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not M-1243 of 2013 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl.
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not M-1243 of 2013 (O&M) Date of decision:
25. 04.2013 Satish Kumar ....Petitioner Versus Babli @ Mamtesh and others ....Respondents CORAM: HON'BLE Mr.JUSTICE PARAMJEET SINGH Present: - Mr.O.P.Gupta, Advocate, for the petitioner.
Mr.Sanjay Jain, Advocate, for respondents No.1 to 4.
1) Whether Reporters of the local papers may be allowed to see the judgment ?.
2) To be referred to the Reporters or No.?.
3) Whether the judgment should be reported in the Digest ?.
***** PARAMJEET SINGH, J.
The instant petition under Section 482 Cr.P.C.has been filed for quashing of orders dated 23.11.2012 and 21.12.2012 passed by learned Sub Divisional Judicial Magistrate, Pehowa, in execution petition No.140/37 of 2011 dated 21.8.2010/16.7.2011.
Brief facts of the case are that respondents No.1 to 4 filed petition under Section 125 of the Code of Criminal Procedure (hereinafter referred to as 'the Code') against respondent No.5 i.e.husband of respondent No.1 and father of respondents No.2 to 4.
In the said petition, respondent No.5 appeared before the trial Court on 6.5.2002 and the case was adjourned.
Respondent No.5 transferred the shop in question in favour of his real brother Satish Kumar (petitioner Crl.
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not M-1243 of 2013 -2- herein) on 11.6.2002.
Respondent No.5 had to pay maintenance to respondent No.1 – wife and respondents No.2 to 4 – children to the tune of Rs.1,41,700/- till 10.5.2008.
The challenge herein is by Satish Kumar, who happens to be the real brother of respondent No.5.
The trial Court in execution of the warrants had attached the shop in question.
At that stage, the present petitioner raised objection.
During the pendency of the execution, petitioner was impleaded as respondent No.2 wherein the objection was raised and an application under Sections 125(3).421 (1)(b) of the Code read with Sections 67, 77, 75 of the Land Revenue Act.
The objection is to the effect that the petitioner is owner of the shop in question.
It was the claim of respondents No.1 to 4 that sale in favour of the brother is a fraudulent sale just to deprive respondents No.1 to 4 of their right of recovery of maintenance.
The trial Court vide impugned order allowed the amendment and notice was issued to petitioner (respondent No.2 before the executing court) and thereafter an opportunity was afforded to raise objection with regard to the sale and attachment of the shop in question.
Challenge is also to the order dated 21.11.2012 whereby application moved by the petitioner for recalling order dated 23.11.2012 has been dismissed.
Aggrieved against the two ordeRs.petitioner has approached this Court.
Learned counsel for the petitioner vehemently contended that the shop in question was sold to the petitioner and the sale is bona fide and not fraudulent not is to defeat the claim of respondents No.1 to 4 for recovery of the arrears of maintenance.
The recovery can be effected only in view of the provisions in the Code i.e.under Section 421 read with the provisions of Punjab Land Revenue Act.
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not M-1243 of 2013 -3- The contentions raised by the learned counsel for the petitioner have been vehemently opposed by the learned counsel for respondents No.1 to 4.
learned counsel for respondents No.1 to 4 vehemently contended that the sale deed in favour of the petitioner being the real brother of respondent No.5, is just to deprive respondents No.1 to 4 of recovery of maintenance.
It would be appropriate to mention herein that Chapter IX of the Code has specific provisions in the shape of Sections 125 to 128, which provide expeditious remedy of maintenance allowance to the destitute wife, children and parents of the person concerned.
In other words, it can be said that such proceedings are summary in nature and it can be said that maintenance proceedings are in the nature of civil proceedings.
Now, issue arises whether in stricto senso, provisions of the Code will apply or certain provisions of the Code of Civil Procedure can also be invoked.
Before I consider the contentions raised by the learned counsel for the parties, I would like to discuss whether the proceedings are quasi civil in nature.
Hon'ble Supreme Court in Nand Lal MiSr.versus Kanhaiya Lal Misra, AIR 196.SC 88.has observed that proceedings are of civil nature as no preliminary inquiry is needed in the application under Section 488 of the old Code which is equivalent to Section 125 of the present Code as is required in the case of complaint.
Hon'ble Kerala High Court in N.E.Vasudevan Nair versus Kalyani Amma Gouri Amma and otheRs.1970 Criminal Law Journal 1173 has also taken a similar view and held that proceedings under Section 488 of old Code are not in Crl.
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not M-1243 of 2013 -4- the nature of criminal proceedings but are civil proceedings dealt with summarily in criminal courts with the object of speedy disposal for the reasons of convenience and social order.
Perusal of Section 125 of the Code shows that an application filed by the destitute or deserted wife and children for maintenance under this Section is to be speedily decided.
Section 126 of the Code further provides that evidence in such proceedings shall be taken in the presence of the person against whom an order for payment is proposed to be made.
The proviso to sub-section 2 of this Section further provides the taking of ex parte proceedings against the person concerned and for setting aside such ex parte order for good cause being shown.
Section 127 of the Code further empowers the Magistrate to make alteration in the quantum of maintenance or vary its order on the grounds mentioned in the Section.
Section 128 of the Code lays down the procedure for enforcement of the order of maintenance.
The only ground mentioned therein is the satisfaction of the Magistrate regarding identity of the parties and the non-payment of the maintenance allowance due.
The fiRs.proviso to sub-section 3 of Section 125 further provides that application to levy of amount of maintenance can be made within one year from the date on which it becomes due.
In Smt.
Prema Jain versus Sudhir Kumar Jain, 1980 Marriage Law Journal 17, Hon'ble Delhi High Court has elaborately discussed and taken a view that order under Chapter IX is only administrative one and could be reviewed by the Magistrate on sufficient cause being shown on the analogy of provisions of Order 9 of the Code of Civil Procedure.
The bar under the Code is only from reviewing the judgment or the final order after it has been signed except to the extent of Crl.
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not M-1243 of 2013 -5- correcting the clerical or arithmetical errORS.A Division Bench of this Court in Smt.
Kamla Devi and others versus Mehma Singh, 1989(1) R.C.R.(Criminal) 476 has also taken a similar view and has held that nature of proceedings under Chapter IX of the Code is inherently concerning the civil rights i.e.grant of maintenance to the wives, children and parents.
All these orders are passed under different provisions of Chapter IX and are interim in nature and can be modified, varied or cancelled on the grounds mentioned therein.
Further such orders are subject to final ordeRs.if any, passed by the civil court regarding the maintenance.
It has been further held that although technicalities of procedure as provided in different provisions of the Code of Civil Procedure may not ipso facto apply to the proceedings initiated under Section 125 of the Code, however, such of the provisions of the Code of Civil Procedure which help in advancing the cause of justice can legitimately be adopted in the proceedings initiated under Section 125 of the Code.
In the light of the above decisions of the Hon'ble Supreme Court as well as the Division Bench of this Court, it emerges that some of the provisions of the Code of Civil Procedure, which enhance the cause of justice can be applied to the proceedings under Section 125 of the Code the proceedings being summary in nature.
These proceedings are strictly not criminal as is the case of complaint and an application under Section 125 of the Code cannot be treated as complaint.
Admittedly, in the present case maintenance was awarded to the wife and children.
The said maintenance has not been paid.
To thwart the claim of maintenance of the wife and children respondent No.5, who happens Crl.
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not M-1243 of 2013 -6- to be the real brother of the present petitioner, has transferred the shop in question vide sale deed dated 11.6.2002 (Annexure P-2) to the petitioner.
Since the sale of the property is after filing of the application for maintenance and even after appearance of respondent No.5 before the trial Court on 6.5.2002, the act of respondent No.5 is fraudulent just to deprive respondents No.1 to 4 of their right to recover the arrears of maintenance from respondent No.5.
For the reasons mentioned above, I do not find any reason to set aside the order in question whereby the attachment has been ordered for effecting recovery of maintenance.
The Hon'ble Supreme Court in Savitri versus Govind Singh Rawat, 1985 Marriage Law Journal 561, has construed the scope of Section 125 of the Code on the question of making interim order of payment of maintenance.
One of the principles laid down by the Hon'ble Supreme Court is as under: - “Whenever anything is required to be done by law and it is found impossible to do that thing unless something not authorised in express terms be also done then that something else will be supplied by necessary intendment.
x x x x x x x That in the absence of any express prohibition, it is appropriate to construe the provision in Chapter IX as conferring an implied power on the magistrate to direct the person against whom an application is made under section 125 of the Code to pay some reasonable sum by way of maintenance to the applicant pending final disposal of the application.
It is quite common that applications made under section 125 of the Code also take several months for being disposed of finally.
In order to enjoy the fruits of the Crl.
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not M-1243 of 2013 -7- proceedings under section 125, the applicant should be alive till the date of the final order and that the applicant can do in a large number of cases only if an order for payment of interim maintenance is passed by the Court.
Every Court must be deemed to possess by necessary intendment all such powers as are necessary to make its orders effective.
x x x x x x x Having regard to the nature of the jurisdiction exercised by a magistrate under section 125 of the Code, the said provision should be interpreted as conferring power by necessary implication on the magistrate to pass an order directing a person against whom an application is made under it to pay a reasonable sum by way of interim maintenance subject to the other conditions referred to therein pending final disposal of the application.”
It would be appropriate to refer to the observations of the Hon'ble Supreme Court in Shri Bhagwan Dutt versus Smt.
Kamla Devi and another, (1975) 2 S.C.R.483, which read as under: - “These provisions (sections 488, 489 and 490 of the old Code of Criminal Procedure) are intended to fulfil a social purpose.
Their object is to compel a man to perform the moral obligation which he owes to society in respect of his wife and children.
By providing a simple, speedy but limited relief, they seek to ensure that the neglected wife and children are not let beggared and destituted on the scrap help of society and thereby driven to a life of vagrancy, immorality and crime for their subsistence.
Thus, section 488 is intended to provide for a full and final determination of the status and personal rights of the parties.
The jurisdiction conferred by the section on the Magistrate is more in the nature of a preventive rather than a remedial jurisdiction; it is certainly not punitive.
As pointed out in Thompson's case 6 NNP 20.the scope of the Chapter XXXVI is limited and the Magistrate cannot, except Crl.
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not M-1243 of 2013 -8- as thereunder provided, usurp the jurisdiction in matrimonial disputes possessed by the civil Courts.
Sub-section (2) of section 489 expressly makes orders passed under Chapter XXXVI of the Code subject to any final adjudication that may be made by a civil Court between the parties regarding their status and civil rights.”
The net result of the law laid down by various Courts is to the effect that provisions of Chapter IX of the Code are intended to fulfil a social purpose.
Their object is to compel a man to perform the moral obligation which he owes to society in respect of his wife and children.
By providing a simple, speedy but limited relief, they seek to ensure that the neglected wife and children are not let beggared and destituted on the scrap help of society and thereby driven to a life of vagrancy, immorality and crime for their subsistence.
Section 125 is intended to provide for immediate relief to the applicant.
Sub-section (4) of Section 127 of the Code specifically makes the orders passed under Chapter IX of the Code subject to any full and final determination by the civil Court regarding status and civil rights of the parties.
In view of this, no ground for quashing of orders dated 23.11.2012 and 21.12.2012 is made out.
Dismissed.
(Paramjeet Singh) Judge April 25, 2013 R.S.