IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 22.02.2021 CORAM THE HONOURABLE MR.JUSTICE P.VELMURUGAN Crl.R.C.No.102 of 2021 and Crl.M.P.No.1878 of 2021 Nisar Ahamad ... Petitioner Vs.

1.Jeenath Nisha

2.Minor.Naseer Ahamad, S/o.Nisar Ahamad, Minor 2nd respondent represented by his mother or next friend Jeenath Nish Both are residing at D.No.11/8, Ayyanar Kovil Street, Prabhu Nagar, Salem-8. ... Respondent PRAYER: Criminal Revision Petition filed under Sections 397 r/w 401 of Criminal Procedure Code, to set aside the order dated 09.01.2020 made in C.M.P.No.142 of 2019 in M.C.No.10 of 2018 on the file of Family Court, Salem, and to allow the Criminal Revision Petition.

For Petitioner : Mr.C.Prabakaran For Respondent : Mr.R.Suryaprakash Government Advocate *****

ORDER The petitioner is the husband and the respondents 1 and 2 are his wife and and minor son respectively. The respondents have filed a petition under Section 125 Cr.P.C., before the learned Family Judge, Salem in M.C.No.10 of 2018 for maintenance. After service of summon, the petitioner failed to appear before the Court below. Hence, the learned Family Judge, Salem passed an exparte order dated 06.03.2019. Thereafter, the petitioner has filed a petition under Order 9 Rule 7 of C.P.C in C.M.P.No.102 of 2020 in M.C.No.10 of 2018 to set aside the exparte order dated 06.03.2019 and the same was allowed by the learned Family Judge, Salem, by order, dated 09.12.2019 with cost of Rs.5,000/- to be paid to the respondents, failing which the order would stand dismissed. The petitioner did not pay the cost of Rs.5,000/- and failed to comply with the order dated 09.12.2020 and hence, the petition was dismissed by order, dated 09.01.2020, which is under challenge before this Court.

2.The learned counsel for the petitioner would submit that the 1st respondent was subjected to cruelty by the petitioner and his in-laws is false. The 1st respondent voluntarily left the matrimonial house and living with her parents and the same has to be decided only in the maintenance case. He would further submit that soon after passing an exparte decree, the petitioner immediately filed the petition under 9 Rule 7 of C.P.C., to set aside the exparte decree. The learned Family Judge failed to consider the same and imposed a cost of Rs.5,000/- to be paid to the respondent which warrants interference of this Court.

3.Heard and perused the records.

4.Since the Criminal Revision is against the conditional order passed by the learned Family Judge, Salem, no notice is necessary to the respondents. Therefore, this Court is inclined to dispose of the revision at the admission stage itself.

5.Admittedly, the petitioner is the husband and father of the respondents

1 and 2 respectively. Since the maintenance case was pending from the year 2018, the learned Family Judge, Salem passed exparte order in the year 2019 considering the scope of Section 125 Cr.P.C., and also the petitioner did not appear before the Court below. Subsequently, the petitioner has filed a petition under Order 9 Rule 7 of C.P.C., in C.M.P.No.142 of 2019 in M.C.No.10 of 2018 to set aside the exparte order dated 06.03.2019. The learned Family Judge, Salem, by order, dated 09.12.2019 allowed the petition and imposed a cost of Rs.5,000/- to be paid to the respondents and the same was not paid by the petitioner. Due to non payment of cost, the petition in C.M.P.No.142 of

2019 in M.C.No.10 of 2018 has been dismissed.

6.Considering the nature of litigations pending between the parties, this Court is of the view that the petitioner, who has delayed the maintenance case is liable to pay the cost imposed by the learned Family Judge, Family Court, Salem. It is seen that in this case, the minor son is involved and therefore, whatever dispute between the petitioner and the first respondent, they have to sort out their grievance before the competent Court and the minor son has to be necessarily maintained by his father. Therefore, this Court is inclined to set