IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 13.09.2022 Coram:

THE HONOURABLE MR. JUSTICE P.VELMURUGAN Criminal Revision Case No. 1 326 of 2022 and Crl.M.P.No.14173 of 2022 Gopalakannan ... Petitioner Vs.

1.Raman

2.Perumal ... Respondents Prayer: Criminal Revision filed under Section 397 and 401 of Criminal Procedure Code, to call for the records of the entire proceedings order passed in Cr.M.P.No.114 of 2021 in M.C.No.59 of 2017, on the file of Family Court at Dharmapuri and to set aside the same.

For Petitioner : Mr.D.Senthil Kumaar

ORDER

The Criminal Revision Case has been filed seeking to set aside the order in Cr.M.P.No.114 of 2021 in M.C.No.59 of 2017, on the file of Family Court at Dharmapuri.

2. The 1^st respondent is father, the petitioner is his son. The 1^st respondent has filed a maintenance case in M.C.No.59 of 2017 on the file of the Family Judge, Dharmapuri, against the petitioner for maintenance under Section 125 Cr.P.C. While pending maintenance case, the petitioner has filed a petition in C.M.P.No.114 of 2021 to implead his brother in the maintenance case, who is one of the sons of the 1^st respondent, by invoking Order 1 Rule 10 CPC. The Family Court dismissed the said petition on the ground that invoking Order 1 Rule 10 C.P.C. is not applicable to the maintenance case. Challenging the said order, the petitioner has filed the present revision before this Court. 3. The learned counsel for the petitioner submitted that the case filed under Section 125 Cr.P.C. is civil in nature. Even the Hon'ble Supreme Court time and again has reiterated the legal position that claiming maintenance under Section 125 Cr.P.C. is civil in nature. Further he would submit that 1^st respondent/father has got yet another son, the proposed party/the 2^nd respondent herein and even 10 years before filing of the Maintenance case, the petitioner along with his mother and sisters was sent out from the house by the 1^st respondent/father and that petitioner has been looking after the family and given his sisters in marriage and now living with his mother. He would submit that since the 2^nd respondent is well to do in the family, he also has responsibility to maintain the 1^st respondent/father. Therefore, the 2^nd respondent is a necessary party to the maintenance case and he has to be impleaded. Unfortunately, the Family Court failed to appreciate the legal position and simply dismissed the petition for invoking wrong provisions of law. Therefore, the revision has to be allowed.

4. Heard the learned counsel for the petitioner and perused the materials on record.

5. It is settled proposition that quoting a wrong provision is not a sole ground to disallow the petition while any claim is made by any one of the parties. However, in this case, the petitioner is the son, the 1^st respondent is his father. The 1^st respondent has filed the maintenance against his son/the petitioner herein for maintenance. Though the learned counsel for the petitioner has taken several grounds, all that can be agitated only in the maintenance case.

6. Whether the other son of the 1^st respondent has to be impleated in this case or not; whether the provisions in the Civil Procedure Code can be applied in the maintenance case or not; Though Section 125 Cr.P.C. is civil in nature, the legislatures have made provisions only in the Code of Criminal Procedure and not in the Code of Civil Procedure. Therefore, when a criminal complaint is filed before the Magistrate then, only the Code of Criminal Procedure has to be adopted. Therefore, the the contention of the petitioner that since the maintenance case is civil in nature, he can also adopt the code of Civil Procedure, is not acceptable.

7. There is no quarrel with the nature of the dispute. Admittedly the maintenance case is civil in nature. However, no petition under Order 1 Rule 10 C.P.C. can be invoked in the maintenance case. Order 1 Rule 10 C.P.C. is clear that a person whether he is necessary party or not, without his presence