Chinnappaiyan vs Chinnathayee on 3 February, 2010

Madras High Court

Chinnappaiyan vs Chinnathayee on 3 February, 2010

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED :- 03..02..2010

CORAM

THE HONOURABLE MR. JUSTICE S.NAGAMUTHU

Crl. R.C.No.780 of 2006

and
M.P.No.1 of 2006
Chinnappaiyan
S/o.Chellandi
.... Petitioner
Vs.
Chinnathayee
W/o.Chinnappaiyan
... Respondent

Memorandum of Grounds of Criminal Revision Petition filed under Sections 397 r/w 401 of

For petitioner : Mr.V.Bharathidasan

For respondent (s): Mrs.Hema Sampath

Mr.V.Padmanabhan, SC
Amicus Curiae

ORDER

An interesting question, "whether the Court, before which a proceeding under Section 125 of the
Code of Criminal Procedure, 1973 is pending, can permit the litigant to amend the petition?" has
arisen for consideration?

2. Claiming to be the wife of the petitioner, the respondent herein filed M.C.No.12 of 2004 on the
file of the Judicial Magistrate No.II, Mettur Dam, Salem District for maintenance. In the said
petition, she had alleged that the marriage between her and the petitioner was celebrated on 10th
Vaigasi (Tamil month) about 29 years ago and a child was born to them on 10th Vaigasi in the year
1976. In the counter affidavit filed by the petitioner herein before the trial Court, the marriage as
well as the birth of the child to them were denied.

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 Chinnappaiyan vs Chinnathayee on 3 February, 2010

3. Subsequently, the respondent filed a petition (disposed of unnumbered) seeking to permit her to
amend the said petition with reference to the age of the respondent and that of the petitioner, the
date of marriage between them and few more details regarding certain immovable properties owned
by the petitioner. It was opposed by the petitioner by filing a counter thereby mainly contending that
there is no provision enabling such amendment; and that if the amendment is, for any reason,
allowed, it would change the very character of the petition and therefore, the same should not be
allowed. Having considered the above rival submissions, the learned Magistrate by order dated
21.04.2006 allowed the petition. Aggrieved over the same, the respondent therein is now before this
Court with this revision.

4. The first and foremost contention of the learned counsel for the petitioner is that there is no
provision in the Code of Criminal Procedure empowering the Magistrate to entertain such a petition
for amendment. He would submit that the concept of amendment is unknown to criminal law.

5. Per contra, the learned counsel appearing for the respondent would submit that though there is
no specific provision in the Code, in the light of the fact that there is no specific prohibition for
entertaining such amendment petition, the trial Court was right in entertaining the petition for
amendment. He would further submit that the amendment sought for would not change the
character of the claim made and would not cause any prejudice to the petitioner. He would,
therefore, pray for dismissal of the revision.

6. Since the question of law involved has public importance, this Court requested
Mr.V.Padmanabhan, learned senior counsel to assist this Court as an Amicus Curiae. Accordingly,
he rendered assistance.

7. He would submit that since the proceeding under Section 125 of the Code is quasi-civil in nature
though there is no specific provision for amendment available in the Code, such amendment could
be permitted. He would rely on various judgements of the Hon'ble Supreme Court as well as this
court about which I would make reference at the appropriate places of this judgement.

8. I have considered the rival submissions. Before going into the other aspects of the issues involved,
let me, at first, discuss about the nature of the proceedings under Section 125 of the Code. No doubt,
it is a social legislation to protect the women/children/parents, who are in need of support. When
such claim for maintenance is made under the personal law, the right is decided by the Civil Court.
Only with a view to have a speedy disposal of such claims for maintenance, having regard to the
urgent need of the victims of desertion and neglect, the Parliament thought it fit to incorporate the
provision to enable the victims to claim maintenance through the criminal court. Thus, though a
petition under Section 125 (1) of the Code is made before the criminal court - as defined under
Section 6 of the Code essentially, the right that is decided by the said Court is purely civil in nature.
Therefore, undoubtedly, the order made by the Magistrate under Section 125 (1) of the Code for
maintenance is the culmination of such a civil right of an individual. But, Section 125(3) of the Code
empowers the Court to impose a sentence of imprisonment, in the event of failure to obey such
order made under Section 125(1) of the Code. To this extent, the proceeding is criminal in nature. To
put it comprehensively, a proceeding initiated under Section 125 of the Code is quasi-civil and

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 Chinnappaiyan vs Chinnathayee on 3 February, 2010

quasi-criminal. The Hon'ble Supreme Court has held so in several judgements. Regarding the
procedure for making claim before the Court for maintenance, what is filed under Section 125 (1) of
the Code is pure and simple a petition and not a complaint as defined in Section 2(d) of the Code.
This would again indicate that a proceeding under Section 125 of the Code is treated as a quasi-civil
and quasi criminal proceeding.

9. It is true that to amend either a complaint or a petition filed under the provisions of the Code,
there is no specific provision in the said Code. But, the courts have held that petitions seeking such
amendment to correct the curable infirmities, can be allowed even in respect of complaints. In this
regard, a reference may usefully be made to the following judgements.

10. In U.P. Pollution Control Board v. Messrs Modi Distillery and others, (1987) 3 SCC 684, wherein
the name of the company was wrongly mentioned in the complaint (i.e.) instead of M/s.Modi
Industries Limited, the name of the company was mentioned as M/s.Modi Distillery. In such a
situation, the Hon'le Supreme Court held as follows:-

"The learned single Judge has focussed the attention only on the technical flaw in the complaint and
has failed to comprehend that the flaw had occurred due to the recalcitrant attitude of Messrs Modi
Distillery and furthermore the infirmity is one which could be easily removed by having the matter
remitted to the Chief Judicial Magistrate with a direction to call upon the appellant to make the
formal amendments to the averments contained n paragraph 2 of the complaint so as to make the
controlling company of the industrial unit figure as the concerned accused in the complaint. All that
has to be done is the making of a formal application for amendment by the appellant for leave to
amend by substituting the name of Messrs Modi Industries Limited, the company owning the
industrial unit, in place of Messrs Modi Distillery. ............."

"......We have already pointed out that the technical flaw in the complaint is attributable to the
failure of the industrial unit to furnish the requisite information called for by the Board.
Furthermore, the legal infirmity is of such a nature which could be easily cured. ....."

11. A close reading of the above judgement of the Hon'ble Supreme Court would make one to easily
understand that the Hon'ble Supreme Court, in the given set of facts, was of the view that the legal
infirmity therein was such a nature which could be easily cured by means of a formal application for
amendment. The words "formal amendment" and "easily cured" are to be underscored. This makes
it abundantly clear that if the infirmity is of such a nature which cannot be easily cured or if the
amendment is not a formal one, it goes without saying that such amendment cannot be entertained.

12. Relying on the above judgement, while dealing with an identical situation, this Court in
M/s.Egmore Benefit Society Limited v. K.Balasigamani, 1998 (II) CTC 372, has held that in the
event of the defect being a curable one, such amendment of the complaint can be permitted. Very
recently, a learned single Judge of this Court in K.K.Saravanakumar v. V.Saravanan, 2009 2 L.W.
(Crl.) 1105, after having noticed the above judgement of the Hon'ble Supreme Court, in para 9 of the
judgement has held as follows:-

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"It is well settled that the paramount consideration is the dispensation of justice and nothing should
result in prejudice to the accused by condoning such mistakes made in the complaint. The
Magistrate without any authority or power has allowed the complaint to make corrections in the
complaint, after taking the complaint on cognizance. It is purely an illegality committed by the
Magistrate. "

13. A perusal of the judgements of the Hon'ble Supreme Court as well as this Court cited supra
would make one thing clear (i.e.,) if the amendment sought to be made relates to a simple infirmity,
which is curable by means of a formal amendment, and by allowing such amendment no prejudice
would be caused to the other side, notwithstanding the fact that there is no enabling provision in the
Code for entertaining such amendment, the Court may permit such amendment to be made. To the
contrary, if the amendment sought to be made in the complaint does not relate either to a curable
infirmity or the same cannot be corrected by a formal amendment or if there is likelihood of
prejudice to the other side, then, the Court shall not allow such amendment in the complaint.

14. When the Courts have taken such a consistent view that a formal amendment in respect of
curable infirmity could be allowed even in a complaint, which is purely criminal, in my considered
opinion, such amendment can certainly be allowed in a proceeding under Section 125 of the Code
which is quasi civil. In view of the above I hold that the learned Magistrate has power to entertain a
petition for amendment.

15. The learned counsel for the petitioner has brought to my notice a judgement of a learned single
Judge of this Court in Nallan v. Palaniammal, 1999 (1) L.W. (Crl.) 259 wherein it has been held as
follows:-

"6. ......... Whatever it may be, the objection of the Revision petitioner is that there is no provision in
Section 125 of Cr.P.C. to amend the maintenance petition. This objection is also untenable for the
following reasons. There is no provision in section 125 of Cr.P.C. to grant interim maintenance. Even
then the Supreme Court in the decision reported in Savithiri v. Govind Singh (AIR 1986 SC 984 =
1986 L.W. (Crl.) 1) held that interim maintenance pending final disposal of the maintenance
proceeding under Section 125 of Cr.P.C. can be granted and such an order may also be made in an
appropriate case ex-parte.

7. Similarly, there is no provision in Section 125 of Cr.P.C. to set aside the ex parte order of
maintenance passed against the husband, but there is a proviso to Section 126 of Cr.P.C. to set aside
ex parte order. The Supreme Court in the decision reported in Mohammed Naim Sidiqui v. Sulthana
Kattoon [1983 SCC (Crl.) 50] laid down that where in a case under Section 125 Cr.P.C. the matter
was decided against the husband ex parte, but the husband was not served with notice, then the ex
parte order can be set aside.

8. A similar situation arose in another case though not an identical one with the present case under
Section 125 of Cr.P.C. That was a case where I have dealt with the question of the substitution of
authorised representative of a Company, who filed a private complaint and that was the decision
reported in Raasi Cement Limited v. Prithviraj (1997 Crl. L.J. 4631) wherein at page 4633 and in

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para 5 of my judgement I have stated as follows:-

"According to the learned Magistrate, there is no specific provision of law under which the
substitution can be filed and allowed. ....... In the interest of justice, such applications like the
petition to accept the sureties, the petition for the return of the documents by the sureties and the
petition for advancement of the hearing of an application are being entertained by the Magistrates
Court, it is also reasonable to entertain an application for substitution of a representative in respect
of a private company to prosecute its complaint in the absence of specific provision of law. This view
is in consonance with the decision of the Supreme Court reported in K.M.Mathew v. State of Kerala
[1992 L.W. (Crl.) 14] = 1992 Crl.L.J. 3779 wherein it was held that no specific provision of law is
required for a Magistrate to drop the proceedings or to rescind the process in a summon case and it
is the judicial discretion of the Magistrate to allow such proceedings....."

9. Thus it follows from the above decisions that even though there is no specific provision of law but
in the interest of justice and by exercising the discretionary power, the Magistrate can even allow an
amendment petition in the maintenance petition filed under Section 125 of Cr.P.C. setting out some
more pleadings. The question as to whether further pleadings by way of amendment are true or not
true, is a matter for consideration and appraisal of evidence by the trial Magistrate and not by the
Revisional Court like this Court while exercising the powers of Revision under Section 401 and 397
of Cr.P.C. Therefore, I find that there is no illegality or impropriety in the order passed by the
learned Judicial Magistrate at Musiri in the amendment petition in Crl.M.P.No.2128/97 in
M.C.No.19/96 on 22.12.1997 and so the order dated 22.12.1997 cannot be set aside. However, the
learned Magistrate can permit the petitioner/husband to file an additional counter statement in
view of the amendment that will be carried out in the main maintenance petition. Hence, I hold that
this Revision Petition has to be dismissed, and consequently, I answer this point as against the
petitioner/husband."

16. Similar view has been taken by Kerala High Court in Sainulabdheen v. Beena, 2004 CRI. L.J.
2351, wherein the Kerala High Court has also held that there is no specific prohibition in the Code of
Criminal Procedure in allowing amendment of a petition filed under Chapter IX of the Code of
Criminal Procedure.

17. All the above three judgements would clearly indicate that almost judicial opinion is uniform that
a petition for amendment of a petition filed under Section 125 of the Code is maintainable, but only
on certain situations as indicated supra. I am in full agreement with the same.

18. Now, the next question is, whether on facts in the case on hand, such amendment could be
allowed or not. Since it is held that such proceeding is quasi civil in nature, the law laid down by the
Hon'ble Supreme Court relating to amendment of plaint in civil suits can be taken note of as a
guidance to decide as to whether in the given set of facts such amendment could be allowed. It is
well settled by the Hon'ble Supreme Court that if the amendment sought for would change the
nature and character of the suit or proceedings, the same shall not be allowed. In the case on hand,
it is stated that the date of marriage, the date of birth of the child and certain other details relating to
the immovable properties belonging to the petitioner have been erroneously mentioned due to

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inadvertence. Allowing such amendment to cure the said mistakes, in my considered opinion, will
not change either the nature or the character of the proceeding. After such amendment is made, the
petitioner herein may file additional counter, if any. After all the respondent has to prove by cogent
and convincing evidence the factum of marriage, the birth of the child out of such marriage and the
income of the petitioner, etc. In such view of the matter, I am of the view that the learned Magistrate
was right in allowing the petition for amendment, which does not call for any interference at the
hands of this Court.

19. In the result, this revision fails and the same is dismissed. Consequently, connected MP is closed.

kmk To

1.The Judicial Magistrate No.II, Mettur Dam

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