Shri K.J. Ghute Patil, A.P.P v. Bhausaheb Genu Pagire : [2009(3) Cri. Revn. Appln 130/2011 Bombay Cases Reporter & Anr.

1. Mrs. Jaishri w/o Babasaheb Dabhade, Age : 23 years, Occupation : Household, Residing at C/o Shankar Shenphadu Arake, Wadgaon Kolhati, Bajaj Nagar, Aurangabad.

2. The State of Maharashtra. ....Petitioner. ...Respondents.

Shri K.J. Ghute Patil, A.P.P. for respondent / State. ..... ..... CORAM : U.D. SALVI, J. DATED : 19th June, 2012 PER COURT :

Heard. Perused records.

This criminal revision application assails the order dated 13/05/2011 passed by the learned Family Court, Aurangabad below the application for amendment to the application Exhibit 9 in Petition No. E-72/2010. 2 Cri. Revn. Appln 130/2011

Respondent No.1 wife of the petitioner herein filed an application for maintenance under section 125 of the Code of Criminal Procedure, 1973, being Petition No. E-72/2010 in the Family Court, Aurangabad, against the petitioner. During the pendency of this application, it appears that the respondent No.1 gave birth to a daughter and consequently she moved an application for impleading the newly born daughter to her application for grant of maintenance. Purportedly this application was moved as per provisions of O. VI R. 17 of the Code of Civil Procedure, 1908. This application for amendment and consequent joinder of the newly born daughter to the application for grant of maintenance was resisted by the petitioner with the say dated 23/03/2011. Primary objection to the amendment solicited by the respondent No.1 was the criminal nature of the proceeding wherein the application of rules of the Code of Civil Procedure was unwarranted.

The present petition is the very extension of the said resistance. However, neither the petitioner nor his advocate have appeared before this Court to pursue the cause. After getting stay to the proceeding before the Family Court, the petitioner virtually abandoned the proceedings and on one occasion sought time for rejoinder and yet did nothing. But that apart, the submissions 3 Cri. Revn. Appln 130/2011 made by Ld. Advocate Mr. Ghute Patil for the respondent No.1 persuade this Court to look into its merits.

4. Learned Family Court, Aurangabad permitted joinder of the newly born daughter of the petitioner to the application for grant of maintenance moved by her mother – the respondent No.1 and allowed consequent amendment to the said application on seeing rationale that the proceedings under section 125 of the Code of Criminal Procedure are of quasi civil nature and for complete adjudication of the issues involved, it was necessary to allow the amendment.

Learned advocate for the respondent No.1 submitted that the very purpose of the proceeding under section 125 of the Code of Criminal Procedure is to decide civil rights of the claimants summarily through the process of Cr.P.C. and therefore, lack of provision for amendment of the application made thereunder is no impediment in granting the permission to amend the application, if it is to end in the complete adjudication of the rights of the parties to the said application. In support of this submission, he relied on the judgment delivered by the single bench of this Court in Mandakini Bhausaheb Pagire’s case (Mandakini Bhausaeb Pagire Vs. Bhausaheb Genu Pagire and another : [2009(3) 4 Cri. Revn. Appln 130/2011 Bombay Cases Reporter (Cri.) 693]. Pertinent observations made by the single bench of this Court in the said case can be beneficially adverted to in the present case and as such are quoted herein below. “10. ........... The proceeding under section 125 of the Code of Criminal Procedure can not be, however, compared with the proceeding of the complaint case since the former proceedings are not for the purpose of fact finding of complicity in a criminal case. The very purpose of proceedings under section 125 of the Criminal Procedure Code is to decide civil right of the claimants through the process of Criminal Procedure Code.

Perusal of the impugned order reveals that the paternity of the newly born daughter was not denied by the petitioner. Insertion of her name as a party applicant in the application for grant of maintenance under section 125 of the Code of Criminal Procedure would only help resolution of the issue of maintenance generated between the newly born child and her father - the petitioner in the same application and would cause no prejudice to either side. Learned Family Court, Aurangabad therefore, rightly saw valid reason in allowing the application for insertion of the newly born daughter in the said application for complete adjudication of all the issues involved between the parties. With 5 Cri. Revn. Appln 130/2011 this view of the matter, this Criminal Revision Application deserves to be rejected. Hence, the revision application is rejected. ts k/

( U.D. SALVI, J.)