The main legal point established in the judgment is that the Family Court has the inherent power to recall and restore a proceeding under Section 125 Cr.P.C. even in the absence of a specific provision in the Cr.P.C.

JUDGMENT

R.K. Pattanaik, J. - The petitioner has approached this Court assailing the correctness of the impugned order under Annexure-1 dated 7th June, 2022 passed in CRP No.117 of 2019 by the learned Judge, Family Court, Cuttack on the ground that restoration of the application under Section 125 Cr.P.C. dismissed for non-prosecution could not have been entertained since the court cannot recall or review its order in view of Section 362 Cr.P.C.

2. As claimed by the petitioner, opposite party No.1 wife filed an application under Section 125 Cr.P.C. in the Family Court registered as CRP No.89 of 2015, however, since no steps were taken repeatedly, it was dismissed for default, whereafter, restoration thereof was applied through CRP No.117 of 2019 in terms of Section 126 Cr.P.C. followed by a request to condone the delay in terms of Section 5 of the Limitation Act later to which the petitioner was summoned and on his appearance, he filed an objection by claiming that a proceeding under Section 125 Cr.P.C. cannot be restored to file and the court as is not vested with any inherent power has become functus officio after passing of the final order, hence, it cannot recall or review the dismissal order in view of the bar envisaged in Section 362 Cr.P.C. However, the learned Judge, Family Court, Cuttack entertained the application for restoration and proceeded to hold that the question of limitation to be decided at a later stage on receiving evidence since it is a mixed question of fact and law. It is the said decision of the Family Court vide order 7th June, 2022 is under challenge at the behest of the petitioner.

3. Heard Mr. Devashis Panda, learned counsel for the petitioner and Ms. Anima Ku. Dei, learned counsel for the opposite parties.

4. Mr. Panda, learned counsel for the petitioner cited a decision in the case of Md. Yusuf T.Attarwala Vrs. Jumana Yusuf T.Attarwala and Another MANU/WB/0128/1987: I (1988) DMC 442 to contend that the Family Court did not have the power to restore the proceeding or entertain an application in that regard since it had become functus officio after the final order of dismissal. Ms. Dei, learned counsel for the opposite parties however would submit that an action for maintenance is basically in the nature of civil proceeding and in case of its dismissal for default, the same can be restored to file and while contending so, Ms. Dei refers to a decision in the case of Kehari Singh Vrs. The State of U.P. and Smt. Rekha Singh (2005) CriLJ 2330.

5. The seminal question is whether the learned Family Court could have received and entertained the application for restoration of the proceeding under Section 125 Cr.P.C?

6. Admittedly, opposite party No.1 did not turn up, as a result of which, the proceeding under Section 125 Cr.P.C. was dismissed for default, whereafter, restoration was moved by her and it was received and entertained by the Family Court which has been challenged on the ground that there is no any provision in the Cr.P.C. to restore the proceeding once dismissed for non-prosecution. In Md. Yusuf T. Attarwala (supra), the Calcutta High Court expressed a view that there is no jurisdiction to restore a proceeding under Section 125 Cr.P.C. when it is dismissed for default. However, the Allahabad High Court in Kehari Singh (supra) was of the view that an application under Section 125 Cr.P.C. claiming maintenance cannot be termed as a complaint as the definition of word 'complaint' as occurring in Section 2(d) Cr.P.C. cannot be borrowed. While referring to a decision of Andhra Pradesh High Court in Abdul Wahed Vrs. Hafeeza Begum and Others 1987 CriLJ 726, the Allahabad High Court in said decision concluded that the maintenance proceeding can be restored to file by recalling or setting aside the order of dismissal for effective adjudication and its disposal on merit. In Kehari Singh (supra), other citations in Shabihul Hasan Jafari Vrs. Zarin Fatma (2000) CriLJ 3051 and Sk. Alauddin@ Alai Khan Vrs. Khadiza