The right to maintenance is a recurring cause of action, and the withdrawal of an earlier petition does not necessarily bar a second application under Section 125 Cr.P.C. The trial court has the power to recall a witness for re-examination under Section 311 Cr.P.C., but there must be a necessity for such recall.

Lisa Gill, J.

The petitioner is aggrieved of order dated 13.02.2017 passed by the learned District Judge (Family Court), Sonepat whereby two applications filed by the petitioner (referred to as the 2nd application and 3rd application in the impugned order) have been decided.

2. It is to be noted that there is a matrimonial dispute between the petitioner and the respondent. Proceedings in FIR No.6 dated 12.02.2012 under Sections 498A/406/420/323/506/34 IPC lodged at the behest of the respondent are pending. The respondent - wife filed a petition (bearing No.133 of 2012) under Section 125 Cr.P.C. claiming maintenance, which was dismissed as withdrawn on 15.12.2012. Thereafter another petition under Section 125 Cr.P.C. (i.e. wherefrom the present proceedings emanate) was filed by the respondent. It is stated that the respondent's application for grant of interim maintenance in the second petition under Section 125 Cr.P.C. was dismissed by the learned District Judge (Family Court), Sonepat on 10.05.2016.

3. The petitioner moved an application dated 17.12.2016 under Order 23 CPC (Annexure P3, referred to as the 2nd application in the impugned order) for dismissal of the petition filed by the respondent under Section 125 Cr.P.C. being not maintainable on the ground that once her earlier petition under Section 125 Cr.P.C. was dismissed as withdrawn without any specific liberty having been afforded to the respondent to file afresh, a second petition under Section 125 Cr.P.C. is not maintainable. Another application (Annexure P4, referred to as the 3rd application in the impugned order) was filed by the petitioner under Order 18, Rule 17 CPC and Section 138 of the Indian Evidence Act for recalling and reexamining one of his own witness RW1 Mr. B.M. Pandey.

4. Learned trial court on considering the entire facts and circumstances of the case rejected the said applications moved by the petitioner vide common impugned order dated 13.02.2017. Aggrieved therefrom, the petitioner has filed the present revision petition.

5. The petitioner vehemently argues that a second petition under Section 125 Cr.P.C. is not maintainable once the first petition has been dismissed as withdrawn without a specific permission to file afresh. He first of all refers to Section 10 of the Family Courts Act, 1984, which reads as under:-

"10. Procedure generally.-(1) Subject to the other provisions of this Act and rules, the provisions of the Code of Civil Procedure, 1908 (5 of 1908), and of any other law for the time being in force shall apply to the suits and proceedings other than the proceedings under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974), before a Family Court and for the purpose of the said provisions of the Code, a Family Court shall be deemed to be a Civil Court and shall have all the powers of such Court.

(2) Subject to the other provisions of this Act and the rules, the provisions of the Code of Criminal Procedure, 1973 (2 of 1974), or the rules made thereunder, shall apply to the proceedings under Chapter IX of the Code before a Family Court.

(3) Nothing in sub-section (1) or sub-section (2) shall prevent a Family Court from laying down its own procedure with a view to arrive at a settlement in respect of the subject-matter of the suit or proceedings or at the truth of the facts alleged by the one party and denied by the other."

The petitioner then refers to Section 257 Cr.P.C., which reads as under:-

"257. Withdrawal of complaint. If a complainant, at any time before a final order is passed in any case under this Chapter, satisfies the Magistrate that there are sufficient grounds for permitting him to withdraw his complaint against the accused, or if there be more than one accused, against all or any of them, the Magistrate may permit him to withdraw the same, and shall thereupon acquit the accused against whom the complaint is so withdrawn."

6. The petitioner on the one hand submits that provisions of the Code of Criminal Pro