEARS , OCC: HOUSEHOLD, R/O: C/O: S .G. KIT TUR , PLOT NO.1280 , NEAR JAIN BAS TI RAMTE ER TH NAGAR, B ELAGAVI-5 90016 , NOW A T KI TTU R RANI CHANNAMMA, RESIDEN TIAL SCHOOL, KI TUUR-5 91115 , TQ: BAI LHONGAL, DIS T: BE LAGAVI. KUMAR NANDAN S/O SHIVASHANKAR JO TA VAR AGE:
5. YEARS , OCC : S TUDEN T, SINCE MINOR RE P. BY HIS NATURAL MOTHE R RESPONDEN T NO.1 . KUMARI SONAM D/O SHIVASHANKAR JO TAVAR2AGE:
4. YEARS , OCC : S TUDEN T, SINCE MINOR RE P. BY HIS NATURAL MOTHE R RESPONDEN T NO.1 . ... RESPONDEN TS (R.1 – NOTICE SE RV ED, R.2 AND R .3 – MINORS, REP . BY R.1 .) THIS RPF C IS F ILED UNDER SEC TION19(4) OF THE FAMILY COURTS AC T, 1984 , PRAY ING TO S E T ASIDE THE ORDER
DA TED23.12 .2015 , PASSED IN CRL .MISC.NO .456 /2015 , BY THE JUDGE, FAMILY COURT, BELGAUM, E TC .,. THIS PE TI TION COMING ON FOR ADMISSION THIS DAY, THE COUR T PASSED THE FOL LOWING : ORDER
This petition raises an important question with regard to service of notice/s issued by the Family Courts in petitions filed under Section 125 of Cr.P.C. for maintenance.
2. Petitioner herein has challenged the order dated 23.12.2015 allowing Crl.Misc.No.456/2015 by the Family Court, Belagavi and awarding maintenance of Rs.5,000/- per month to the 1 s t respondent and Rs.1,000/- 3 per month to the 2 n d respondent till he attained majority and Rs.1,000/- per month to the 3 r d respondent till the date of her marriage.
3. The respondents, though served have remained absent.
4. The petition filed by the respondents under Section 125 of Cr.P.C. was registered and notices on the main petition and I.A.No.2 were issued through Court and RPAD as per order dated 29.10.2015. Accordingly a notice was issued through RPAD on 11.11.2015. In the proceedings held on 10.12.2015 the trial Court has noted that the notice sent to the petitioner through RPAD was returned with a postal endorsement that petitioner had ‘refused’. Accordingly he was placed ex par te and the matter was posted for evidence. Subsequently evidence was recorded and the impugned order passed. 4 5. Assailing the validity of the impugned order, Sri M.G.Naganuri, learned counsel for the petitioner submitted that the impugned order is unsustainable in law on two counts. Firstly, petitioner is not served in the manner prescribed under Section 67 of Cr.P.C. Secondly, evidence is not recorded as prescribed under Section 126 of Cr.P.C.
6. Amplifying his contentions, he submitted that initially trial Court ordered issue of notice both through Court and RPAD. However, the service was held sufficient only on the basis of postal endorsement that petitioner had ‘refused’. Thus, service to petitioner was not complete as required under Section 67 of Cr.P.C. He next contended that under Section 126(2) of Cr.P.C., evidence should be recorded in the presence of a person against whom an order of maintenance is proposed to be made and in case his personal 5 attendance is dispensed with, then evidence should be recorded in presence of his pleader. In support of his contentions he placed reliance on two judgements of this Court in the cases of The S tate vs. Bhimr ao and ano ther, reported in AIR1963Mysore 239 and Bhimappa Gang appa v s. Ind ir abai, repor ted in 1981 K ar.L.J.
353. 7. I have given my careful consideration to the submissions of the learned counsel for the petitioner and perused records.
8. Procedure to be followed before a Family Court is governed by Section 10 in Chapter IV of the Family Courts Act, 1984 and it reads as follows:
10. to Procedure generally.—(1) Subjec t to the o ther provisions of this Ac t and the rules, the provisions of the Code of Civ il Procedure, 1908 (5 of 1908) and of any o ther l aw f or the time be ing in force shall apply the suits and proceeding s [o ther than the proceeding s under Chap ter IX of the Code of Criminal 6 Procedure, 1973 (2 of 1974)]. bef ore a Family Cour t and f or the purposes of the said provisions of the Code, a Family Cour t shall be deemed to be a c iv il cour t and shall have all the po wers of such cour t. (2) Subjec t to the o ther prov isions of this Ac t and the rules, the prov isions of the Code of Criminal Procedure, 1973 (2 of 1974) or the rules made thereunder, shall apply to the proceed ings under Chap ter IX of that Code bef ore a Family Cour t. xxx.xxx.xx…. (emphasis supplied) 9. A careful reading of above provision shows that proceedings other than those instituted under Chapter IX of Code of Criminal Procedure shall be governed by Code of Civil Procedure, 1908. It is to be noted that Section 125 of Cr.P.C. falls within Chapter IX of Cr.P.C. and therefore by natural corollary all proceedings under Section 125 of Cr.P.C. should be conducted in consonance with the provisions contained in the Code of Criminal Procedure. 7 10. Admittedly proceedings were instituted in the Family Court, Belagavi. Petitioner is a resident of Maradimath (Konnur) in Gokak Taluk. Therefore petitioner’s residence is clearly outside the local limits of the Court situated at Belagavi. Hence Section 67 of Cr.P.C., is applicable and the same reads as follows:
67. Service of summons outside local limits.—When a Cour t desires th at a summons issued by it shall be served at any pl ace outside its local jur isd ic tion, it shall ordinar ily send such summons in dupl ic ate to a Mag is trate with in whose the person summoned resides, or is, to be there served. jur isd ic tion local 11. Thus, in proceedings under Sec. 125 Cr.P.C., summons to respondent situated outside the jurisdiction of a Court should be served in accordance Section 67 of the Code of Criminal Procedure. The trial Court having issued notice to the petitioner herein through Court ought to have recorded a finding with regard to service of said 8 notice. However, service of notice has been held to be sufficient based on a postal endorsement and the same runs counter to the procedure contained in Section 10 of Family Courts Act read with Section 67 of Cr.P.C. In the premise, placing the petitioner ex par te based on the postal endorsement is unsustainable in law.
12. With regard to the second contention of petitioner namely, recording of evidence, it is relevant to notice Section 126(2) of Cr.P.C., which reads as follows:
126. Procedure.—(2) All evidence to such proceed ings shall be taken in the presence of the person ag ains t whom an order f or payment of main tenance is to be made, or, when his proposed personal attend ance is dispensed wi th in the presence of his ple ader, and shall be recorded in the manner prescribed f or summons-c ases: Prov ided that if the Mag is tr ate is satisf ied that the person ag ains t who m an order f or paymen t of main tenance is proposed to be made is willf ully avo id ing service, or willf ully neglec ting to atte nd 9 the Cour t, the Mag is tr ate may proceed to hear and de termine the c ase ex par te and any order so made may be se t aside for good c ause sho wn on an appl ication made within three months f rom the d ate thereof subjec t to such terms including terms as to payment of costs to the opposite par ty as the Mag is tr ate may think just and proper. (emphasis supplied) 13. Proviso to Section 126(2) of Cr.P.C. makes it clear and if the Magistrate is satisfied that if the person against whom an order of maintenance is proposed is willfully avoiding or neglecting to attend the Court, the Magistrate may hear the matter ex par te. In the instant case the trial Court having noted the postal endorsement to the effect that the petitioner had ‘refused’ service of notice, chose to place him ex par te. The satisfaction of the learned Magistrate as required under Section 126(
2) of Cr.P.C. before placing the petitioner herein ex par te is not forthcoming. Further, there is no reference to any order 10 dispensing the presence of petitioner. Hence, evidence could not have been recorded in the absence of the petitioner.
14. In the case of Bhimappa ( supr a), this Court, following the earlier decision in the case of S tate Vs. Bhimr ao (supr a), has held that a Magistrate must be satisfied that either the respondent in a proceeding under Section 125 of Cr.P.C., was willfully avoiding service or neglecting to attend the Court before placing him ex par te.
15. In the instant case, petitioner has been placed ex par te by the learned Magistrate without recording his satisfaction contemplated under Section 126(2) of Cr.P.C. and evidence has been recorded in his absence.
16. Therefore, in light of above discussion, the proceedings before the trial Court stood 11 vitiated on both counts, namely, (i) irregul ar ity in service due to non compl iance of Sec tion 67 of Cr.P.C.; and ( ii) irregul ar ity in recording ev idence due to non compl iance of Sec tion 126(2) of Cr.P.C. Consequently the impugned order is unsustainable in law. Hence this petition preeminently merits consideration.
17. In the result, (i) Order dated 23.12.2015, passed by the Family Court, Belagavi is quashed; (ii) the matter is remitted back to the Family Court to proceed further with the proceedings from the stage of issuing notice strictly in accordance with the provisions of the Code of Criminal Procedure in the light of observations made in this order. (iii) Registry is directed to circulate a copy of this Order to the Courts 12 handling matters under Section 125 of Cr.P.C. Petition disposed of. No costs. Mrk/- Sd/- JUDGE