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125 cr pc

Querist : Anonymous (Querist) 24 March 2010 This query is : Resolved 
any expert,can u please give citations to amend the 125 cr.pc petition under order6 rule 17 of c.p.c. please.
Parveen Kr. Aggarwal (Expert) 24 March 2010
IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION

CRIMINAL WRIT PETITION NO. 107 OF 2009

Shri Ravindra Ramchandra Tingare | ... Petitioner. Age : 30 years, Occu: Business, |

R/o. Khanapur, Tal. Khanapur, |

Dist. Sangli. |

V/s.

1. Sou. Ashwini Ravindra Tingare | ... Respondents. Age : 28 years, Occu. Household, |

R/o : C/o. Shri Ishwarappa Sidhappa |

Wagarale, Shivaji Peth, Kolhapur, |

|

2. The State of Maharashtra |

-----

Mr. Ashutosh M. Kulkarni for the Petitioner.

Mr. H.V. Shekhawat i/by Shri Rahul Kulkarni for Respondent no.1. Ms. S.V. Gajre, APP for the State.

-----

CORAM : A. S. OKA, J.

DATED : JUNE 19, 2009

ORAL JUDGMENT :


1. Heard learned counsel appearing for the petitioner and the learned counsel appearing for the first respondent.

2. The petitioner husband, who is the party opponent to an application under section 125 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the said Code of 1973) filed by the 1st respondent- wife and the minor child, has invoked the jurisdiction of this court under Article 227 of the Constitution of India for challenging the order by which the wife and the child have been permitted to claim maintenance of Rs. 3000/- per month each. In the application under section 125 of the said Code of 1973 filed by the wife and the minor child, initially maintenance at the rate of Rs. 1,500/- per month each was prayed for. An application was made for amendment of the said application. In the application for amendment, it was contended that during the pendency of the application it was learnt that the petitioner husband has acquired a Maruti Alto Car. The prayer in the application for amendment was that the wife and the minor child be granted maintenance at the rate of Rs.3000/-per month. The said application has been allowed by the impugned order and the 1st respondent has been permitted to amend the prayer in the application under section 125 of the said Code of 1973. The said order permitting amendment has been challenged by this petition.

3. The learned counsel appearing for the petitioner-husband pointed out that the application for amendment is purportedly made by invoking provisions of Order 6 Rule 17 of the Code of Civil Procedure, 1908. He submitted that obviously the provisions of Code of Civil Procedure, 1908 were not applicable to an application filed under section 125 of the said Code of 1973. He submitted that the learned Magistrate has taken erroneous view of the matter by allowing the amendment after holding that the proceedings under section 125 of the Cri. P. C. are quasi- civil in nature. He submitted that there are decisions of this court holding that there is no provision under the said Code of 1973 permitting amendment to be carried out to the pleadings. He submitted that the impugned order is completely illegal and deserves to be set aside.


4. I have considered the submissions. The effect of the amendment will be that instead of claiming maintenance at the rate of Rs. 1500/- per month now the wife and the child will be entitled to claim maintenance of Rs. 3000/- per month each provided they establish their entitlement to receive maintenance at the said rate. Perusal of the application under section 125 of the said Code at Exh. `A' shows that the said application was filed on 3rd November, 2007. The said Code of 1973 as it stood prior to 24th of September, 2001 provided that maintenance amount cannot exceed a particular amount and by the Amendment Act No. 50 of 2001 which came into force on 26th September 2001, the said upper ceiling was removed by the legislature. The application of the 1st respondent will be governed by the amended Code. On a plain reading of sub-section (1) of Section 125 of the said Code of 1973, it is apparent that a claim to a particular amount made by the applicant in such application is irrelevant and ultimately it is for the learned Magistrate to decide at what rate monthly allowance shall be paid. It is only as a rule of fair play that a claim of specific amount of monthly maintenance is required to be incorporated in the application under section 125 to enable the opponent to the application to meet the case made out in the application.

5. The object of section 125 of the said Code of 1973 is to provide speedy and cheap remedy for obtaining orders of maintenance. Section 126 deals with the procedure to be followed in an application under section 125 of the said Code, 1973. Strict Rules of the pleadings are not applicable to such proceedings. The remedy under section 125 is a summary remedy. While finally deciding an application under section 125 of the said Code of 1973, the court is bound to take into consideration the events which have occurred during the pendency of the application. If on the basis of subsequent events which have taken place during the pendency of the application under section 125 of the said Code, the applicant desires to claim higher amount than what is claimed, the applicant need not amend the application. The applicant can always claim maintenance at an enhanced rate by filing a simple application claiming enhanced amount by specifying the amount. The object of such application is of putting the opponent to the notice that an amount more than what is prayed for in the main application is being claimed by the applicant. In the present case, by filing an application for amendment all that the wife did was to put the petitioner husband to the notice that she intended to claim more amount than what was prayed for in the original application. Only with a view to ensure that the petitioner is not taken by surprise, the wife has chosen to apply for amendment of the application. The wife could have filed an application pointing out that she intends to claim the said higher amount and it was not necessary to apply for amendment. Whether there was an amendment carried out to the application or not, the wife could have always adduced evidence to prove the entitlement to receive the amount of Rs.3000/- per month each by way of monthly allowance. On the basis of the evidence adduced by the parties, the court could have always fixed an appropriate amount of monthly allowance payable to the wife and the child.

6. There is no prejudice caused to the petitioner by the impugned order. Merely because a wrong provisions of law is mentioned in the application due to an error committed by an Advocate, the learned Magistrate is not deprived of power of passing appropriate orders in accordance with the law especially when the learned Magistrate is dealing with an application u/s. 125 of the said Code of 1973.

7. There is no reason to interfere with the impugned order in the writ petition. The petition is rejected.

(A.S.OKA,J.)

.....

nidhi kalia (Expert) 30 March 2010
PARVEEN KUMAR HAS ALREDY GIVEN U MORE DETAIL ABOUT Crpc 125


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