| SooperKanoon Citation | sooperkanoon.com/614489 |
| Subject | Criminal |
| Court | Punjab and Haryana High Court |
| Decided On | Oct-06-1977 |
| Judge | K.S. Tiwana, J. |
| Reported in | 1978CriLJ604 |
| Appellant | Smt. Tejinder Kaur |
| Respondent | Balbir Singh |
| Cases Referred | K. Raza Khan v. Mumtaz Khatoon |
K.S. Tiwana, J.
1. Tejinder Kaur petitioner has filed this application Under Section 482 of the Criminal P. C. (hereinafter referred to as the new Code) and Article 227 of the Constitution of India for quashing the orders of the Judicial Magistrate I Class, Lothian dated April 25, 1975 dismissing her application for maintenance Under Section 125 of the new Code and also against the order of the learned Additional Sessions Judge, Ludhiana, dated May 28, 1976, dismissing her revision against the order of the Judicial Magistrate.
2. The facts of the case are that the petitioner filed an application Under Section 125 of the new Code in the Court of the Judicial Magistrate I Class Ludhiana, against Balbir Singh, respondent, stating that she is the legally wedded wife of the respondent. The marriage was performed in Feb. 1967 at Ludhiana. After the marriage, she and the respondent lived as husband and wife at Shankar, Delhi, Ludhiana and other places. The respondent used to press upon her to get money from her parents whenever he was in necessity. Whenever she failed to get the money from her parents, she was maltreated. During general election to the Punjab Legislative Assembly, held in 1972, the respondent contested the election as a Congress candidate. For his election campaign, he was in need of money and pressed her to get it from her parents. Their marital relations got strained on her failure to provide money to the respondent. Because of ill-treatment ai the hands of the respondent, her health deteriorated. On the medical advice for a change of climate, she proceeded to United States of America. Taking advantage of her absence from India, the respondent filed a suit against her in the Civil Court at Nakodar, stating that she was not his legally wedded wife and as such there was no relationship of husband and wife between them. The petitioner got information about these proceedings and rushed back from the USA and appeared in the Court in the case on Dec. 13, 1972 to contest the proceedings. Feeling frustrated in his attempt to get decree and of the fear of being prosecuted for false verification of the plaint, the respondent absented himself from the Court on Jan. 8, 1973. His counsel pleaded no instructions in the case and his suit was dismissed. Thereafter the petitioner made unsuccessful attempts to meet the respondent. She came to know from newspaper reports that he had remarried with another girl.
3. As the petitioner, according to her averments in the petition, was not possessed of sufficient means to maintain herself and the respondent neglected and refused to maintain her, she filed an application in the Court of the Judicial Magistrate I Class, Ludhiana, Under Section 125 of the new Code for the award of maintenance.
4. The respondent in his reply took a preliminary objection that the pet: tioner had no locus standi to file the petition because of the decree of competent Civil Court which was binding on them to the effect that the petitioner had been restrained from proclaiming herself to be the wife of the respondent and as such, she was not entitled to claim maintenance.
5. The learned Magistrate tried the case on the preliminary objection and in view of the ex parte decree of the Civil Court which; respondent had obtained subsequent to the dismissal of the civil suit on Jan. 8, 1973, dismissed the application of the petitioner for maintenance, holding that she could not file it in the capacity of the wife of the respondent. The learned Magistrate further held that the petitioner could not file maintenance proceedings as a divorced wife. In the revision filed by the petitioner, the learned Additional Sessions Judge, Ludhiana, held that the petitioner, in view of the decree of the Civil Court, restraining her to proclaim herself as wife of the respondent, could not file any application in her capacity as wife or even as a divorced wife. The present petition has been filed by the petitioner against those orders, stating that those are contrary to law contained in Section 125 of the new Code.
6. The learned Counsel for the respondent at the outset raised an objection that the inherent and supervisory powers of this Court cannot be invoked in this ease after the revision of the petitioner has been dismissed by the Additional Se-ions Judge. According to him, at least the facts do not justify such an interference. It is true, that this Court, exercising inherent and supervisory jurisdiction, does not convert itself into a Court of appeal to correct the errors of fact. It is to see that the subordinate Courts function within the limits of their jurisdiction to interpret the law correctly and not in a manner which amounts to negation of the provisions of law, resulting into miscarriage of justice. The Supreme Court in 1977 SCC (Crl) 404 : 1977 Cri LJ 1126, State of Karnataka v. L. Munis-wamy observed that the proceedings and the orders of the subordinate Courts can be quashed in the interest of justice. It further observed that the ends of justice are higher than the ends of law, though justice has got to be adminstered according to- the law made by the Legislature.
7. The only point requiring decision in this case is whether the petitioner, in spite of the decree of the Civil Court, restraining her to proclaim herself as wife of the respondent (which she is making efforts to set aside) falls within the ambit of 'wife' as defined in explanation (b) of Section 125(1) of the new Code and the ease is such in which invoking the inherent and supervisory powers of this Court the orders dismissing her application can be quashed. The relevant provisions of Section 125 of the new Code are as under :
If any person having sufficient means neglects or refuses to maintain :
(a) his wife, unable to maintain herself, or
(b) __ __ __ __
(c) - - - -
(d) - - - -
a Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, father or mother, at such monthly rate, not exceeding five hundred rupees in the whole, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to time direct:
Explanation-for the purposes of this chapter:
(a) - - - -
(b) 'wife' includes a woman who has been divorced, or, has obtained a divorce from, her husband and has not remarried.
8. Section 125 of the new Code' has replaced Section 488 of the Criminal P. C, 1898 (hereinafter called the old Code). Section 125 which is a provision of general application provides for a right of maintenance in favour of the persons specified in Sub-section (1) of Section 125 which includes certain categories of persons who did not have such a right under the old Code. Section 488 of the old Code did not have any explanation of the word 'wife' as has been added in Section 125 of the new Code in Chapter IX. 'Wife' normally means a person who is tied in a marital bondage to a man. She ceases to be a wife as soon as the relationship is put to an end by any law, custom or usage applicable to the parties. Normally marital obligations like maintenance come to an end with the dissolution of marriage or divorce. In many cases, the right of maintenance of the wives was defeated by the husbands by resorting to divorce in anticipation of the claim for maintenance. This social problem which was assuming alarming proportions in our society came to the pointed attention of the Legislature at the time the new Code was being enacted. The Joint Committee of the Parliament made a report about this aspect of the social evil in these words:
The benefit of the provisions should be extended to a woman who has been divorced from her husband, so long as she has not remarried after the divorce, The Committee's attention was drawn to some instances in which, after a wife filed a petition under this section on the ground of neglect or refusal on the part of her husband to maintain her, the unscrupulous husband frustrated her object by divorcing her forthwith thereby compelling the Magistrate to dismiss the petition. Such divorce can be made easily under the personal laws applicable to some of the communities in India. This causes special hardship to the poorer .sections of the community who become helpless. The amendments made by the Committee are aimed at securing social justice to women in our society belonging to the poorer classes.
This report makes it clear that the provision for giving an extended meaning to the word 'wife' was not accidental. This beneficial provision was made, keeping in view the social conditions of our society.
9. Though the jural relationship of husband and wife comes to an end by divorce, yet Section 125 of the new Code creates the fictional relationship between a man and a woman only for the purpose of maintenance to attain the object of the provision, i. e. to prevent vagrancy and starvation of the divorced wives so long as they do not remarry. Tn 1975 Mad LJ (Cri) 703 : 1976 Cri LJ 905 (An Pra), K. Raza Khan v. Mumtaz Khatoon it was held (at Page 907 of Cri LJ):
A plain reading of Section 125 of the new Code shows that a woman who has been divorced by her husband or who has obtained a divorce, from her husband can also claim maintenance, if she is unable to maintain herself. The section does not say that the woman should have been divorced after the new Code has come into force and there is no warrant to read any such limitation in the section. Therefore, it applies both to women who have been divorced before or after the new Code came into force. The Criminal P. C. has not only dealt with the procedure but has also conferred a right in this regard. Under the correspondings Section 488 of the old Criminal P. C. 1898, a wife had a right to maintenance but a divorced wife did not have. For the first time, that right is conferred upon her under the new Code and it is in accord with social justice....
In 1977 Mah LJ 231 : 1977 Cri LJ 1041, Rukhsana Parvin, v. Shaikh Mahomed Hussain Mahmod Akbar, it was observed as under (at 1044 of Cri LJ):.There is no doubt that a divtsuced wife who has not remarried is erotiAled to apply for maintenance Under Section 125 of the new Code, but it is only me part of Chapter IX of the new Code which contains the whole scheme contemplaifced by the new Code regulating the right of maintenance. Therefore, the provisions of Sections 125 to 128, which are contained im Chapter IX, and which together constitute the entire scheme regarding to the right of maintenance contemplated by the Parliament while enacting the new Code, will, therefore, have to be considered as a whole and if there is any apparent conflict between any of the provisions in that Chapter, those provisions 'will have to be harmoniously construed. In fact in our view, there is no conflict whatsoever between the provisions of Sections 125 and 127(3)(b) of the new Code. Section 125 provides for a right of maintenance in favour of the person specified in Section 125(1), which includes certain categories of persons when did not have such a right under the old Code.
10. I am in agreement with these judgments to hold that a divorced wife has a right of maintenance from her husband Under Section 125 of the new Code. The word 'wife' also includes even a wife divorced by her husband prior to the coming into force of the new Code to claim maintenance provided that other conditions are satisfied.
11. The next question is whether in the case in hand, the decree of the Civil Court restraining the petitioner to proclaim herself as wife of the respondent has any effect on her right to file a petition for maintenance Under Section 125 of the New Code. Literally, there is no difference between a divorce under custom, or personal law and a divorce granted by a decree. The effect of the divorce is that the wife does not remain a wife and a husband does not remain a husband and they cease to perform mutual obligations as spouses. In spite of this position of the parties under the civil law, personal law and custom governing them, the general provisions of law Under Section 125 of the new Code defines the word 'wife' as reproduced above. This fictional relationship has been created by the statute in view of the social conditions prevalent in the country to prevent quondam husbands to drive their ex-wives to a state of poverty and destitution till they (wives) remarry. Explanation (b) to Section 125(1) of the new Code is of wide connotation and the phraseology shows that it does not only include a wife who has been divorced by her husband, but also includes a wife who has herself obtained a divorce. The intent of the explanation is, therefore, manifest and includes a wife divorced before or after the coming into force of the new Code. The language in which this definition has been couched is very pertinent and has to be given effect. The ex parte decree obtained by the respondent, which will remain binding on the parties till it is set aside, does not have any effect on the case of the petitioner in filing a claim for maintenance Under Section 125 of the new Code provided she satisfies other conditions. Section 125(1). Explanation (b) of the new Code does not create a separate entity of the divorced wife as she is included in the word 'wife'. The divorced wives are not required to split this definition and style themselves as separate entity as divorced wives in their maintenance applications. In the case in hand, a reading of the petitioner's claim application shows that the petitioner claimed ignorance of any such decree which was obtained by the respondent. The learned trial Magistrate was not correct to dismiss the petition by directing her to claim maintenance as a divorced wife, an entity outside Explanation (b) to Section 125(1) of the new Code. There is no conflict between Section 127(3) and Section 125(1) of the new Code. The learned Additional Sessions Judge, in revision came to a completely incorrect conclusion which, in. my view was not only inconsistent, but is in contradiction to the new definition of 'wife' as provided in Section 125 of the new Code.
12. The dismissal of the application by both the subordinate Courts in violation of the provisions of Section 125(1) Explanation (b) of the new Code by giving a completely untenable interpretation of the word 'wife, amounts to a negation of the new provisions giving an extended meaning of this word, in view of the report of the Joint Committee of the Parliament. The orders under consideration have resulted into miscarriage of justice. The facts of the case are such which require interference by this Court Under Section 482 of the new Code. The orders under challenge are hereby quashed and the case is sent back to the same trial Court for deciding it on merits. The learned Magistrate, however, will determine the points of controversy raised by the parties in the petition and the reply. The parties through their counsel are required to put in appearance before the learned Judicial Magistrate at Ludhiana on 15-11-1977.