SAINULABDHEEN Vs. BEENA
LAWS(KER)-2003-10-24
HIGH COURT OF KERALA
Decided on October 03,2003

SALNULABDHEEN Appellant
VERSUS
BEENA D/O SHANSUDIN Respondents

JUDGEMENT

- (1.) Whether this Court in the absence of any miscarriage of justice, is bound to interfere in the order of a Magistrate allowing amendment of a petition filed under S.3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986 (in short 'the Act') in the absence of specific provision for amendment of pleadings in the Code of Criminal Procedure is the question considered in this case.
(2.) First respondent herein filed a petition under S.3 of the Muslim Women (Protection of Rights on Divorce) Act. According to her claim, the counter petitioner in the M.C. has promised a mahar of 28 grams of gold ornaments and it was given. At the time of evidence, the counter petitioner (husband) deposed that out of the mahar promised, only 14 grams of gold was given. Contention of the husband was that since the marriage was not consumated, he has obligation only to give 50% of the mahar promised. According to the wife, the marriage was already consumated. She filed a petition to amend the petition stating that out of the 28 grams of gold promised as mahar, only 14 grams were received and averment in the petition that the entire mahar promised was paid was made under a bona fide mistake. The above amendment application was allowed by the Magistrate. That is questioned in this case.
(3.) Main contention taken up is that under the Code of Criminal Procedure, there is no provision for amendment of pleading and, essentially, the proceedings under S.3 of the Muslim Women (Protection of Rights on Divorce) Act is a criminal proceedings. Learned counsel relied on the decision of the Full Bench of the court in Satyabhama v. Ramachandran ( 1997 (2) KLT 503 FB). The court held that when Family Court is hearing a petition under S.125 of the Code of Criminal Procedure in exercise of its jurisdiction under S.12A, it is a criminal court and the proceedings is a criminal proceedings. The respondent, on the other hand, relied the decision of another Full Bench of this Court in Balan Nair v. Valsalama ( 1986 KLT 1378 ) where in it was held that the provision of S.125 is a measure of social legislation and specially enacted to protect women and children. The brooding presence of the constitutional empathy for the weaker sections like women and children must perform interpretation if it has to have a social relevance. The Full Bench held that the court has got power to set aside ex parte order under S.125 of the Code of Criminal Procedure. The Full Bench in Balan Nair's case (supra) also held that proceedings under Chapter IX of the Code of Criminal Procedure are essentially of civil nature. The court further held that the fact that provisions occur in the Code of Criminal Procedure and not in the Code of Civil Procedure and the fact that the recalcitrant opposite party who suffers the order of maintenance and does not obey the order may have to go to prison will not change the nature of proceedings from civil to criminal. In Nanda Lal v. Krishna Lal ( AIR 1960 SC 882 ), the Supreme Court held that the provisions under Chapter IX of the Code of Criminal Procedure are essentially civil in nature. The judgment in Balan Nair's case was considered but not followed by the subsequent Full Bench in Sathyabhama's case (supra) in view of the Apex Court decision in S.A.L. Narayanan Row and Another v. Ishwarlal Bhagwandas & Anr. ( AIR 1965 SC 1818 ). In that case, the Supreme Court observed as follows: " .......... The expression 'civil proceeding' is not defined in the Constitution, nor in the General Clauses Act. The expression in our judgment covers all proceedings in which a party asserts the existence of a civil right conferred by the civil law or by statute, and claims relief for breach thereof. A criminal proceeding on the other hand is ordinarily one in which if carried to its conclusion it may result in the imposition of sentences such as death, imprisonment, fine or forfeiture of property. It also includes proceedings in which in the larger interest of the State, orders to prevent apprehended breach of the peace, orders to bind down persons who are a danger to the maintenance of peace and order, or orders aimed at preventing vagrancy are contemplated to be passed ............." (emphasis supplied) After considering the above observations of the Supreme Court, the Full Bench observed as follows: "The law of precedents would compel us to follow Narayan Row's case (supra) in preference to Nanda Lal's case (supra) while deciding the nature of the proceedings exercised by the Family Court under S.7(2)(a) of the Act. The Supreme Court has clearly stated in Union of India v. K.S. Subramanian ( AIR 1976 SC 2433 ) that when different Benches of the Supreme Court have expressed differing opinions on a point, the proper course for the High Court is to try to find out and follow the opinions expressed by Larger Benches in preference to those expressed by smaller Benches. As such we would be justified in holding that as regards the nature of the proceedings under Chapter IX Cr. P.C. we are bound by the decision in Narayan Row's case (supra)". There, the Full Bench was considering the question whether revision application filed from Family Court is to be considered as a Criminal Revision Petition or Civil Revision Petition. The court held that it should be considered as a Criminal Revision Petition. Even in the first Full Bench decision though observed that it is essentially a civil proceedings, it was held that it was a quasi criminal proceedings. The court only held that the remedy of the person who suffers an ex parte order is not only confined to file an application to set aside the ex parte order before the Magistrate court. It is open to him to challenge it by way of revision application under S.397 of the Code of Criminal Procedure. The question considered by the earlier Full Bench was that whether a petition to set aside the ex parte order will lie and it is held that it will lie despite absence of specific provisions in the Code of Criminal Procedure.;


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