Case Note & Summary
The petitioner, Rajesh @ Raju s/o Bhaurao Jadhav, filed a Criminal Writ Petition under Articles 226 and 227 of the Constitution of India challenging two orders passed by the Judicial Magistrate First Class, Kalamnuri, District Hingoli. The first order dated 20.6.2009 recorded that the petitioner and his advocate were absent and no say was filed, effectively proceeding without his say. The second order dated 26.6.2009 rejected the petitioner's application (Exhibit 11) to set aside the 'no say' order and grant time to file say, on the ground that the say was not annexed with the application. The background is that the respondents (wife and minor children) had filed Criminal Miscellaneous Application No. 151/2008 seeking maintenance under Section 125 of the Code of Criminal Procedure, 1973. The petitioner appeared through an advocate and sought time to file say. On the date fixed for filing say, the petitioner was absent due to gastro illness and his advocate also remained absent. The Magistrate passed an order noting their absence and proceeded without say. Subsequently, the petitioner's advocate filed an application at Exhibit 11 praying to set aside the 'no say' order and for time to file say, explaining the illness. The Magistrate rejected it stating the application was not tenable as the say was not annexed. The High Court, after hearing both sides, found that the Magistrate acted hastily and ought to have considered the application on merits. The court held that the petitioner had shown sufficient cause for his absence and should be given an opportunity to file his say. The impugned orders were quashed and set aside, and the Magistrate was directed to restore the application to its original number and proceed afresh, granting the petitioner an opportunity to file his say within four weeks. The petition was allowed.
Headnote
A) Criminal Procedure Code - Maintenance - Section 125 CrPC - Setting aside ex parte order - The petitioner/husband was absent due to illness and his advocate also remained absent, leading to a 'no say' order. The Magistrate rejected his application to set aside the order on the ground that the say was not annexed. The High Court held that the Magistrate ought to have considered the application on merits and granted an opportunity to file say, as the petitioner had shown sufficient cause. (Paras 3-5)
B) Criminal Procedure Code - Maintenance - Section 125 CrPC - Opportunity of hearing - The High Court emphasized that in maintenance proceedings, the respondent must be given a fair opportunity to present his case. Rejecting the application merely because the say was not annexed was not justified. (Paras 4-5)
Issue of Consideration
Whether the learned Magistrate erred in rejecting the petitioner's application to set aside the 'no say' order and to grant time to file say, thereby denying him an opportunity to be heard in a maintenance proceeding under Section 125 CrPC.
Final Decision
The petition is allowed. The impugned orders dated 20.6.2009 and 26.6.2009 passed by the learned Judicial Magistrate First Class, Kalamnuri, District Hingoli are quashed and set aside. The learned Magistrate is directed to restore Criminal Miscellaneous Application No.151/2008 to its original number and proceed afresh, granting an opportunity to the petitioner to file his say within four weeks from the date of the order. Rule is made absolute accordingly.
Law Points
- Maintenance under Section 125 CrPC
- Setting aside ex parte order
- Opportunity of hearing
- Sufficient cause for absence
Case Details
2010 LawText (BOM) (07) 7
Criminal Writ Petition No.626 of 2009
Shri Suraj Bagal for petitioner, Shri Abhijit Namde for respondents
Rajesh @ Raju s/o Bhaurao Jadhav
Shobhatai w/o Rajesh @ Raju Jadhav, Amol s/o Rajesh Jadhav, Nikita d/o Rajesh Jadhav
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Nature of Litigation
Criminal Writ Petition under Articles 226 and 227 of the Constitution of India challenging orders passed by the Judicial Magistrate First Class in a maintenance proceeding under Section 125 CrPC.
Remedy Sought
Petitioner sought quashing of the order dated 20.6.2009 (proceeding without say) and order dated 26.6.2009 (rejecting application to set aside 'no say' order) and acceptance of his say.
Filing Reason
The petitioner was absent due to illness on the date fixed for filing say, and his advocate also remained absent. The Magistrate passed a 'no say' order and later rejected his application to set aside that order on the ground that the say was not annexed.
Previous Decisions
The Judicial Magistrate First Class, Kalamnuri, passed an order on 20.6.2009 noting absence of petitioner and advocate and proceeding without say. On 26.6.2009, the Magistrate rejected the petitioner's application (Exhibit 11) to set aside the 'no say' order and grant time to file say.
Issues
Whether the Magistrate erred in rejecting the petitioner's application to set aside the 'no say' order and grant time to file say, thereby denying him an opportunity to be heard.
Whether the petitioner had shown sufficient cause for his absence and the absence of his advocate.
Submissions/Arguments
Petitioner argued that he was suffering from gastro illness and his advocate also remained absent, which constituted sufficient cause for not filing say. The Magistrate ought to have allowed the application and granted time.
Respondents argued that the application was rightly rejected as the say was not annexed with the application.
Ratio Decidendi
In maintenance proceedings under Section 125 CrPC, the respondent must be given a fair opportunity to present his case. Rejecting an application to set aside a 'no say' order merely because the say was not annexed, without considering the merits of the explanation for absence, is not justified. The court should adopt a liberal approach to ensure that the right to be heard is not defeated on technical grounds.
Judgment Excerpts
It is the contention of the petitioner that on 26.6.2009 advocate for the petitioner filed an application at Exh.11 praying for setting aside 'no say' order and praying time to file say and say could not be filed because of absence of the petitioner as he was ill.
However, said application also came to be rejected by learned Judicial Magistrate First Class Kalamnuri by passing order 'The application is not annexed with the say/Ws of non applicant. Hence, not tenable, therefore rejected.'
Procedural History
The respondents filed Criminal Miscellaneous Application No.151/2008 under Section 125 CrPC before the Judicial Magistrate First Class, Kalamnuri, seeking maintenance. The petitioner appeared and sought time to file say. On the date fixed for filing say (20.6.2009), the petitioner and his advocate were absent, and the Magistrate passed an order proceeding without say. On 26.6.2009, the petitioner's advocate filed an application (Exhibit 11) to set aside the 'no say' order and for time to file say, which was rejected by the Magistrate. The petitioner then filed the present Criminal Writ Petition under Articles 226 and 227 of the Constitution of India before the Bombay High Court, Aurangabad Bench.
Acts & Sections
- Code of Criminal Procedure, 1973: 125
- Constitution of India: 226, 227
