CHINNAPPAIYAN v. CHINNATHAYEE

Advertisements

[A.I.R 2010 Mad HC]

1. INTRODUCTION-

Section 125 of the Code of Criminal Procedure of 1973 deals the order of maintenance of wife, parents, legitimate or illegitimate child who are unable to maintain themselves or of a legitimate or illegitimate child (not being a married daughter) who has attained the age of majority but are unable to maintain themselves on account of physical or mental abnormality or injury. The case of Chinnappaiyan v. Chinnathayee of 2010 deals primarily with the question as to whether the court before which a case with respect to seeking an order of maintenance is pending under Section 125 of the Code of 1973 can make an amended to the petition so instituted.

• BRIEF FACTS OF THE CASE-

Chinnathayee w/o Chinnappaiyan had filed a petition seeking maintenance from her husband Chinnapaiyan under Section 125 of the Code of 1973 before the Court of Judicial Magistrate-II, Mettur Dam, Salem District for maintenance. In the said petition she reiterated that she had married Chinnappaiyan on the 10th day of the Tamilian month Vaigasi nearly 29 years ago while further claiming that she bore a child out of the marriage on the 10th of Vaigasi in the year 1976. Chinnappaiyan however, by way of a counter affidavit denied such marriage as well as the birth of a child from such marriage. Subsequently, the petitioner filed a petition seeking the permission to make amends to the original petition with respect to her husband’s and her age, their date of marriage while also wanting to mention additional details regarding the immovable properties owned by her. The Respondent’s counsel however strongly opposed this by contending that till date no provision allowing such amendment persisted while further arguing that if such amendment were allowed to be made the very inherent character of the petition would change. At the time, the concept of amendment was alien in the Criminal law arena. Since the matter at hand involved the question of law that was of paramount public importance, Justice Nagamuthu appointed Advocate V Padmanabhan, a senior advocate, a leading criminal law practitioner and legal luminary, as the amicus curie to assist the court in deciding the case in all his sagacity. Advocate Padmanabhan while assisting the court discussed before the court that since the proceedings under the said provision is of a quasi-civil nature, hence, an amendment can be made despite the absence of a specific provision for amendment in the code. Thus, suggesting to the court that amendment to such petition can be allowed. Justice Nagamuthu on recommendation of the senior advocate and on due deliberation after considering the submissions made by the respondent the Magistrate by the order dated 21.04.2006 allowed the petition. Consequently, aggrieved by the order so given the respondents appeared filed a criminal revision petition before the court praying that the order dated 21.04.2006 be set aside.

• ISSUE RAISED-
• Whether the court, before which a proceeding under Section 125 of the Code of Criminal Procedure is pending can allow the petitioners to amend the petition?

The petitioner contended that there is no provision under the Code of Criminal Procedure of 1973 that expressly allows the magistrate to make an amendment to a petition for seeking an order of maintenance under Section 125 while further stating that such amendment would cause the character of such petition to change causing prejudice to the petitioner.

• ARGUMENT OF THE RESPONDENT(CHINNATHAYEE)-

The respondent per contra to the arguments the petitioner stated before the court that the amendment to the petition would not change the character of the claim and would not cause prejudice to the petitioner. The counsel for the petitioner also claimed that the trial court was correct in allowing the amendment to be made to the petition filed by them for seeking an order of maintenance. The Respondent sought for the dismissal of the Criminal Revision Petition.

• JUDGEMENT-

The court while deciding the matter at hand discussed the very pith and substance of Section 125 and observed that the said provision is a social legislation which has been formulated to foster a society that protects women, children and parents that are unable to support themselves. The hon’ble justice further reiterated that the claim for maintenance was earlier only made under personal laws and was tried by the civil courts however the parliament formulated provisions allowing individuals to claim for maintenance before criminal courts with the view of tackling the backlog of cases in courts and facilitating speedy trial, for justice delayed is justice denied. Hence, the petition under Section 125 (1) the right that is decided by the trial Court is purely civil in nature. However, under sub-section (3) of Section 125 the Court is empowered to impose a sentence of imprisonment, on failure to comply with such order made under Section 125 (1) of the Code. To this extent, the proceeding is criminal in nature. Thus, in simple terms a proceeding initiated under Section 125 of the Code is quasi-civil and quasi-criminal in nature. The court referred to various Supreme Court cases such as the U.P. Pollution Control Board v. Messrs Modi Distillery and other case [A.I.R 1987 SC 684] , the K.K.Saravanakumar v. V.Saravanan,2009 case, inter alia and on due deliberation concluded that despite absence of specific provision, a legal infirmity of such nature that can be easily cured by means of a formal application can be allowed however if an amendment is not a formal one the same cannot be entertained. Thus, the High Court of Madras dismissed the Criminal Revision Petition while establishing that amendments can be made to such petitions.

• CONLUSION-

In the given case the High Court of Madras while paying heed to and on referring to umpteen number of judgements of the apex court held that despite the absence of express provisions with respect to amendment to a petition for maintenance under Section 125 of the Code of 1973, an amendment can be made to a petition with respect to those legal infirmities that are easily curable by way of a formal application for amendment as the said provision is a social legislation put forth for protecting those who are unable to sustain themselves thus, absence of an express provision in this regard must not come in the way of administration of justice. Thus, upholding the sanctity of law.

Written By Ms. Ananya Gosain, Law College Dehradun faculty of Uttaranchal University

Admin