Sunday, 11 October 2015

Whether proceeding for grant of maintenance U/S 125 of crpc which is dismissed in default can be restored?

A Division Bench of Punjab and Haryana High Court, in "Smt. Kamla Devi and Ors. v. Mehma Singh" MANU/PH/0646/1989, held that Magistrate can order restoration on sufficient cause being shown because proceedings under Section 125 of the Criminal Procedure Code are civil in nature. The Division Bench observed that in a way, the provisions in Chapter-IX of the Criminal Procedure Code constitute a Code of Procedure by itself. So also, in "Sk. Alauddin alias Alai Khan v. Khadiza Bibi alias Mst. Khodeja Khatun and Ors." MANU/WB/0196/1990 and "Smt. Kusum Devi v. Ram Chandra Maurya and Ors." 2004 (1) Cri153, the Calcutta and Allahabad High Courts, respectively held that order of restoration can be passed by learned Magistrate in an appropriate case when sufficient cause regarding absentia of wife is shown.
13. So far as provisions of Section 362 of the Criminal Procedure Code are concerned, it may be mentioned that the prohibition imposed is to the extent of impermissibility pertaining to alteration of judgement or final order. The recalling of dismissal order cannot be treated as alteration in the judgement or order. There is no alteration or change in the final order and, therefore, the view of the Single Bench of the Calcutta High Court in case of "Mrs. Jamana Yusuf T. Attarwala and Anr." (supra), with great respects, does not appeal to me. I am of the opinion that the provisions contained in Chapter IX of the Criminal Procedure Code are the Code in itself. Once it is found that the Criminal Court has inherent power to grant interim maintenance allowance to the wife in the exercise of powers under Section 125 of the Criminal Procedure Code, then it follows that exercise of such inherent powers can be done for setting right the wrong. The principle "ubi-jus-ibi-remedium" is attracted in such a case. Considering the nature of the proceedings and the powers which may be availed by the learned Magistrate, I am of the opinion that the impugned judgement and order of the learned Sessions Judge is improper and unsustainable.
Equivalent Citation: 2008(110)BOMLR2581, 2009CriLJ70, 2008(6)MhLj468
IN THE HIGH COURT OF BOMBAY AT AURANGABAD
Criminal Writ Petition No. 184 of 2003
Decided On: 25.07.2008
Appellants: Sau Mandakini W/o Bhausaheb Pagire
Vs.
Respondent: Bhausaheb Genu Pagire and The State of Maharashtra
Hon'ble Judges/Coram:
V.R. Kingaonkar, J.



1. By this petition, petitioner impugns judgement and order rendered by learned Sessions Judge, Ahmednagar, in Criminal Revision Application No. 139/2000 whereby and whereunder order of restoration of maintenance application bearing Cri. M.A. No. 27/1997 rendered by learned Judicial Magistrate (F.C.), Ahmednagar, came to be reversed.
2. The petitioner is wife of respondent No. 1. He filed an application (Cri. M.A. No. 27/1997) for maintenance allowance under Section 125 of the Criminal Procedure Code. The application was dismissed on 27th January, 1999 because the petitioner (wife) was found absent. She thereafter filed an application on 08-02-1999 (Cri. M.A. No. 15/1999) for restoration of the application filed under Section 125 of the Criminal Procedure Code. She asserted that she was suffering from cold and fever since 23rd January, 1999 and was, therefore, absent on the date of hearing. She further asserted that the learned Sessions Judge was misinformed that there was a settlement between the spouses. She filed Medical Certificate of a Medical Practitioner in support of the application and urged to restore the proceedings.
3. The respondent No. 1 resisted the application. The respondent No. 1 (husband) contended that the petitioner/wife deliberately remained absent on the date of hearing. He further contended that the application was not maintainable. He asserted that there was no sufficient reason for the wife to remain absent on date of hearing.
4. The petitioner - wife adduced her evidence in support of the application. As regards the cause of her illness, PW Dr. Markad was also examined. The Medical Practitioner testified that the petitioner was suffering from illness cine 23rd January, 1999 to 30th January, 1999 and was under his treatment. He corroborated Medical Certificate (Exh-15). The learned Judicial Magistrate held that there was no reason to dislodge versions of the petitioner and the Medical Officer. The learned Judicial Magistrate further held that the petitioner proved that there was sufficient cause for her absentia on the date of hearing. The learned Judicial Magistrate was, therefore, pleased to restore the maintenance application.
5. Feeling aggrieved, the respondent No. 1/husband preferred revision application (Cri. Revision No. 139/2000). The learned Sessions Judge held that the order of dismissal could not be recalled and the application could not be restored by the Criminal Court. He held that the proceedings under the Criminal Procedure Code are governed by the provisions contained in Chapter-IX of the Criminal Procedure Code and there is no provision to restore the proceedings which came to be dismissed in default. The learned Sessions Judge held that the second application was permissible and the wife could have filed such application. According to view of the learned Sessions Judge, since there is no provision in the Criminal Procedure Code for restoration of the proceedings, the learned Magistrate could not have restored the application filed under Section 125 of the Criminal Procedure Code which was dismissed in default. Hence, the revision application was allowed and the restoration order was set aside. Aggrieved thereby, the petitioner has filed the instant petition.
6. Heard counsel.
7. Mr. Garud, would submit that the proceedings under Section 125 of the Criminal Procedure are quasi civil and quasi criminal in nature and, therefore, the Criminal Court has inherent power to restore such proceedings. He would submit that the learned Sessions Judge committed error while taking dogmatic view irrespective of the nature of the proceedings. He pointed out that the proceedings of maintenance application are provided to make available speedy remedy to the wife and, therefore, technical view should not have been taken by the learned Sessions Judge. Per contra, learned advocate Mr. Pallod seeks to rely on "Md. Yusuf T. Attarwala v. Mrs. Jumana Yusuf T. Attarwala and Ors." 3 M.C. 405. A Single Bench of Calcutta High Court held that order of dismissal of the application under Section 125 of the Criminal Procedure Code, in default, cannot be recalled in view of bar under Section 362 of the Criminal Procedure Code. Mr. Pallod also seeks to rely on "Maj. Genl. A.S. Gauraya and Anr. v. S.N. Thakur and Anr." MANU/SC/0185/1986 : 1986CriLJ1074 and "Narayandas Gulabchand Agrawal v. Rakesh Kumar Nem Kumar Porwal" MANU/MH/0135/1995 : 1996(2)MhLj463 .
8. Core issue involved in this petition is whether the dismissal order in the proceedings under Section 125 of the Criminal Procedure Code can be recalled and what is the effect of Section 362 of the Criminal Procedure Code ?
9. At the outset, it is pertinent to note that the proceedings for maintenance are in the nature of civil proceedings though the criminal process is applied for the purpose of summary and speedy disposal of such matter in the interest of society. The proceedings are quasi civil in nature. For, the rights of the wife and other dependants for maintenance allowance covered under Section 125 of the Criminal Procedure Code are of civil nature. The actualisation of such rights through criminal procedure is provided for in order to make available efficacious and speedy remedy to such eligible claimants. In a way, the remedy is of hybrid character. The findings of the Magistrate under Chapter IX of the Criminal Procedure Code are not final and the parties can legitimately agitate their rights in a Civil Court. The right to receive maintenance is purely personal right, created by an order of the Criminal Court.
10. The Apex Court in "Savitri (Smt.) v. Govind Singh" MANU/SC/0104/1985 : 1986CriLJ41 , held that interim maintenance can be granted by the Criminal Court, on strength of affidavits. There is no specific provision under the Criminal Procedure code to allow grant of interim maintenance. Still however, the Apex Court held that such power is implicit under Section 125 of the Criminal Procedure Code and, therefore, interim maintenance can be granted. The two (2) cases referred by Mr. Pallod, mentioned supra, pertain to power of Magistrate to review his order of dismissal and restoration of the criminal case or a complaint case. It is true that a complaint, which is dismissed by learned Magistrate, cannot be restored under the provisions of the Criminal Procedure Code. The proceedings under Section 125 of the Criminal Procedure Code cannot be, however, compared with the proceedings of a complaint case since the former proceedings are not for purpose of fact finding of complicity in a criminal case. The very purpose of proceedings under Section 125 of the Criminal Procedure Code is to decide civil right of the claimants through the process of Criminal Procedure Code. Hence, the authorities referred to by Mr. Pallod are inapplicable to the fact situation of the present case.
11. Mr. Garud seeks to rely on "Smt. Prema Jain v. Sudhir Kumar Jain" MANU/DE/0286/1979. A Single Bench of Delhi High Court held that restoration application in such a case is maintainable because the dismissal was administrative in nature rather than a judicial one. The learned Single Judge held that the Magistrate has power to set aside dismissal order and restore the proceedings under Section 125 of the Criminal Procedure Code. I find it difficult to persuade myself by certain observations in the given case in regard to the nature of order rendered in respect of the dismissal. The dismissal order cannot be regarded as administrative one. There is no co-relation in the administrative function of the Magistrate and the dismissal order passed due to absence of the applicant (claimant). Mr. Garud further seeks to rely on "Kishanlal v. Nandlal" MANU/RH/0023/1968. It appears that a Single bench of Rajasthan High Court held that restoration of application by a Magistrate could be valid. A Single Bench of this Court held that the application for recovery of arrears of maintenance filed by destitute wife could be restored inspite of permissibility of dismissal for non-compliance under the Family Court Rules.
12. A Division Bench of Punjab and Haryana High Court, in "Smt. Kamla Devi and Ors. v. Mehma Singh" MANU/PH/0646/1989, held that Magistrate can order restoration on sufficient cause being shown because proceedings under Section 125 of the Criminal Procedure Code are civil in nature. The Division Bench observed that in a way, the provisions in Chapter-IX of the Criminal Procedure Code constitute a Code of Procedure by itself. So also, in "Sk. Alauddin alias Alai Khan v. Khadiza Bibi alias Mst. Khodeja Khatun and Ors." MANU/WB/0196/1990 and "Smt. Kusum Devi v. Ram Chandra Maurya and Ors." 2004 (1) Cri153, the Calcutta and Allahabad High Courts, respectively held that order of restoration can be passed by learned Magistrate in an appropriate case when sufficient cause regarding absentia of wife is shown.
13. So far as provisions of Section 362 of the Criminal Procedure Code are concerned, it may be mentioned that the prohibition imposed is to the extent of impermissibility pertaining to alteration of judgement or final order. The recalling of dismissal order cannot be treated as alteration in the judgement or order. There is no alteration or change in the final order and, therefore, the view of the Single Bench of the Calcutta High Court in case of "Mrs. Jamana Yusuf T. Attarwala and Anr." (supra), with great respects, does not appeal to me. I am of the opinion that the provisions contained in Chapter IX of the Criminal Procedure Code are the Code in itself. Once it is found that the Criminal Court has inherent power to grant interim maintenance allowance to the wife in the exercise of powers under Section 125 of the Criminal Procedure Code, then it follows that exercise of such inherent powers can be done for setting right the wrong. The principle "ubi-jus-ibi-remedium" is attracted in such a case. Considering the nature of the proceedings and the powers which may be availed by the learned Magistrate, I am of the opinion that the impugned judgement and order of the learned Sessions Judge is improper and unsustainable.
14. In the result, the petition is allowed and the impugned order of the learned Sessions Judge is set aside and that of the learned Magistrate is restored. The respondent No. 1 shall pay cost of Rs. 1000/- to the petitioner. The record and proceedings shall be remitted to the Court of Judicial Magistrate without any delay
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