Harbhajan Kaur Vs. Sant Singh - Court Judgment

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	'title_for_layout' => 'Harbhajan Kaur Vs Sant Singh - Citation 681173 - Court Judgment | ',
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			'id' => '681173',
			'acts' => '<a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 133, 134, 134(1) and 226; <a href="/act/133280/code-of-criminal-procedure-1898-complete-act">Code of Criminal Procedure (CrPC) , 1898</a> - Sections 342, 488, 488(3) and 488(6)',
			'appealno' => 'Criminal Misc. (SCA) No. 855 of 1968',
			'appellant' => 'Harbhajan Kaur',
			'authreffered' => '',
			'casename' => 'Harbhajan Kaur Vs. Sant Singh',
			'casenote' => ' (i) 
Criminal Procedure Code (V of 1898)- Section 488--Proceedings under--nature of--are criminal proceedings and nto Civil proceedings.; The proceedings envisaged by  Chapter xxxvI of the Code cannto be considered 
purely civil proceedings, though the person in default, against whom maintenance order is sought, may nto be an accused person, whose examination without oath is mandatory as prescribed by section 342 of the Code and he may be entitled to appear as a witness as 
well.; Chapter 7-A of Vol. III of Rules and Orders of the Punjab High Court dealing with the maintenance cases also recites that proceedings under section 488 of the Code of Criminal Procedure are of criminal character and the provisions contained therein must, thereforee, be strictly followed.; (ii) Constitution of India - Article 134--Proceedings under Section 488 within the contemplation of--expression--'Criminal proceedings'--scope of.;  That the proceedings under Section 488 Cr. P.C. do fall within the contemplation of criminal proceedings within the meaning of Article 134. 
The expression 'Criminal Proceedings' in this Article is wide enough to include maintenance proceedings adjucated upon by Magistrate initiated under Chapter xxxvI. Such maintenance proceedings are criminal proceedings designed by way of summary process to provide to deserted wives and neglected children adjudication of their civil right of maintenance up to a limited amount enforceable through criminal courts, to avoid the notorious delays of civil proceedings, which may still be utilised for fuller relief under the general law 
in the ordinary civil courts. - Section 13: [Altamas Kabir & Cyriac Joseph,JJ] Custody of child - Welfare of child vis--vis comity of Courts - The minor girl child of 3 1/2 years was brought to India by her mother. The minor girl was a citizen of U.K. being born in U.K. her parents had set up their matrimonial home in U.K. and had acquired status of permanent residents of U.K. The child with her mother was supposed to return to U.K. but the mother cancelled her tickets and remained behind in India. The husband thereupon started procededings before the High Court of Justice, Family Division. U.K. praying for an order that the minor child be made a ward of the Court and for a direction upon the wife to return the minor child to the jurisdiction of the said Court. A further direction was given for the passport and other international travel documents of the minor child to be handed over to the Solicitors of the husband. A petition seeking protection of minor child was thereupon filed by father of the husband before Delhi High Court. A direction for handing over custody of child to father of husband was also sought. The High Court considering fact that the U.K. court was already in seisin of  matter and had passed an interim order and by relying on principle of comity of Nations and Comity of Judgments of the courts of two different countries in deciding the matter directed the wife to take the child of her own to U.K.or hand it over to father of husband to be taken to U.K. as measure of interim custody and that it would be for the U.K. Court to decide the question of custody  -  Order was challenged by wife -  Held, the order of High Court was not liable to be interfered with. Although, on first impression, it would appear that the interests of the minor child would best be served if she is allowed to remain with the wife, the order of U.K. court cannot be lost sight of., The order of U.K. Court except for insisiting that the minor be returned to its jurisdiction, the English Court did not intend to separate the child from the mother until a final decision was taken with regard to the custody of the child. The ultimate decision in that regard has to be left to the English Court having regard to the nationality of the child and the fact that both the parents had worked for gain in the U.K. and had also acquired permanent resident status in the U.K. English Court has not directed that the custody of the child should be handed over to  the father but that the child should be returned to the jurisdiction of the Courts in the U.K. which would then proceed to determine as to who would be best suited to have the custody of the child. The High Court has taken into consideration both the questions relating to the Comity of Courts as well as the interest of the minor child, which, no doubt, is one of the most important considerations in matters relating to custody of a minor child.  -  Provided that, if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if ho is satisfied that there is just ground for so doing. Provided that if the Magistrate is satisfied that he is willfully avoiding service, or willfully neglects to attend the Court, the Magistrate may proceed to hear and determine the case ex parte. Any order so made may be set aside for good cause shown, on application made within three months from the date thereof. It is obvious that the proceedings envisaged by Chapter xxxvi of the Code cannto be considered to be purely civil proceedings, though the person in default, against whom maintenance order is sought, may nto be an accused person whose examination without oath is mandatory as prescribed by Section 342 of the Code and he may be entitled to appear as a witness as well. I am aware of some conflict of judicial opinion in some old cases where on the ground that the procedure of trying maintenance applications being that of a summons case, failure to examine the person proceeded against under Section 342 of the Code, was held to vitiate the proceedings, but that conflict was set at rest by later decisions in which this section was held inapplicable to proceedings under S. These proceedings seem to me to be clearly criminal proceedings and I find no logical and rational basis for holding them to be civil proceedings so as to exclude the applicability of Article 134 of the Constitution. The difference between the relative scope of a civil revision and of a criminal revision is well known and revision against an order under Section 488, Cr. The children in these proceedings may, if they are so advised, even now apply to a competent Court under Section 488 for maintenance and if they make out a good claim to the satisfaction of the Court, I have nto the least doubt that suitable orders would be made in accordance with law.',
			'caseanalysis' => null,
			'casesref' => 'Kapur Singh v. Union of India;',
			'citingcases' => '',
			'counselplain' => ' O.P. Sharma, Adv',
			'counseldef' => ' Madan Bhatia, Adv.',
			'court' => 'Delhi',
			'court_type' => 'HC',
			'decidedon' => '1968-12-17',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' I.D. Dua, C.J.',
			'judgement' => '<p style="text-align: justify;">1. In this application for a certificate of fitness for appeal to the Supreme Court from an order made on revision by this Court in proceedings under Section 488, Cr. P. C, a preliminary objection has been raised that Article 134(1)(c) of the Constitution is inapplicable because proceedings under Section 488 are civil proceedings and nto criminal proceedings. Reliance in support of this preliminary objection has been placed on a decision of the Supreme Court in Nand Lal Misra v. K.L. Misra, : 1960CriLJ1246 . Emphasis has been laid on the observations In this Judgment that Chapter xxxvi of the Code of Criminal Procedure is a self-contained one and the relief given under it is essentially of a civil nature. From this sentence, it is sought to be argued that the proceedings under section 488 are civil proceedings and nto criminal proceedings. Reliance has also been placed on a still more recent Judgment of the Supreme Court in Narayan Row v. Ishwar Lal, : [1965]57ITR149(SC) , in which while dealing with an appeal from an order made by the Bombay High Court under Article 226 of the Constitution, in a matter pertaining to recovery of income-tax, it was observed that the proceedings were civil proceedings within the meaning of Article 133(1)(c) of the Constitution. Reference has next been made to a Full Bench decision of the Punjab High Court in Kapur Singh v. Union of India, where also the question about the nature of proceedings under Articles 133 and 226 of the Constitution came up for discussion. In my opinion, none of these decisions throw helpful light on the question which the preliminary objection poses. Section 488 reads as under:</p><p style="text-align: justify;">'488. Order for maintenance of wives and children.--(1) If any person having sufficient means neglects or refuses to maintain his wife or his legitimate or illegitimate child unable to maintain itself, the District Magistrate, a Presidency Magistrate, a Sub-Divisional Magistrate or 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, at such monthly rate, nto exceeding five hundred rupees in the whole, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate from time to time directs.</p><p style="text-align: justify;"> (2) Such allowance shall be payable from the date of the order, or if so ordered from the date of the application for maintenance.</p><p style="text-align: justify;"> (3) If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in manner hereinbefore provided for levying fines, and may sentence such person, for the whole or any part of each month's allowance remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made:</p><p style="text-align: justify;"> Provided that, if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if ho is satisfied that there is just ground for so doing.</p><p style="text-align: justify;"> If a husband has contracted marriage with another wife or keeps a mistress, it shall be considered to be just ground for his wife's refusal to live with him:</p><p style="text-align: justify;"> Provided, further that no warrant shall be issued for the recovery of any amount due under this direction unless application be made to the Court to levy such amount within a period of one year from the date on which it became due.</p><p style="text-align: justify;"> (4) No wife shall be entitled to receive an allowance from her husband under this section if she is living in adultery, or if, without any sufficient reason she refuses to live with her husband, or if they are living separately by mutual consent.</p><p style="text-align: justify;"> (5) On proof that any wife in whose favor an order has been made under this section is living in adultery, or that without sufficient reason she refuses to live with her husband, or that they are living separately by mutual consent, the Magistrate shall cancel the order.</p><p style="text-align: justify;"> (6) All evidence under this Chapter shall be taken in the presence of the husband or father, as the case may be, or, when his personal attendance is dispensed with, in the presence of his pleader, and shall be recorded in :he manner prescribed in the case of summons-cases:</p><p style="text-align: justify;"> Provided that if the Magistrate is satisfied that he is willfully avoiding service, or willfully neglects to attend the Court, the Magistrate may proceed to hear and determine the case ex parte. Any order so made may be set aside for good cause shown, on application made within three months from the date thereof.</p><p style="text-align: justify;"> (7) The Court in dealing with applications under this section shall have power to make such order as to costs as may be just.</p><p style="text-align: justify;"> (8) Proceedings under this section may be taken against any person in any district where he resides or is, or where he last resided with his wife or, as the case may be, the mother of the illegitimate child.' </p><p style="text-align: justify;">It is obvious that it confers power to order maintenance, on District Magistrates, Presidency Magistrates, Sub-Divisional Magistrates and Magistrates of the 1st Class: Courts which are indisputably criminal Courts and nto civil Courts. Sub-section (6) provides that all evidence under this Chapter has to be taken in the presence of the husband or father, as the case may be, or when his personal attendance is dispensed with, in the presence of his pleader and it is to be recorded in the manner prescribed in the case of summons-cases. This is a further indication that the proceedings are criminal proceedings and nto civil proceedings. The argument that there is no penalty imposed by this section and the proceedings thereforee, cannto be described as 'criminal' is also unacceptable because according to Section 488(3), which provides for enforcement of orders, in certain circumstances, the person in default can be imprisoned for a term which may extend to one month or until payment, if sooner made, though I should nto be understood to hold this consideration to be conclusive on the point either way. It is obvious that the proceedings envisaged by Chapter xxxvi of the Code cannto be considered to be purely civil proceedings, though the person in default, against whom maintenance order is sought, may nto be an accused person whose examination without oath is mandatory as prescribed by Section 342 of the Code and he may be entitled to appear as a witness as well. I am aware of some conflict of judicial opinion in some old cases where on the ground that the procedure of trying maintenance applications being that of a summons case, failure to examine the person proceeded against under Section 342 of the Code, was held to vitiate the proceedings, but that conflict was set at rest by later decisions in which this section was held inapplicable to proceedings under S. 488. However, consistently all the Courts dealing with that question had assumed that the proceedings were criminal proceedings governed by the Code of Criminal Procedure, both in regard to the trial and the power of revision of the Court of the Sessions Judge and of the High Court.</p><p style="text-align: justify;">2. Chapter 7-A of Vol. Iii of Rules and Orders of the Punjab High Court dealing with the maintenance cases also recites that proceedings under Section 488 of the Code of Criminal Procedure are of a criminal character and the provisions contained therein must, thereforee, be strictly followed. Keeping in view the scheme of Chapter xxxvi of the Code of Criminal Procedure and also the scheme of Articles 133 and 134 of the Constitution, I have little hesitation in holding that proceedings under Section 488, Cr. P. C., do fall within the contemplation of criminal proceedings within the meaning of Article 134. The expression 'criminal proceedings' in this Article, seems to me to be wide enough to include maintenance proceedings adjudicated upon by Magistrates initiated under Chapter xxxvI. Such maintenance proceedings are, in my view, criminal proceedings, designed by way of summary process to provide to deserted wives and neglected children, adjudication of their civil right of maintenance up to al limited amount, enforceable through criminal Courts, to avoid the notorious delays of civil proceedings, which may still be utilised for fuller relief under the general law in the ordinary civil Courts.</p><p style="text-align: justify;">3. And then, what directly concerns this Court is the question of the nature of the proceedings on revision in this Court. These proceedings seem to me to be clearly criminal proceedings and I find no logical and rational basis for holding them to be civil proceedings so as to exclude the applicability of Article 134 of the Constitution. Nto only are they registered in this Court as criminal revisions but they are also presented in this Court under the Cr. P. C. and nto under the Civil P. C. The difference between the relative scope of a civil revision and of a criminal revision is well known and revision against an order under Section 488, Cr. P. C. has never been held to my knowledge to be a civil revision so as to exclude the applicability of Art. 134(1)(c) of the Constitution. The preliminary objection is, thereforee, nto easy to sustain.</p><p style="text-align: justify;">4. Coming now to the merits, the learned counsel for the petitioner has very strongly argued that according to Section 488 of the Code, a separate order should have been made granting maintenance to the children. In my opinion, the question which concerns this Court in this present proceedings is nto so much as to what should have been done by the Magistrate while dealing with Section 488, Cr. P. C., but whether there is any such infirmity in the order of this Court as would justify a certificate of fitness within the contemplation of Article 134(1)(c) of the Constitution. It is nto argued, and it cannto be argued, that clause (a) or clause (b) of Article 134(1) covers this case. Clause (c) of this sub-article postulates a case in which a difficult question involving an unsettled principle requires to be finally determined by the Supreme Court. That does nto seem to be the case before me, and indeed no attempt has been made to show that there is any question of principle involved in the impugned order which requires authoritative decision by the Supreme Court. But this apart, the grant of maintenance in this case is a tentative order and it is always open to the authorities to ask for re-consideration and re-determination on account of change of circumstances. The children in these proceedings may, if they are so advised, even now apply to a competent Court under Section 488 for maintenance and if they make out a good claim to the satisfaction of the Court, I have nto the least doubt that suitable orders would be made in accordance with law. The revision on their behalf was held to be barred by time and this Court did nto consider it proper to exercise its suo motu power of revision in this regard. There is no decision on the merits against them by this Court and it has nto been shown that the impugned decision is based on any wrong principle of law which requires further examination by the Supreme Court.</p><p style="text-align: justify;">5. For the foregoing reasons, this application fails and is dismissed.</p><p style="text-align: justify;">6. Application dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => 'AIR1969Delhi298; 1969CriLJ1243; ILR1968Delhi545',
			'ratiodecidendi' => '',
			'respondent' => 'Sant Singh',
			'sub' => 'Criminal;Constitution',
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			'circuit' => null
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$title_for_layout = 'Harbhajan Kaur Vs Sant Singh - Citation 681173 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '681173',
		'acts' => '<a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 133, 134, 134(1) and 226; <a href="/act/133280/code-of-criminal-procedure-1898-complete-act">Code of Criminal Procedure (CrPC) , 1898</a> - Sections 342, 488, 488(3) and 488(6)',
		'appealno' => 'Criminal Misc. (SCA) No. 855 of 1968',
		'appellant' => 'Harbhajan Kaur',
		'authreffered' => '',
		'casename' => 'Harbhajan Kaur Vs. Sant Singh',
		'casenote' => ' (i) 
Criminal Procedure Code (V of 1898)- Section 488--Proceedings under--nature of--are criminal proceedings and nto Civil proceedings.; The proceedings envisaged by  Chapter xxxvI of the Code cannto be considered 
purely civil proceedings, though the person in default, against whom maintenance order is sought, may nto be an accused person, whose examination without oath is mandatory as prescribed by section 342 of the Code and he may be entitled to appear as a witness as 
well.; Chapter 7-A of Vol. III of Rules and Orders of the Punjab High Court dealing with the maintenance cases also recites that proceedings under section 488 of the Code of Criminal Procedure are of criminal character and the provisions contained therein must, thereforee, be strictly followed.; (ii) Constitution of India - Article 134--Proceedings under Section 488 within the contemplation of--expression--'Criminal proceedings'--scope of.;  That the proceedings under Section 488 Cr. P.C. do fall within the contemplation of criminal proceedings within the meaning of Article 134. 
The expression 'Criminal Proceedings' in this Article is wide enough to include maintenance proceedings adjucated upon by Magistrate initiated under Chapter xxxvI. Such maintenance proceedings are criminal proceedings designed by way of summary process to provide to deserted wives and neglected children adjudication of their civil right of maintenance up to a limited amount enforceable through criminal courts, to avoid the notorious delays of civil proceedings, which may still be utilised for fuller relief under the general law 
in the ordinary civil courts. - Section 13: [Altamas Kabir & Cyriac Joseph,JJ] Custody of child - Welfare of child vis--vis comity of Courts - The minor girl child of 3 1/2 years was brought to India by her mother. The minor girl was a citizen of U.K. being born in U.K. her parents had set up their matrimonial home in U.K. and had acquired status of permanent residents of U.K. The child with her mother was supposed to return to U.K. but the mother cancelled her tickets and remained behind in India. The husband thereupon started procededings before the High Court of Justice, Family Division. U.K. praying for an order that the minor child be made a ward of the Court and for a direction upon the wife to return the minor child to the jurisdiction of the said Court. A further direction was given for the passport and other international travel documents of the minor child to be handed over to the Solicitors of the husband. A petition seeking protection of minor child was thereupon filed by father of the husband before Delhi High Court. A direction for handing over custody of child to father of husband was also sought. The High Court considering fact that the U.K. court was already in seisin of  matter and had passed an interim order and by relying on principle of comity of Nations and Comity of Judgments of the courts of two different countries in deciding the matter directed the wife to take the child of her own to U.K.or hand it over to father of husband to be taken to U.K. as measure of interim custody and that it would be for the U.K. Court to decide the question of custody  -  Order was challenged by wife -  Held, the order of High Court was not liable to be interfered with. Although, on first impression, it would appear that the interests of the minor child would best be served if she is allowed to remain with the wife, the order of U.K. court cannot be lost sight of., The order of U.K. Court except for insisiting that the minor be returned to its jurisdiction, the English Court did not intend to separate the child from the mother until a final decision was taken with regard to the custody of the child. The ultimate decision in that regard has to be left to the English Court having regard to the nationality of the child and the fact that both the parents had worked for gain in the U.K. and had also acquired permanent resident status in the U.K. English Court has not directed that the custody of the child should be handed over to  the father but that the child should be returned to the jurisdiction of the Courts in the U.K. which would then proceed to determine as to who would be best suited to have the custody of the child. The High Court has taken into consideration both the questions relating to the Comity of Courts as well as the interest of the minor child, which, no doubt, is one of the most important considerations in matters relating to custody of a minor child.  -  Provided that, if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if ho is satisfied that there is just ground for so doing. Provided that if the Magistrate is satisfied that he is willfully avoiding service, or willfully neglects to attend the Court, the Magistrate may proceed to hear and determine the case ex parte. Any order so made may be set aside for good cause shown, on application made within three months from the date thereof. It is obvious that the proceedings envisaged by Chapter xxxvi of the Code cannto be considered to be purely civil proceedings, though the person in default, against whom maintenance order is sought, may nto be an accused person whose examination without oath is mandatory as prescribed by Section 342 of the Code and he may be entitled to appear as a witness as well. I am aware of some conflict of judicial opinion in some old cases where on the ground that the procedure of trying maintenance applications being that of a summons case, failure to examine the person proceeded against under Section 342 of the Code, was held to vitiate the proceedings, but that conflict was set at rest by later decisions in which this section was held inapplicable to proceedings under S. These proceedings seem to me to be clearly criminal proceedings and I find no logical and rational basis for holding them to be civil proceedings so as to exclude the applicability of Article 134 of the Constitution. The difference between the relative scope of a civil revision and of a criminal revision is well known and revision against an order under Section 488, Cr. The children in these proceedings may, if they are so advised, even now apply to a competent Court under Section 488 for maintenance and if they make out a good claim to the satisfaction of the Court, I have nto the least doubt that suitable orders would be made in accordance with law.',
		'caseanalysis' => null,
		'casesref' => 'Kapur Singh v. Union of India;',
		'citingcases' => '',
		'counselplain' => ' O.P. Sharma, Adv',
		'counseldef' => ' Madan Bhatia, Adv.',
		'court' => 'Delhi',
		'court_type' => 'HC',
		'decidedon' => '1968-12-17',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' I.D. Dua, C.J.',
		'judgement' => '<p>1. In this application for a certificate of fitness for appeal to the Supreme Court from an order made on revision by this Court in proceedings under Section 488, Cr. P. C, a preliminary objection has been raised that Article 134(1)(c) of the Constitution is inapplicable because proceedings under Section 488 are civil proceedings and nto criminal proceedings. Reliance in support of this preliminary objection has been placed on a decision of the Supreme Court in Nand Lal Misra v. K.L. Misra, : 1960CriLJ1246 . Emphasis has been laid on the observations In this Judgment that Chapter xxxvi of the Code of Criminal Procedure is a self-contained one and the relief given under it is essentially of a civil nature. From this sentence, it is sought to be argued that the proceedings under section 488 are civil proceedings and nto criminal proceedings. Reliance has also been placed on a still more recent Judgment of the Supreme Court in Narayan Row v. Ishwar Lal, : [1965]57ITR149(SC) , in which while dealing with an appeal from an order made by the Bombay High Court under Article 226 of the Constitution, in a matter pertaining to recovery of income-tax, it was observed that the proceedings were civil proceedings within the meaning of Article 133(1)(c) of the Constitution. Reference has next been made to a Full Bench decision of the Punjab High Court in Kapur Singh v. Union of India, where also the question about the nature of proceedings under Articles 133 and 226 of the Constitution came up for discussion. In my opinion, none of these decisions throw helpful light on the question which the preliminary objection poses. Section 488 reads as under:</p><p>'488. Order for maintenance of wives and children.--(1) If any person having sufficient means neglects or refuses to maintain his wife or his legitimate or illegitimate child unable to maintain itself, the District Magistrate, a Presidency Magistrate, a Sub-Divisional Magistrate or 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, at such monthly rate, nto exceeding five hundred rupees in the whole, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate from time to time directs.</p><p> (2) Such allowance shall be payable from the date of the order, or if so ordered from the date of the application for maintenance.</p><p> (3) If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in manner hereinbefore provided for levying fines, and may sentence such person, for the whole or any part of each month's allowance remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made:</p><p> Provided that, if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if ho is satisfied that there is just ground for so doing.</p><p> If a husband has contracted marriage with another wife or keeps a mistress, it shall be considered to be just ground for his wife's refusal to live with him:</p><p> Provided, further that no warrant shall be issued for the recovery of any amount due under this direction unless application be made to the Court to levy such amount within a period of one year from the date on which it became due.</p><p> (4) No wife shall be entitled to receive an allowance from her husband under this section if she is living in adultery, or if, without any sufficient reason she refuses to live with her husband, or if they are living separately by mutual consent.</p><p> (5) On proof that any wife in whose favor an order has been made under this section is living in adultery, or that without sufficient reason she refuses to live with her husband, or that they are living separately by mutual consent, the Magistrate shall cancel the order.</p><p> (6) All evidence under this Chapter shall be taken in the presence of the husband or father, as the case may be, or, when his personal attendance is dispensed with, in the presence of his pleader, and shall be recorded in :he manner prescribed in the case of summons-cases:</p><p> Provided that if the Magistrate is satisfied that he is willfully avoiding service, or willfully neglects to attend the Court, the Magistrate may proceed to hear and determine the case ex parte. Any order so made may be set aside for good cause shown, on application made within three months from the date thereof.</p><p> (7) The Court in dealing with applications under this section shall have power to make such order as to costs as may be just.</p><p> (8) Proceedings under this section may be taken against any person in any district where he resides or is, or where he last resided with his wife or, as the case may be, the mother of the illegitimate child.' </p><p>It is obvious that it confers power to order maintenance, on District Magistrates, Presidency Magistrates, Sub-Divisional Magistrates and Magistrates of the 1st Class: Courts which are indisputably criminal Courts and nto civil Courts. Sub-section (6) provides that all evidence under this Chapter has to be taken in the presence of the husband or father, as the case may be, or when his personal attendance is dispensed with, in the presence of his pleader and it is to be recorded in the manner prescribed in the case of summons-cases. This is a further indication that the proceedings are criminal proceedings and nto civil proceedings. The argument that there is no penalty imposed by this section and the proceedings thereforee, cannto be described as 'criminal' is also unacceptable because according to Section 488(3), which provides for enforcement of orders, in certain circumstances, the person in default can be imprisoned for a term which may extend to one month or until payment, if sooner made, though I should nto be understood to hold this consideration to be conclusive on the point either way. It is obvious that the proceedings envisaged by Chapter xxxvi of the Code cannto be considered to be purely civil proceedings, though the person in default, against whom maintenance order is sought, may nto be an accused person whose examination without oath is mandatory as prescribed by Section 342 of the Code and he may be entitled to appear as a witness as well. I am aware of some conflict of judicial opinion in some old cases where on the ground that the procedure of trying maintenance applications being that of a summons case, failure to examine the person proceeded against under Section 342 of the Code, was held to vitiate the proceedings, but that conflict was set at rest by later decisions in which this section was held inapplicable to proceedings under S. 488. However, consistently all the Courts dealing with that question had assumed that the proceedings were criminal proceedings governed by the Code of Criminal Procedure, both in regard to the trial and the power of revision of the Court of the Sessions Judge and of the High Court.</p><p>2. Chapter 7-A of Vol. Iii of Rules and Orders of the Punjab High Court dealing with the maintenance cases also recites that proceedings under Section 488 of the Code of Criminal Procedure are of a criminal character and the provisions contained therein must, thereforee, be strictly followed. Keeping in view the scheme of Chapter xxxvi of the Code of Criminal Procedure and also the scheme of Articles 133 and 134 of the Constitution, I have little hesitation in holding that proceedings under Section 488, Cr. P. C., do fall within the contemplation of criminal proceedings within the meaning of Article 134. The expression 'criminal proceedings' in this Article, seems to me to be wide enough to include maintenance proceedings adjudicated upon by Magistrates initiated under Chapter xxxvI. Such maintenance proceedings are, in my view, criminal proceedings, designed by way of summary process to provide to deserted wives and neglected children, adjudication of their civil right of maintenance up to al limited amount, enforceable through criminal Courts, to avoid the notorious delays of civil proceedings, which may still be utilised for fuller relief under the general law in the ordinary civil Courts.</p><p>3. And then, what directly concerns this Court is the question of the nature of the proceedings on revision in this Court. These proceedings seem to me to be clearly criminal proceedings and I find no logical and rational basis for holding them to be civil proceedings so as to exclude the applicability of Article 134 of the Constitution. Nto only are they registered in this Court as criminal revisions but they are also presented in this Court under the Cr. P. C. and nto under the Civil P. C. The difference between the relative scope of a civil revision and of a criminal revision is well known and revision against an order under Section 488, Cr. P. C. has never been held to my knowledge to be a civil revision so as to exclude the applicability of Art. 134(1)(c) of the Constitution. The preliminary objection is, thereforee, nto easy to sustain.</p><p>4. Coming now to the merits, the learned counsel for the petitioner has very strongly argued that according to Section 488 of the Code, a separate order should have been made granting maintenance to the children. In my opinion, the question which concerns this Court in this present proceedings is nto so much as to what should have been done by the Magistrate while dealing with Section 488, Cr. P. C., but whether there is any such infirmity in the order of this Court as would justify a certificate of fitness within the contemplation of Article 134(1)(c) of the Constitution. It is nto argued, and it cannto be argued, that clause (a) or clause (b) of Article 134(1) covers this case. Clause (c) of this sub-article postulates a case in which a difficult question involving an unsettled principle requires to be finally determined by the Supreme Court. That does nto seem to be the case before me, and indeed no attempt has been made to show that there is any question of principle involved in the impugned order which requires authoritative decision by the Supreme Court. But this apart, the grant of maintenance in this case is a tentative order and it is always open to the authorities to ask for re-consideration and re-determination on account of change of circumstances. The children in these proceedings may, if they are so advised, even now apply to a competent Court under Section 488 for maintenance and if they make out a good claim to the satisfaction of the Court, I have nto the least doubt that suitable orders would be made in accordance with law. The revision on their behalf was held to be barred by time and this Court did nto consider it proper to exercise its suo motu power of revision in this regard. There is no decision on the merits against them by this Court and it has nto been shown that the impugned decision is based on any wrong principle of law which requires further examination by the Supreme Court.</p><p>5. For the foregoing reasons, this application fails and is dismissed.</p><p>6. Application dismissed.<p></p><p>',
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		'respondent' => 'Sant Singh',
		'sub' => 'Criminal;Constitution',
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	'title_for_layout' => 'Harbhajan Kaur Vs Sant Singh - Citation 681173 - Court Judgment | ',
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			'id' => '681173',
			'acts' => '<a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 133, 134, 134(1) and 226; <a href="/act/133280/code-of-criminal-procedure-1898-complete-act">Code of Criminal Procedure (CrPC) , 1898</a> - Sections 342, 488, 488(3) and 488(6)',
			'appealno' => 'Criminal Misc. (SCA) No. 855 of 1968',
			'appellant' => 'Harbhajan Kaur',
			'authreffered' => '',
			'casename' => 'Harbhajan Kaur Vs. Sant Singh',
			'casenote' => ' (i) 
Criminal Procedure Code (V of 1898)- Section 488--Proceedings under--nature of--are criminal proceedings and nto Civil proceedings.; The proceedings envisaged by  Chapter xxxvI of the Code cannto be considered 
purely civil proceedings, though the person in default, against whom maintenance order is sought, may nto be an accused person, whose examination without oath is mandatory as prescribed by section 342 of the Code and he may be entitled to appear as a witness as 
well.; Chapter 7-A of Vol. III of Rules and Orders of the Punjab High Court dealing with the maintenance cases also recites that proceedings under section 488 of the Code of Criminal Procedure are of criminal character and the provisions contained therein must, thereforee, be strictly followed.; (ii) Constitution of India - Article 134--Proceedings under Section 488 within the contemplation of--expression--'Criminal proceedings'--scope of.;  That the proceedings under Section 488 Cr. P.C. do fall within the contemplation of criminal proceedings within the meaning of Article 134. 
The expression 'Criminal Proceedings' in this Article is wide enough to include maintenance proceedings adjucated upon by Magistrate initiated under Chapter xxxvI. Such maintenance proceedings are criminal proceedings designed by way of summary process to provide to deserted wives and neglected children adjudication of their civil right of maintenance up to a limited amount enforceable through criminal courts, to avoid the notorious delays of civil proceedings, which may still be utilised for fuller relief under the general law 
in the ordinary civil courts. - Section 13: [Altamas Kabir & Cyriac Joseph,JJ] Custody of child - Welfare of child vis--vis comity of Courts - The minor girl child of 3 1/2 years was brought to India by her mother. The minor girl was a citizen of U.K. being born in U.K. her parents had set up their matrimonial home in U.K. and had acquired status of permanent residents of U.K. The child with her mother was supposed to return to U.K. but the mother cancelled her tickets and remained behind in India. The husband thereupon started procededings before the High Court of Justice, Family Division. U.K. praying for an order that the minor child be made a ward of the Court and for a direction upon the wife to return the minor child to the jurisdiction of the said Court. A further direction was given for the passport and other international travel documents of the minor child to be handed over to the Solicitors of the husband. A petition seeking protection of minor child was thereupon filed by father of the husband before Delhi High Court. A direction for handing over custody of child to father of husband was also sought. The High Court considering fact that the U.K. court was already in seisin of  matter and had passed an interim order and by relying on principle of comity of Nations and Comity of Judgments of the courts of two different countries in deciding the matter directed the wife to take the child of her own to U.K.or hand it over to father of husband to be taken to U.K. as measure of interim custody and that it would be for the U.K. Court to decide the question of custody  -  Order was challenged by wife -  Held, the order of High Court was not liable to be interfered with. Although, on first impression, it would appear that the interests of the minor child would best be served if she is allowed to remain with the wife, the order of U.K. court cannot be lost sight of., The order of U.K. Court except for insisiting that the minor be returned to its jurisdiction, the English Court did not intend to separate the child from the mother until a final decision was taken with regard to the custody of the child. The ultimate decision in that regard has to be left to the English Court having regard to the nationality of the child and the fact that both the parents had worked for gain in the U.K. and had also acquired permanent resident status in the U.K. English Court has not directed that the custody of the child should be handed over to  the father but that the child should be returned to the jurisdiction of the Courts in the U.K. which would then proceed to determine as to who would be best suited to have the custody of the child. The High Court has taken into consideration both the questions relating to the Comity of Courts as well as the interest of the minor child, which, no doubt, is one of the most important considerations in matters relating to custody of a minor child.  -  Provided that, if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if ho is satisfied that there is just ground for so doing. Provided that if the Magistrate is satisfied that he is willfully avoiding service, or willfully neglects to attend the Court, the Magistrate may proceed to hear and determine the case ex parte. Any order so made may be set aside for good cause shown, on application made within three months from the date thereof. It is obvious that the proceedings envisaged by Chapter xxxvi of the Code cannto be considered to be purely civil proceedings, though the person in default, against whom maintenance order is sought, may nto be an accused person whose examination without oath is mandatory as prescribed by Section 342 of the Code and he may be entitled to appear as a witness as well. I am aware of some conflict of judicial opinion in some old cases where on the ground that the procedure of trying maintenance applications being that of a summons case, failure to examine the person proceeded against under Section 342 of the Code, was held to vitiate the proceedings, but that conflict was set at rest by later decisions in which this section was held inapplicable to proceedings under S. These proceedings seem to me to be clearly criminal proceedings and I find no logical and rational basis for holding them to be civil proceedings so as to exclude the applicability of Article 134 of the Constitution. The difference between the relative scope of a civil revision and of a criminal revision is well known and revision against an order under Section 488, Cr. The children in these proceedings may, if they are so advised, even now apply to a competent Court under Section 488 for maintenance and if they make out a good claim to the satisfaction of the Court, I have nto the least doubt that suitable orders would be made in accordance with law.',
			'caseanalysis' => null,
			'casesref' => 'Kapur Singh v. Union of India;',
			'citingcases' => '',
			'counselplain' => ' O.P. Sharma, Adv',
			'counseldef' => ' Madan Bhatia, Adv.',
			'court' => 'Delhi',
			'court_type' => 'HC',
			'decidedon' => '1968-12-17',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' I.D. Dua, C.J.',
			'judgement' => '<p style="text-align: justify;">1. In this application for a certificate of fitness for appeal to the Supreme Court from an order made on revision by this Court in proceedings under Section 488, Cr. P. C, a preliminary objection has been raised that Article 134(1)(c) of the Constitution is inapplicable because proceedings under Section 488 are civil proceedings and nto criminal proceedings. Reliance in support of this preliminary objection has been placed on a decision of the Supreme Court in Nand Lal Misra v. K.L. Misra, : 1960CriLJ1246 . Emphasis has been laid on the observations In this Judgment that Chapter xxxvi of the Code of Criminal Procedure is a self-contained one and the relief given under it is essentially of a civil nature. From this sentence, it is sought to be argued that the proceedings under section 488 are civil proceedings and nto criminal proceedings. Reliance has also been placed on a still more recent Judgment of the Supreme Court in Narayan Row v. Ishwar Lal, : [1965]57ITR149(SC) , in which while dealing with an appeal from an order made by the Bombay High Court under Article 226 of the Constitution, in a matter pertaining to recovery of income-tax, it was observed that the proceedings were civil proceedings within the meaning of Article 133(1)(c) of the Constitution. Reference has next been made to a Full Bench decision of the Punjab High Court in Kapur Singh v. Union of India, where also the question about the nature of proceedings under Articles 133 and 226 of the Constitution came up for discussion. In my opinion, none of these decisions throw helpful light on the question which the preliminary objection poses. Section 488 reads as under:</p><p style="text-align: justify;">'488. Order for maintenance of wives and children.--(1) If any person having sufficient means neglects or refuses to maintain his wife or his legitimate or illegitimate child unable to maintain itself, the District Magistrate, a Presidency Magistrate, a Sub-Divisional Magistrate or 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, at such monthly rate, nto exceeding five hundred rupees in the whole, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate from time to time directs.</p><p style="text-align: justify;"> (2) Such allowance shall be payable from the date of the order, or if so ordered from the date of the application for maintenance.</p><p style="text-align: justify;"> (3) If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in manner hereinbefore provided for levying fines, and may sentence such person, for the whole or any part of each month's allowance remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made:</p><p style="text-align: justify;"> Provided that, if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if ho is satisfied that there is just ground for so doing.</p><p style="text-align: justify;"> If a husband has contracted marriage with another wife or keeps a mistress, it shall be considered to be just ground for his wife's refusal to live with him:</p><p style="text-align: justify;"> Provided, further that no warrant shall be issued for the recovery of any amount due under this direction unless application be made to the Court to levy such amount within a period of one year from the date on which it became due.</p><p style="text-align: justify;"> (4) No wife shall be entitled to receive an allowance from her husband under this section if she is living in adultery, or if, without any sufficient reason she refuses to live with her husband, or if they are living separately by mutual consent.</p><p style="text-align: justify;"> (5) On proof that any wife in whose favor an order has been made under this section is living in adultery, or that without sufficient reason she refuses to live with her husband, or that they are living separately by mutual consent, the Magistrate shall cancel the order.</p><p style="text-align: justify;"> (6) All evidence under this Chapter shall be taken in the presence of the husband or father, as the case may be, or, when his personal attendance is dispensed with, in the presence of his pleader, and shall be recorded in :he manner prescribed in the case of summons-cases:</p><p style="text-align: justify;"> Provided that if the Magistrate is satisfied that he is willfully avoiding service, or willfully neglects to attend the Court, the Magistrate may proceed to hear and determine the case ex parte. Any order so made may be set aside for good cause shown, on application made within three months from the date thereof.</p><p style="text-align: justify;"> (7) The Court in dealing with applications under this section shall have power to make such order as to costs as may be just.</p><p style="text-align: justify;"> (8) Proceedings under this section may be taken against any person in any district where he resides or is, or where he last resided with his wife or, as the case may be, the mother of the illegitimate child.' </p><p style="text-align: justify;">It is obvious that it confers power to order maintenance, on District Magistrates, Presidency Magistrates, Sub-Divisional Magistrates and Magistrates of the 1st Class: Courts which are indisputably criminal Courts and nto civil Courts. Sub-section (6) provides that all evidence under this Chapter has to be taken in the presence of the husband or father, as the case may be, or when his personal attendance is dispensed with, in the presence of his pleader and it is to be recorded in the manner prescribed in the case of summons-cases. This is a further indication that the proceedings are criminal proceedings and nto civil proceedings. The argument that there is no penalty imposed by this section and the proceedings thereforee, cannto be described as 'criminal' is also unacceptable because according to Section 488(3), which provides for enforcement of orders, in certain circumstances, the person in default can be imprisoned for a term which may extend to one month or until payment, if sooner made, though I should nto be understood to hold this consideration to be conclusive on the point either way. It is obvious that the proceedings envisaged by Chapter xxxvi of the Code cannto be considered to be purely civil proceedings, though the person in default, against whom maintenance order is sought, may nto be an accused person whose examination without oath is mandatory as prescribed by Section 342 of the Code and he may be entitled to appear as a witness as well. I am aware of some conflict of judicial opinion in some old cases where on the ground that the procedure of trying maintenance applications being that of a summons case, failure to examine the person proceeded against under Section 342 of the Code, was held to vitiate the proceedings, but that conflict was set at rest by later decisions in which this section was held inapplicable to proceedings under S. 488. However, consistently all the Courts dealing with that question had assumed that the proceedings were criminal proceedings governed by the Code of Criminal Procedure, both in regard to the trial and the power of revision of the Court of the Sessions Judge and of the High Court.</p><p style="text-align: justify;">2. Chapter 7-A of Vol. Iii of Rules and Orders of the Punjab High Court dealing with the maintenance cases also recites that proceedings under Section 488 of the Code of Criminal Procedure are of a criminal character and the provisions contained therein must, thereforee, be strictly followed. Keeping in view the scheme of Chapter xxxvi of the Code of Criminal Procedure and also the scheme of Articles 133 and 134 of the Constitution, I have little hesitation in holding that proceedings under Section 488, Cr. P. C., do fall within the contemplation of criminal proceedings within the meaning of Article 134. The expression 'criminal proceedings' in this Article, seems to me to be wide enough to include maintenance proceedings adjudicated upon by Magistrates initiated under Chapter xxxvI. Such maintenance proceedings are, in my view, criminal proceedings, designed by way of summary process to provide to deserted wives and neglected children, adjudication of their civil right of maintenance up to al limited amount, enforceable through criminal Courts, to avoid the notorious delays of civil proceedings, which may still be utilised for fuller relief under the general law in the ordinary civil Courts.</p><p style="text-align: justify;">3. And then, what directly concerns this Court is the question of the nature of the proceedings on revision in this Court. These proceedings seem to me to be clearly criminal proceedings and I find no logical and rational basis for holding them to be civil proceedings so as to exclude the applicability of Article 134 of the Constitution. Nto only are they registered in this Court as criminal revisions but they are also presented in this Court under the Cr. P. C. and nto under the Civil P. C. The difference between the relative scope of a civil revision and of a criminal revision is well known and revision against an order under Section 488, Cr. P. C. has never been held to my knowledge to be a civil revision so as to exclude the applicability of Art. 134(1)(c) of the Constitution. The preliminary objection is, thereforee, nto easy to sustain.</p><p style="text-align: justify;">4. Coming now to the merits, the learned counsel for the petitioner has very strongly argued that according to Section 488 of the Code, a separate order should have been made granting maintenance to the children. In my opinion, the question which concerns this Court in this present proceedings is nto so much as to what should have been done by the Magistrate while dealing with Section 488, Cr. P. C., but whether there is any such infirmity in the order of this Court as would justify a certificate of fitness within the contemplation of Article 134(1)(c) of the Constitution. It is nto argued, and it cannto be argued, that clause (a) or clause (b) of Article 134(1) covers this case. Clause (c) of this sub-article postulates a case in which a difficult question involving an unsettled principle requires to be finally determined by the Supreme Court. That does nto seem to be the case before me, and indeed no attempt has been made to show that there is any question of principle involved in the impugned order which requires authoritative decision by the Supreme Court. But this apart, the grant of maintenance in this case is a tentative order and it is always open to the authorities to ask for re-consideration and re-determination on account of change of circumstances. The children in these proceedings may, if they are so advised, even now apply to a competent Court under Section 488 for maintenance and if they make out a good claim to the satisfaction of the Court, I have nto the least doubt that suitable orders would be made in accordance with law. The revision on their behalf was held to be barred by time and this Court did nto consider it proper to exercise its suo motu power of revision in this regard. There is no decision on the merits against them by this Court and it has nto been shown that the impugned decision is based on any wrong principle of law which requires further examination by the Supreme Court.</p><p style="text-align: justify;">5. For the foregoing reasons, this application fails and is dismissed.</p><p style="text-align: justify;">6. Application dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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$title_for_layout = 'Harbhajan Kaur Vs Sant Singh - Citation 681173 - Court Judgment | '
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		'id' => '681173',
		'acts' => '<a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 133, 134, 134(1) and 226; <a href="/act/133280/code-of-criminal-procedure-1898-complete-act">Code of Criminal Procedure (CrPC) , 1898</a> - Sections 342, 488, 488(3) and 488(6)',
		'appealno' => 'Criminal Misc. (SCA) No. 855 of 1968',
		'appellant' => 'Harbhajan Kaur',
		'authreffered' => '',
		'casename' => 'Harbhajan Kaur Vs. Sant Singh',
		'casenote' => ' (i) 
Criminal Procedure Code (V of 1898)- Section 488--Proceedings under--nature of--are criminal proceedings and nto Civil proceedings.; The proceedings envisaged by  Chapter xxxvI of the Code cannto be considered 
purely civil proceedings, though the person in default, against whom maintenance order is sought, may nto be an accused person, whose examination without oath is mandatory as prescribed by section 342 of the Code and he may be entitled to appear as a witness as 
well.; Chapter 7-A of Vol. III of Rules and Orders of the Punjab High Court dealing with the maintenance cases also recites that proceedings under section 488 of the Code of Criminal Procedure are of criminal character and the provisions contained therein must, thereforee, be strictly followed.; (ii) Constitution of India - Article 134--Proceedings under Section 488 within the contemplation of--expression--'Criminal proceedings'--scope of.;  That the proceedings under Section 488 Cr. P.C. do fall within the contemplation of criminal proceedings within the meaning of Article 134. 
The expression 'Criminal Proceedings' in this Article is wide enough to include maintenance proceedings adjucated upon by Magistrate initiated under Chapter xxxvI. Such maintenance proceedings are criminal proceedings designed by way of summary process to provide to deserted wives and neglected children adjudication of their civil right of maintenance up to a limited amount enforceable through criminal courts, to avoid the notorious delays of civil proceedings, which may still be utilised for fuller relief under the general law 
in the ordinary civil courts. - Section 13: [Altamas Kabir & Cyriac Joseph,JJ] Custody of child - Welfare of child vis--vis comity of Courts - The minor girl child of 3 1/2 years was brought to India by her mother. The minor girl was a citizen of U.K. being born in U.K. her parents had set up their matrimonial home in U.K. and had acquired status of permanent residents of U.K. The child with her mother was supposed to return to U.K. but the mother cancelled her tickets and remained behind in India. The husband thereupon started procededings before the High Court of Justice, Family Division. U.K. praying for an order that the minor child be made a ward of the Court and for a direction upon the wife to return the minor child to the jurisdiction of the said Court. A further direction was given for the passport and other international travel documents of the minor child to be handed over to the Solicitors of the husband. A petition seeking protection of minor child was thereupon filed by father of the husband before Delhi High Court. A direction for handing over custody of child to father of husband was also sought. The High Court considering fact that the U.K. court was already in seisin of  matter and had passed an interim order and by relying on principle of comity of Nations and Comity of Judgments of the courts of two different countries in deciding the matter directed the wife to take the child of her own to U.K.or hand it over to father of husband to be taken to U.K. as measure of interim custody and that it would be for the U.K. Court to decide the question of custody  -  Order was challenged by wife -  Held, the order of High Court was not liable to be interfered with. Although, on first impression, it would appear that the interests of the minor child would best be served if she is allowed to remain with the wife, the order of U.K. court cannot be lost sight of., The order of U.K. Court except for insisiting that the minor be returned to its jurisdiction, the English Court did not intend to separate the child from the mother until a final decision was taken with regard to the custody of the child. The ultimate decision in that regard has to be left to the English Court having regard to the nationality of the child and the fact that both the parents had worked for gain in the U.K. and had also acquired permanent resident status in the U.K. English Court has not directed that the custody of the child should be handed over to  the father but that the child should be returned to the jurisdiction of the Courts in the U.K. which would then proceed to determine as to who would be best suited to have the custody of the child. The High Court has taken into consideration both the questions relating to the Comity of Courts as well as the interest of the minor child, which, no doubt, is one of the most important considerations in matters relating to custody of a minor child.  -  Provided that, if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if ho is satisfied that there is just ground for so doing. Provided that if the Magistrate is satisfied that he is willfully avoiding service, or willfully neglects to attend the Court, the Magistrate may proceed to hear and determine the case ex parte. Any order so made may be set aside for good cause shown, on application made within three months from the date thereof. It is obvious that the proceedings envisaged by Chapter xxxvi of the Code cannto be considered to be purely civil proceedings, though the person in default, against whom maintenance order is sought, may nto be an accused person whose examination without oath is mandatory as prescribed by Section 342 of the Code and he may be entitled to appear as a witness as well. I am aware of some conflict of judicial opinion in some old cases where on the ground that the procedure of trying maintenance applications being that of a summons case, failure to examine the person proceeded against under Section 342 of the Code, was held to vitiate the proceedings, but that conflict was set at rest by later decisions in which this section was held inapplicable to proceedings under S. These proceedings seem to me to be clearly criminal proceedings and I find no logical and rational basis for holding them to be civil proceedings so as to exclude the applicability of Article 134 of the Constitution. The difference between the relative scope of a civil revision and of a criminal revision is well known and revision against an order under Section 488, Cr. The children in these proceedings may, if they are so advised, even now apply to a competent Court under Section 488 for maintenance and if they make out a good claim to the satisfaction of the Court, I have nto the least doubt that suitable orders would be made in accordance with law.',
		'caseanalysis' => null,
		'casesref' => 'Kapur Singh v. Union of India;',
		'citingcases' => '',
		'counselplain' => ' O.P. Sharma, Adv',
		'counseldef' => ' Madan Bhatia, Adv.',
		'court' => 'Delhi',
		'court_type' => 'HC',
		'decidedon' => '1968-12-17',
		'deposition' => '',
		'favorof' => null,
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		'judge' => ' I.D. Dua, C.J.',
		'judgement' => '<p>1. In this application for a certificate of fitness for appeal to the Supreme Court from an order made on revision by this Court in proceedings under Section 488, Cr. P. C, a preliminary objection has been raised that Article 134(1)(c) of the Constitution is inapplicable because proceedings under Section 488 are civil proceedings and nto criminal proceedings. Reliance in support of this preliminary objection has been placed on a decision of the Supreme Court in Nand Lal Misra v. K.L. Misra, : 1960CriLJ1246 . Emphasis has been laid on the observations In this Judgment that Chapter xxxvi of the Code of Criminal Procedure is a self-contained one and the relief given under it is essentially of a civil nature. From this sentence, it is sought to be argued that the proceedings under section 488 are civil proceedings and nto criminal proceedings. Reliance has also been placed on a still more recent Judgment of the Supreme Court in Narayan Row v. Ishwar Lal, : [1965]57ITR149(SC) , in which while dealing with an appeal from an order made by the Bombay High Court under Article 226 of the Constitution, in a matter pertaining to recovery of income-tax, it was observed that the proceedings were civil proceedings within the meaning of Article 133(1)(c) of the Constitution. Reference has next been made to a Full Bench decision of the Punjab High Court in Kapur Singh v. Union of India, where also the question about the nature of proceedings under Articles 133 and 226 of the Constitution came up for discussion. In my opinion, none of these decisions throw helpful light on the question which the preliminary objection poses. Section 488 reads as under:</p><p>'488. Order for maintenance of wives and children.--(1) If any person having sufficient means neglects or refuses to maintain his wife or his legitimate or illegitimate child unable to maintain itself, the District Magistrate, a Presidency Magistrate, a Sub-Divisional Magistrate or 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, at such monthly rate, nto exceeding five hundred rupees in the whole, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate from time to time directs.</p><p> (2) Such allowance shall be payable from the date of the order, or if so ordered from the date of the application for maintenance.</p><p> (3) If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in manner hereinbefore provided for levying fines, and may sentence such person, for the whole or any part of each month's allowance remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made:</p><p> Provided that, if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if ho is satisfied that there is just ground for so doing.</p><p> If a husband has contracted marriage with another wife or keeps a mistress, it shall be considered to be just ground for his wife's refusal to live with him:</p><p> Provided, further that no warrant shall be issued for the recovery of any amount due under this direction unless application be made to the Court to levy such amount within a period of one year from the date on which it became due.</p><p> (4) No wife shall be entitled to receive an allowance from her husband under this section if she is living in adultery, or if, without any sufficient reason she refuses to live with her husband, or if they are living separately by mutual consent.</p><p> (5) On proof that any wife in whose favor an order has been made under this section is living in adultery, or that without sufficient reason she refuses to live with her husband, or that they are living separately by mutual consent, the Magistrate shall cancel the order.</p><p> (6) All evidence under this Chapter shall be taken in the presence of the husband or father, as the case may be, or, when his personal attendance is dispensed with, in the presence of his pleader, and shall be recorded in :he manner prescribed in the case of summons-cases:</p><p> Provided that if the Magistrate is satisfied that he is willfully avoiding service, or willfully neglects to attend the Court, the Magistrate may proceed to hear and determine the case ex parte. Any order so made may be set aside for good cause shown, on application made within three months from the date thereof.</p><p> (7) The Court in dealing with applications under this section shall have power to make such order as to costs as may be just.</p><p> (8) Proceedings under this section may be taken against any person in any district where he resides or is, or where he last resided with his wife or, as the case may be, the mother of the illegitimate child.' </p><p>It is obvious that it confers power to order maintenance, on District Magistrates, Presidency Magistrates, Sub-Divisional Magistrates and Magistrates of the 1st Class: Courts which are indisputably criminal Courts and nto civil Courts. Sub-section (6) provides that all evidence under this Chapter has to be taken in the presence of the husband or father, as the case may be, or when his personal attendance is dispensed with, in the presence of his pleader and it is to be recorded in the manner prescribed in the case of summons-cases. This is a further indication that the proceedings are criminal proceedings and nto civil proceedings. The argument that there is no penalty imposed by this section and the proceedings thereforee, cannto be described as 'criminal' is also unacceptable because according to Section 488(3), which provides for enforcement of orders, in certain circumstances, the person in default can be imprisoned for a term which may extend to one month or until payment, if sooner made, though I should nto be understood to hold this consideration to be conclusive on the point either way. It is obvious that the proceedings envisaged by Chapter xxxvi of the Code cannto be considered to be purely civil proceedings, though the person in default, against whom maintenance order is sought, may nto be an accused person whose examination without oath is mandatory as prescribed by Section 342 of the Code and he may be entitled to appear as a witness as well. I am aware of some conflict of judicial opinion in some old cases where on the ground that the procedure of trying maintenance applications being that of a summons case, failure to examine the person proceeded against under Section 342 of the Code, was held to vitiate the proceedings, but that conflict was set at rest by later decisions in which this section was held inapplicable to proceedings under S. 488. However, consistently all the Courts dealing with that question had assumed that the proceedings were criminal proceedings governed by the Code of Criminal Procedure, both in regard to the trial and the power of revision of the Court of the Sessions Judge and of the High Court.</p><p>2. Chapter 7-A of Vol. Iii of Rules and Orders of the Punjab High Court dealing with the maintenance cases also recites that proceedings under Section 488 of the Code of Criminal Procedure are of a criminal character and the provisions contained therein must, thereforee, be strictly followed. Keeping in view the scheme of Chapter xxxvi of the Code of Criminal Procedure and also the scheme of Articles 133 and 134 of the Constitution, I have little hesitation in holding that proceedings under Section 488, Cr. P. C., do fall within the contemplation of criminal proceedings within the meaning of Article 134. The expression 'criminal proceedings' in this Article, seems to me to be wide enough to include maintenance proceedings adjudicated upon by Magistrates initiated under Chapter xxxvI. Such maintenance proceedings are, in my view, criminal proceedings, designed by way of summary process to provide to deserted wives and neglected children, adjudication of their civil right of maintenance up to al limited amount, enforceable through criminal Courts, to avoid the notorious delays of civil proceedings, which may still be utilised for fuller relief under the general law in the ordinary civil Courts.</p><p>3. And then, what directly concerns this Court is the question of the nature of the proceedings on revision in this Court. These proceedings seem to me to be clearly criminal proceedings and I find no logical and rational basis for holding them to be civil proceedings so as to exclude the applicability of Article 134 of the Constitution. Nto only are they registered in this Court as criminal revisions but they are also presented in this Court under the Cr. P. C. and nto under the Civil P. C. The difference between the relative scope of a civil revision and of a criminal revision is well known and revision against an order under Section 488, Cr. P. C. has never been held to my knowledge to be a civil revision so as to exclude the applicability of Art. 134(1)(c) of the Constitution. The preliminary objection is, thereforee, nto easy to sustain.</p><p>4. Coming now to the merits, the learned counsel for the petitioner has very strongly argued that according to Section 488 of the Code, a separate order should have been made granting maintenance to the children. In my opinion, the question which concerns this Court in this present proceedings is nto so much as to what should have been done by the Magistrate while dealing with Section 488, Cr. P. C., but whether there is any such infirmity in the order of this Court as would justify a certificate of fitness within the contemplation of Article 134(1)(c) of the Constitution. It is nto argued, and it cannto be argued, that clause (a) or clause (b) of Article 134(1) covers this case. Clause (c) of this sub-article postulates a case in which a difficult question involving an unsettled principle requires to be finally determined by the Supreme Court. That does nto seem to be the case before me, and indeed no attempt has been made to show that there is any question of principle involved in the impugned order which requires authoritative decision by the Supreme Court. But this apart, the grant of maintenance in this case is a tentative order and it is always open to the authorities to ask for re-consideration and re-determination on account of change of circumstances. The children in these proceedings may, if they are so advised, even now apply to a competent Court under Section 488 for maintenance and if they make out a good claim to the satisfaction of the Court, I have nto the least doubt that suitable orders would be made in accordance with law. The revision on their behalf was held to be barred by time and this Court did nto consider it proper to exercise its suo motu power of revision in this regard. There is no decision on the merits against them by this Court and it has nto been shown that the impugned decision is based on any wrong principle of law which requires further examination by the Supreme Court.</p><p>5. For the foregoing reasons, this application fails and is dismissed.</p><p>6. Application dismissed.<p></p><p>',
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		'pubs' => 'AIR1969Delhi298; 1969CriLJ1243; ILR1968Delhi545',
		'ratiodecidendi' => '',
		'respondent' => 'Sant Singh',
		'sub' => 'Criminal;Constitution',
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		'circuit' => null
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	'title_for_layout' => 'Harbhajan Kaur Vs Sant Singh - Citation 681173 - Court Judgment | ',
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			'id' => '681173',
			'acts' => '<a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 133, 134, 134(1) and 226; <a href="/act/133280/code-of-criminal-procedure-1898-complete-act">Code of Criminal Procedure (CrPC) , 1898</a> - Sections 342, 488, 488(3) and 488(6)',
			'appealno' => 'Criminal Misc. (SCA) No. 855 of 1968',
			'appellant' => 'Harbhajan Kaur',
			'authreffered' => '',
			'casename' => 'Harbhajan Kaur Vs. Sant Singh',
			'casenote' => ' (i) 
Criminal Procedure Code (V of 1898)- Section 488--Proceedings under--nature of--are criminal proceedings and nto Civil proceedings.; The proceedings envisaged by  Chapter xxxvI of the Code cannto be considered 
purely civil proceedings, though the person in default, against whom maintenance order is sought, may nto be an accused person, whose examination without oath is mandatory as prescribed by section 342 of the Code and he may be entitled to appear as a witness as 
well.; Chapter 7-A of Vol. III of Rules and Orders of the Punjab High Court dealing with the maintenance cases also recites that proceedings under section 488 of the Code of Criminal Procedure are of criminal character and the provisions contained therein must, thereforee, be strictly followed.; (ii) Constitution of India - Article 134--Proceedings under Section 488 within the contemplation of--expression--'Criminal proceedings'--scope of.;  That the proceedings under Section 488 Cr. P.C. do fall within the contemplation of criminal proceedings within the meaning of Article 134. 
The expression 'Criminal Proceedings' in this Article is wide enough to include maintenance proceedings adjucated upon by Magistrate initiated under Chapter xxxvI. Such maintenance proceedings are criminal proceedings designed by way of summary process to provide to deserted wives and neglected children adjudication of their civil right of maintenance up to a limited amount enforceable through criminal courts, to avoid the notorious delays of civil proceedings, which may still be utilised for fuller relief under the general law 
in the ordinary civil courts. - Section 13: [Altamas Kabir & Cyriac Joseph,JJ] Custody of child - Welfare of child vis--vis comity of Courts - The minor girl child of 3 1/2 years was brought to India by her mother. The minor girl was a citizen of U.K. being born in U.K. her parents had set up their matrimonial home in U.K. and had acquired status of permanent residents of U.K. The child with her mother was supposed to return to U.K. but the mother cancelled her tickets and remained behind in India. The husband thereupon started procededings before the High Court of Justice, Family Division. U.K. praying for an order that the minor child be made a ward of the Court and for a direction upon the wife to return the minor child to the jurisdiction of the said Court. A further direction was given for the passport and other international travel documents of the minor child to be handed over to the Solicitors of the husband. A petition seeking protection of minor child was thereupon filed by father of the husband before Delhi High Court. A direction for handing over custody of child to father of husband was also sought. The High Court considering fact that the U.K. court was already in seisin of  matter and had passed an interim order and by relying on principle of comity of Nations and Comity of Judgments of the courts of two different countries in deciding the matter directed the wife to take the child of her own to U.K.or hand it over to father of husband to be taken to U.K. as measure of interim custody and that it would be for the U.K. Court to decide the question of custody  -  Order was challenged by wife -  Held, the order of High Court was not liable to be interfered with. Although, on first impression, it would appear that the interests of the minor child would best be served if she is allowed to remain with the wife, the order of U.K. court cannot be lost sight of., The order of U.K. Court except for insisiting that the minor be returned to its jurisdiction, the English Court did not intend to separate the child from the mother until a final decision was taken with regard to the custody of the child. The ultimate decision in that regard has to be left to the English Court having regard to the nationality of the child and the fact that both the parents had worked for gain in the U.K. and had also acquired permanent resident status in the U.K. English Court has not directed that the custody of the child should be handed over to  the father but that the child should be returned to the jurisdiction of the Courts in the U.K. which would then proceed to determine as to who would be best suited to have the custody of the child. The High Court has taken into consideration both the questions relating to the Comity of Courts as well as the interest of the minor child, which, no doubt, is one of the most important considerations in matters relating to custody of a minor child.  -  Provided that, if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if ho is satisfied that there is just ground for so doing. Provided that if the Magistrate is satisfied that he is willfully avoiding service, or willfully neglects to attend the Court, the Magistrate may proceed to hear and determine the case ex parte. Any order so made may be set aside for good cause shown, on application made within three months from the date thereof. It is obvious that the proceedings envisaged by Chapter xxxvi of the Code cannto be considered to be purely civil proceedings, though the person in default, against whom maintenance order is sought, may nto be an accused person whose examination without oath is mandatory as prescribed by Section 342 of the Code and he may be entitled to appear as a witness as well. I am aware of some conflict of judicial opinion in some old cases where on the ground that the procedure of trying maintenance applications being that of a summons case, failure to examine the person proceeded against under Section 342 of the Code, was held to vitiate the proceedings, but that conflict was set at rest by later decisions in which this section was held inapplicable to proceedings under S. These proceedings seem to me to be clearly criminal proceedings and I find no logical and rational basis for holding them to be civil proceedings so as to exclude the applicability of Article 134 of the Constitution. The difference between the relative scope of a civil revision and of a criminal revision is well known and revision against an order under Section 488, Cr. The children in these proceedings may, if they are so advised, even now apply to a competent Court under Section 488 for maintenance and if they make out a good claim to the satisfaction of the Court, I have nto the least doubt that suitable orders would be made in accordance with law.',
			'caseanalysis' => null,
			'casesref' => 'Kapur Singh v. Union of India;',
			'citingcases' => '',
			'counselplain' => ' O.P. Sharma, Adv',
			'counseldef' => ' Madan Bhatia, Adv.',
			'court' => 'Delhi',
			'court_type' => 'HC',
			'decidedon' => '1968-12-17',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' I.D. Dua, C.J.',
			'judgement' => '<p style="text-align: justify;">1. In this application for a certificate of fitness for appeal to the Supreme Court from an order made on revision by this Court in proceedings under Section 488, Cr. P. C, a preliminary objection has been raised that Article 134(1)(c) of the Constitution is inapplicable because proceedings under Section 488 are civil proceedings and nto criminal proceedings. Reliance in support of this preliminary objection has been placed on a decision of the Supreme Court in Nand Lal Misra v. K.L. Misra, : 1960CriLJ1246 . Emphasis has been laid on the observations In this Judgment that Chapter xxxvi of the Code of Criminal Procedure is a self-contained one and the relief given under it is essentially of a civil nature. From this sentence, it is sought to be argued that the proceedings under section 488 are civil proceedings and nto criminal proceedings. Reliance has also been placed on a still more recent Judgment of the Supreme Court in Narayan Row v. Ishwar Lal, : [1965]57ITR149(SC) , in which while dealing with an appeal from an order made by the Bombay High Court under Article 226 of the Constitution, in a matter pertaining to recovery of income-tax, it was observed that the proceedings were civil proceedings within the meaning of Article 133(1)(c) of the Constitution. Reference has next been made to a Full Bench decision of the Punjab High Court in Kapur Singh v. Union of India, where also the question about the nature of proceedings under Articles 133 and 226 of the Constitution came up for discussion. In my opinion, none of these decisions throw helpful light on the question which the preliminary objection poses. Section 488 reads as under:</p><p style="text-align: justify;">'488. Order for maintenance of wives and children.--(1) If any person having sufficient means neglects or refuses to maintain his wife or his legitimate or illegitimate child unable to maintain itself, the District Magistrate, a Presidency Magistrate, a Sub-Divisional Magistrate or 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, at such monthly rate, nto exceeding five hundred rupees in the whole, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate from time to time directs.</p><p style="text-align: justify;"> (2) Such allowance shall be payable from the date of the order, or if so ordered from the date of the application for maintenance.</p><p style="text-align: justify;"> (3) If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in manner hereinbefore provided for levying fines, and may sentence such person, for the whole or any part of each month's allowance remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made:</p><p style="text-align: justify;"> Provided that, if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if ho is satisfied that there is just ground for so doing.</p><p style="text-align: justify;"> If a husband has contracted marriage with another wife or keeps a mistress, it shall be considered to be just ground for his wife's refusal to live with him:</p><p style="text-align: justify;"> Provided, further that no warrant shall be issued for the recovery of any amount due under this direction unless application be made to the Court to levy such amount within a period of one year from the date on which it became due.</p><p style="text-align: justify;"> (4) No wife shall be entitled to receive an allowance from her husband under this section if she is living in adultery, or if, without any sufficient reason she refuses to live with her husband, or if they are living separately by mutual consent.</p><p style="text-align: justify;"> (5) On proof that any wife in whose favor an order has been made under this section is living in adultery, or that without sufficient reason she refuses to live with her husband, or that they are living separately by mutual consent, the Magistrate shall cancel the order.</p><p style="text-align: justify;"> (6) All evidence under this Chapter shall be taken in the presence of the husband or father, as the case may be, or, when his personal attendance is dispensed with, in the presence of his pleader, and shall be recorded in :he manner prescribed in the case of summons-cases:</p><p style="text-align: justify;"> Provided that if the Magistrate is satisfied that he is willfully avoiding service, or willfully neglects to attend the Court, the Magistrate may proceed to hear and determine the case ex parte. Any order so made may be set aside for good cause shown, on application made within three months from the date thereof.</p><p style="text-align: justify;"> (7) The Court in dealing with applications under this section shall have power to make such order as to costs as may be just.</p><p style="text-align: justify;"> (8) Proceedings under this section may be taken against any person in any district where he resides or is, or where he last resided with his wife or, as the case may be, the mother of the illegitimate child.' </p><p style="text-align: justify;">It is obvious that it confers power to order maintenance, on District Magistrates, Presidency Magistrates, Sub-Divisional Magistrates and Magistrates of the 1st Class: Courts which are indisputably criminal Courts and nto civil Courts. Sub-section (6) provides that all evidence under this Chapter has to be taken in the presence of the husband or father, as the case may be, or when his personal attendance is dispensed with, in the presence of his pleader and it is to be recorded in the manner prescribed in the case of summons-cases. This is a further indication that the proceedings are criminal proceedings and nto civil proceedings. The argument that there is no penalty imposed by this section and the proceedings thereforee, cannto be described as 'criminal' is also unacceptable because according to Section 488(3), which provides for enforcement of orders, in certain circumstances, the person in default can be imprisoned for a term which may extend to one month or until payment, if sooner made, though I should nto be understood to hold this consideration to be conclusive on the point either way. It is obvious that the proceedings envisaged by Chapter xxxvi of the Code cannto be considered to be purely civil proceedings, though the person in default, against whom maintenance order is sought, may nto be an accused person whose examination without oath is mandatory as prescribed by Section 342 of the Code and he may be entitled to appear as a witness as well. I am aware of some conflict of judicial opinion in some old cases where on the ground that the procedure of trying maintenance applications being that of a summons case, failure to examine the person proceeded against under Section 342 of the Code, was held to vitiate the proceedings, but that conflict was set at rest by later decisions in which this section was held inapplicable to proceedings under S. 488. However, consistently all the Courts dealing with that question had assumed that the proceedings were criminal proceedings governed by the Code of Criminal Procedure, both in regard to the trial and the power of revision of the Court of the Sessions Judge and of the High Court.</p><p style="text-align: justify;">2. Chapter 7-A of Vol. Iii of Rules and Orders of the Punjab High Court dealing with the maintenance cases also recites that proceedings under Section 488 of the Code of Criminal Procedure are of a criminal character and the provisions contained therein must, thereforee, be strictly followed. Keeping in view the scheme of Chapter xxxvi of the Code of Criminal Procedure and also the scheme of Articles 133 and 134 of the Constitution, I have little hesitation in holding that proceedings under Section 488, Cr. P. C., do fall within the contemplation of criminal proceedings within the meaning of Article 134. The expression 'criminal proceedings' in this Article, seems to me to be wide enough to include maintenance proceedings adjudicated upon by Magistrates initiated under Chapter xxxvI. Such maintenance proceedings are, in my view, criminal proceedings, designed by way of summary process to provide to deserted wives and neglected children, adjudication of their civil right of maintenance up to al limited amount, enforceable through criminal Courts, to avoid the notorious delays of civil proceedings, which may still be utilised for fuller relief under the general law in the ordinary civil Courts.</p><p style="text-align: justify;">3. And then, what directly concerns this Court is the question of the nature of the proceedings on revision in this Court. These proceedings seem to me to be clearly criminal proceedings and I find no logical and rational basis for holding them to be civil proceedings so as to exclude the applicability of Article 134 of the Constitution. Nto only are they registered in this Court as criminal revisions but they are also presented in this Court under the Cr. P. C. and nto under the Civil P. C. The difference between the relative scope of a civil revision and of a criminal revision is well known and revision against an order under Section 488, Cr. P. C. has never been held to my knowledge to be a civil revision so as to exclude the applicability of Art. 134(1)(c) of the Constitution. The preliminary objection is, thereforee, nto easy to sustain.</p><p style="text-align: justify;">4. Coming now to the merits, the learned counsel for the petitioner has very strongly argued that according to Section 488 of the Code, a separate order should have been made granting maintenance to the children. In my opinion, the question which concerns this Court in this present proceedings is nto so much as to what should have been done by the Magistrate while dealing with Section 488, Cr. P. C., but whether there is any such infirmity in the order of this Court as would justify a certificate of fitness within the contemplation of Article 134(1)(c) of the Constitution. It is nto argued, and it cannto be argued, that clause (a) or clause (b) of Article 134(1) covers this case. Clause (c) of this sub-article postulates a case in which a difficult question involving an unsettled principle requires to be finally determined by the Supreme Court. That does nto seem to be the case before me, and indeed no attempt has been made to show that there is any question of principle involved in the impugned order which requires authoritative decision by the Supreme Court. But this apart, the grant of maintenance in this case is a tentative order and it is always open to the authorities to ask for re-consideration and re-determination on account of change of circumstances. The children in these proceedings may, if they are so advised, even now apply to a competent Court under Section 488 for maintenance and if they make out a good claim to the satisfaction of the Court, I have nto the least doubt that suitable orders would be made in accordance with law. The revision on their behalf was held to be barred by time and this Court did nto consider it proper to exercise its suo motu power of revision in this regard. There is no decision on the merits against them by this Court and it has nto been shown that the impugned decision is based on any wrong principle of law which requires further examination by the Supreme Court.</p><p style="text-align: justify;">5. For the foregoing reasons, this application fails and is dismissed.</p><p style="text-align: justify;">6. Application dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'respondent' => 'Sant Singh',
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			'circuit' => null
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		'id' => '681173',
		'acts' => '<a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 133, 134, 134(1) and 226; <a href="/act/133280/code-of-criminal-procedure-1898-complete-act">Code of Criminal Procedure (CrPC) , 1898</a> - Sections 342, 488, 488(3) and 488(6)',
		'appealno' => 'Criminal Misc. (SCA) No. 855 of 1968',
		'appellant' => 'Harbhajan Kaur',
		'authreffered' => '',
		'casename' => 'Harbhajan Kaur Vs. Sant Singh',
		'casenote' => ' (i) 
Criminal Procedure Code (V of 1898)- Section 488--Proceedings under--nature of--are criminal proceedings and nto Civil proceedings.; The proceedings envisaged by  Chapter xxxvI of the Code cannto be considered 
purely civil proceedings, though the person in default, against whom maintenance order is sought, may nto be an accused person, whose examination without oath is mandatory as prescribed by section 342 of the Code and he may be entitled to appear as a witness as 
well.; Chapter 7-A of Vol. III of Rules and Orders of the Punjab High Court dealing with the maintenance cases also recites that proceedings under section 488 of the Code of Criminal Procedure are of criminal character and the provisions contained therein must, thereforee, be strictly followed.; (ii) Constitution of India - Article 134--Proceedings under Section 488 within the contemplation of--expression--'Criminal proceedings'--scope of.;  That the proceedings under Section 488 Cr. P.C. do fall within the contemplation of criminal proceedings within the meaning of Article 134. 
The expression 'Criminal Proceedings' in this Article is wide enough to include maintenance proceedings adjucated upon by Magistrate initiated under Chapter xxxvI. Such maintenance proceedings are criminal proceedings designed by way of summary process to provide to deserted wives and neglected children adjudication of their civil right of maintenance up to a limited amount enforceable through criminal courts, to avoid the notorious delays of civil proceedings, which may still be utilised for fuller relief under the general law 
in the ordinary civil courts. - Section 13: [Altamas Kabir & Cyriac Joseph,JJ] Custody of child - Welfare of child vis--vis comity of Courts - The minor girl child of 3 1/2 years was brought to India by her mother. The minor girl was a citizen of U.K. being born in U.K. her parents had set up their matrimonial home in U.K. and had acquired status of permanent residents of U.K. The child with her mother was supposed to return to U.K. but the mother cancelled her tickets and remained behind in India. The husband thereupon started procededings before the High Court of Justice, Family Division. U.K. praying for an order that the minor child be made a ward of the Court and for a direction upon the wife to return the minor child to the jurisdiction of the said Court. A further direction was given for the passport and other international travel documents of the minor child to be handed over to the Solicitors of the husband. A petition seeking protection of minor child was thereupon filed by father of the husband before Delhi High Court. A direction for handing over custody of child to father of husband was also sought. The High Court considering fact that the U.K. court was already in seisin of  matter and had passed an interim order and by relying on principle of comity of Nations and Comity of Judgments of the courts of two different countries in deciding the matter directed the wife to take the child of her own to U.K.or hand it over to father of husband to be taken to U.K. as measure of interim custody and that it would be for the U.K. Court to decide the question of custody  -  Order was challenged by wife -  Held, the order of High Court was not liable to be interfered with. Although, on first impression, it would appear that the interests of the minor child would best be served if she is allowed to remain with the wife, the order of U.K. court cannot be lost sight of., The order of U.K. Court except for insisiting that the minor be returned to its jurisdiction, the English Court did not intend to separate the child from the mother until a final decision was taken with regard to the custody of the child. The ultimate decision in that regard has to be left to the English Court having regard to the nationality of the child and the fact that both the parents had worked for gain in the U.K. and had also acquired permanent resident status in the U.K. English Court has not directed that the custody of the child should be handed over to  the father but that the child should be returned to the jurisdiction of the Courts in the U.K. which would then proceed to determine as to who would be best suited to have the custody of the child. The High Court has taken into consideration both the questions relating to the Comity of Courts as well as the interest of the minor child, which, no doubt, is one of the most important considerations in matters relating to custody of a minor child.  -  Provided that, if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if ho is satisfied that there is just ground for so doing. Provided that if the Magistrate is satisfied that he is willfully avoiding service, or willfully neglects to attend the Court, the Magistrate may proceed to hear and determine the case ex parte. Any order so made may be set aside for good cause shown, on application made within three months from the date thereof. It is obvious that the proceedings envisaged by Chapter xxxvi of the Code cannto be considered to be purely civil proceedings, though the person in default, against whom maintenance order is sought, may nto be an accused person whose examination without oath is mandatory as prescribed by Section 342 of the Code and he may be entitled to appear as a witness as well. I am aware of some conflict of judicial opinion in some old cases where on the ground that the procedure of trying maintenance applications being that of a summons case, failure to examine the person proceeded against under Section 342 of the Code, was held to vitiate the proceedings, but that conflict was set at rest by later decisions in which this section was held inapplicable to proceedings under S. These proceedings seem to me to be clearly criminal proceedings and I find no logical and rational basis for holding them to be civil proceedings so as to exclude the applicability of Article 134 of the Constitution. The difference between the relative scope of a civil revision and of a criminal revision is well known and revision against an order under Section 488, Cr. The children in these proceedings may, if they are so advised, even now apply to a competent Court under Section 488 for maintenance and if they make out a good claim to the satisfaction of the Court, I have nto the least doubt that suitable orders would be made in accordance with law.',
		'caseanalysis' => null,
		'casesref' => 'Kapur Singh v. Union of India;',
		'citingcases' => '',
		'counselplain' => ' O.P. Sharma, Adv',
		'counseldef' => ' Madan Bhatia, Adv.',
		'court' => 'Delhi',
		'court_type' => 'HC',
		'decidedon' => '1968-12-17',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' I.D. Dua, C.J.',
		'judgement' => '<p>1. In this application for a certificate of fitness for appeal to the Supreme Court from an order made on revision by this Court in proceedings under Section 488, Cr. P. C, a preliminary objection has been raised that Article 134(1)(c) of the Constitution is inapplicable because proceedings under Section 488 are civil proceedings and nto criminal proceedings. Reliance in support of this preliminary objection has been placed on a decision of the Supreme Court in Nand Lal Misra v. K.L. Misra, : 1960CriLJ1246 . Emphasis has been laid on the observations In this Judgment that Chapter xxxvi of the Code of Criminal Procedure is a self-contained one and the relief given under it is essentially of a civil nature. From this sentence, it is sought to be argued that the proceedings under section 488 are civil proceedings and nto criminal proceedings. Reliance has also been placed on a still more recent Judgment of the Supreme Court in Narayan Row v. Ishwar Lal, : [1965]57ITR149(SC) , in which while dealing with an appeal from an order made by the Bombay High Court under Article 226 of the Constitution, in a matter pertaining to recovery of income-tax, it was observed that the proceedings were civil proceedings within the meaning of Article 133(1)(c) of the Constitution. Reference has next been made to a Full Bench decision of the Punjab High Court in Kapur Singh v. Union of India, where also the question about the nature of proceedings under Articles 133 and 226 of the Constitution came up for discussion. In my opinion, none of these decisions throw helpful light on the question which the preliminary objection poses. Section 488 reads as under:</p><p>'488. Order for maintenance of wives and children.--(1) If any person having sufficient means neglects or refuses to maintain his wife or his legitimate or illegitimate child unable to maintain itself, the District Magistrate, a Presidency Magistrate, a Sub-Divisional Magistrate or 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, at such monthly rate, nto exceeding five hundred rupees in the whole, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate from time to time directs.</p><p> (2) Such allowance shall be payable from the date of the order, or if so ordered from the date of the application for maintenance.</p><p> (3) If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in manner hereinbefore provided for levying fines, and may sentence such person, for the whole or any part of each month's allowance remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made:</p><p> Provided that, if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if ho is satisfied that there is just ground for so doing.</p><p> If a husband has contracted marriage with another wife or keeps a mistress, it shall be considered to be just ground for his wife's refusal to live with him:</p><p> Provided, further that no warrant shall be issued for the recovery of any amount due under this direction unless application be made to the Court to levy such amount within a period of one year from the date on which it became due.</p><p> (4) No wife shall be entitled to receive an allowance from her husband under this section if she is living in adultery, or if, without any sufficient reason she refuses to live with her husband, or if they are living separately by mutual consent.</p><p> (5) On proof that any wife in whose favor an order has been made under this section is living in adultery, or that without sufficient reason she refuses to live with her husband, or that they are living separately by mutual consent, the Magistrate shall cancel the order.</p><p> (6) All evidence under this Chapter shall be taken in the presence of the husband or father, as the case may be, or, when his personal attendance is dispensed with, in the presence of his pleader, and shall be recorded in :he manner prescribed in the case of summons-cases:</p><p> Provided that if the Magistrate is satisfied that he is willfully avoiding service, or willfully neglects to attend the Court, the Magistrate may proceed to hear and determine the case ex parte. Any order so made may be set aside for good cause shown, on application made within three months from the date thereof.</p><p> (7) The Court in dealing with applications under this section shall have power to make such order as to costs as may be just.</p><p> (8) Proceedings under this section may be taken against any person in any district where he resides or is, or where he last resided with his wife or, as the case may be, the mother of the illegitimate child.' </p><p>It is obvious that it confers power to order maintenance, on District Magistrates, Presidency Magistrates, Sub-Divisional Magistrates and Magistrates of the 1st Class: Courts which are indisputably criminal Courts and nto civil Courts. Sub-section (6) provides that all evidence under this Chapter has to be taken in the presence of the husband or father, as the case may be, or when his personal attendance is dispensed with, in the presence of his pleader and it is to be recorded in the manner prescribed in the case of summons-cases. This is a further indication that the proceedings are criminal proceedings and nto civil proceedings. The argument that there is no penalty imposed by this section and the proceedings thereforee, cannto be described as 'criminal' is also unacceptable because according to Section 488(3), which provides for enforcement of orders, in certain circumstances, the person in default can be imprisoned for a term which may extend to one month or until payment, if sooner made, though I should nto be understood to hold this consideration to be conclusive on the point either way. It is obvious that the proceedings envisaged by Chapter xxxvi of the Code cannto be considered to be purely civil proceedings, though the person in default, against whom maintenance order is sought, may nto be an accused person whose examination without oath is mandatory as prescribed by Section 342 of the Code and he may be entitled to appear as a witness as well. I am aware of some conflict of judicial opinion in some old cases where on the ground that the procedure of trying maintenance applications being that of a summons case, failure to examine the person proceeded against under Section 342 of the Code, was held to vitiate the proceedings, but that conflict was set at rest by later decisions in which this section was held inapplicable to proceedings under S. 488. However, consistently all the Courts dealing with that question had assumed that the proceedings were criminal proceedings governed by the Code of Criminal Procedure, both in regard to the trial and the power of revision of the Court of the Sessions Judge and of the High Court.</p><p>2. Chapter 7-A of Vol. Iii of Rules and Orders of the Punjab High Court dealing with the maintenance cases also recites that proceedings under Section 488 of the Code of Criminal Procedure are of a criminal character and the provisions contained therein must, thereforee, be strictly followed. Keeping in view the scheme of Chapter xxxvi of the Code of Criminal Procedure and also the scheme of Articles 133 and 134 of the Constitution, I have little hesitation in holding that proceedings under Section 488, Cr. P. C., do fall within the contemplation of criminal proceedings within the meaning of Article 134. The expression 'criminal proceedings' in this Article, seems to me to be wide enough to include maintenance proceedings adjudicated upon by Magistrates initiated under Chapter xxxvI. Such maintenance proceedings are, in my view, criminal proceedings, designed by way of summary process to provide to deserted wives and neglected children, adjudication of their civil right of maintenance up to al limited amount, enforceable through criminal Courts, to avoid the notorious delays of civil proceedings, which may still be utilised for fuller relief under the general law in the ordinary civil Courts.</p><p>3. And then, what directly concerns this Court is the question of the nature of the proceedings on revision in this Court. These proceedings seem to me to be clearly criminal proceedings and I find no logical and rational basis for holding them to be civil proceedings so as to exclude the applicability of Article 134 of the Constitution. Nto only are they registered in this Court as criminal revisions but they are also presented in this Court under the Cr. P. C. and nto under the Civil P. C. The difference between the relative scope of a civil revision and of a criminal revision is well known and revision against an order under Section 488, Cr. P. C. has never been held to my knowledge to be a civil revision so as to exclude the applicability of Art. 134(1)(c) of the Constitution. The preliminary objection is, thereforee, nto easy to sustain.</p><p>4. Coming now to the merits, the learned counsel for the petitioner has very strongly argued that according to Section 488 of the Code, a separate order should have been made granting maintenance to the children. In my opinion, the question which concerns this Court in this present proceedings is nto so much as to what should have been done by the Magistrate while dealing with Section 488, Cr. P. C., but whether there is any such infirmity in the order of this Court as would justify a certificate of fitness within the contemplation of Article 134(1)(c) of the Constitution. It is nto argued, and it cannto be argued, that clause (a) or clause (b) of Article 134(1) covers this case. Clause (c) of this sub-article postulates a case in which a difficult question involving an unsettled principle requires to be finally determined by the Supreme Court. That does nto seem to be the case before me, and indeed no attempt has been made to show that there is any question of principle involved in the impugned order which requires authoritative decision by the Supreme Court. But this apart, the grant of maintenance in this case is a tentative order and it is always open to the authorities to ask for re-consideration and re-determination on account of change of circumstances. The children in these proceedings may, if they are so advised, even now apply to a competent Court under Section 488 for maintenance and if they make out a good claim to the satisfaction of the Court, I have nto the least doubt that suitable orders would be made in accordance with law. The revision on their behalf was held to be barred by time and this Court did nto consider it proper to exercise its suo motu power of revision in this regard. There is no decision on the merits against them by this Court and it has nto been shown that the impugned decision is based on any wrong principle of law which requires further examination by the Supreme Court.</p><p>5. For the foregoing reasons, this application fails and is dismissed.</p><p>6. Application dismissed.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'AIR1969Delhi298; 1969CriLJ1243; ILR1968Delhi545',
		'ratiodecidendi' => '',
		'respondent' => 'Sant Singh',
		'sub' => 'Criminal;Constitution',
		'link' => null,
		'circuit' => null
	)
)
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$ctype = ' High Court'
$caseref = 'Kapur Singh v. Union of India<br>'
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Code Context
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	'title_for_layout' => 'Harbhajan Kaur Vs Sant Singh - Citation 681173 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '681173',
			'acts' => '<a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 133, 134, 134(1) and 226; <a href="/act/133280/code-of-criminal-procedure-1898-complete-act">Code of Criminal Procedure (CrPC) , 1898</a> - Sections 342, 488, 488(3) and 488(6)',
			'appealno' => 'Criminal Misc. (SCA) No. 855 of 1968',
			'appellant' => 'Harbhajan Kaur',
			'authreffered' => '',
			'casename' => 'Harbhajan Kaur Vs. Sant Singh',
			'casenote' => ' (i) 
Criminal Procedure Code (V of 1898)- Section 488--Proceedings under--nature of--are criminal proceedings and nto Civil proceedings.; The proceedings envisaged by  Chapter xxxvI of the Code cannto be considered 
purely civil proceedings, though the person in default, against whom maintenance order is sought, may nto be an accused person, whose examination without oath is mandatory as prescribed by section 342 of the Code and he may be entitled to appear as a witness as 
well.; Chapter 7-A of Vol. III of Rules and Orders of the Punjab High Court dealing with the maintenance cases also recites that proceedings under section 488 of the Code of Criminal Procedure are of criminal character and the provisions contained therein must, thereforee, be strictly followed.; (ii) Constitution of India - Article 134--Proceedings under Section 488 within the contemplation of--expression--'Criminal proceedings'--scope of.;  That the proceedings under Section 488 Cr. P.C. do fall within the contemplation of criminal proceedings within the meaning of Article 134. 
The expression 'Criminal Proceedings' in this Article is wide enough to include maintenance proceedings adjucated upon by Magistrate initiated under Chapter xxxvI. Such maintenance proceedings are criminal proceedings designed by way of summary process to provide to deserted wives and neglected children adjudication of their civil right of maintenance up to a limited amount enforceable through criminal courts, to avoid the notorious delays of civil proceedings, which may still be utilised for fuller relief under the general law 
in the ordinary civil courts. - Section 13: [Altamas Kabir & Cyriac Joseph,JJ] Custody of child - Welfare of child vis--vis comity of Courts - The minor girl child of 3 1/2 years was brought to India by her mother. The minor girl was a citizen of U.K. being born in U.K. her parents had set up their matrimonial home in U.K. and had acquired status of permanent residents of U.K. The child with her mother was supposed to return to U.K. but the mother cancelled her tickets and remained behind in India. The husband thereupon started procededings before the High Court of Justice, Family Division. U.K. praying for an order that the minor child be made a ward of the Court and for a direction upon the wife to return the minor child to the jurisdiction of the said Court. A further direction was given for the passport and other international travel documents of the minor child to be handed over to the Solicitors of the husband. A petition seeking protection of minor child was thereupon filed by father of the husband before Delhi High Court. A direction for handing over custody of child to father of husband was also sought. The High Court considering fact that the U.K. court was already in seisin of  matter and had passed an interim order and by relying on principle of comity of Nations and Comity of Judgments of the courts of two different countries in deciding the matter directed the wife to take the child of her own to U.K.or hand it over to father of husband to be taken to U.K. as measure of interim custody and that it would be for the U.K. Court to decide the question of custody  -  Order was challenged by wife -  Held, the order of High Court was not liable to be interfered with. Although, on first impression, it would appear that the interests of the minor child would best be served if she is allowed to remain with the wife, the order of U.K. court cannot be lost sight of., The order of U.K. Court except for insisiting that the minor be returned to its jurisdiction, the English Court did not intend to separate the child from the mother until a final decision was taken with regard to the custody of the child. The ultimate decision in that regard has to be left to the English Court having regard to the nationality of the child and the fact that both the parents had worked for gain in the U.K. and had also acquired permanent resident status in the U.K. English Court has not directed that the custody of the child should be handed over to  the father but that the child should be returned to the jurisdiction of the Courts in the U.K. which would then proceed to determine as to who would be best suited to have the custody of the child. The High Court has taken into consideration both the questions relating to the Comity of Courts as well as the interest of the minor child, which, no doubt, is one of the most important considerations in matters relating to custody of a minor child.  -  Provided that, if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if ho is satisfied that there is just ground for so doing. Provided that if the Magistrate is satisfied that he is willfully avoiding service, or willfully neglects to attend the Court, the Magistrate may proceed to hear and determine the case ex parte. Any order so made may be set aside for good cause shown, on application made within three months from the date thereof. It is obvious that the proceedings envisaged by Chapter xxxvi of the Code cannto be considered to be purely civil proceedings, though the person in default, against whom maintenance order is sought, may nto be an accused person whose examination without oath is mandatory as prescribed by Section 342 of the Code and he may be entitled to appear as a witness as well. I am aware of some conflict of judicial opinion in some old cases where on the ground that the procedure of trying maintenance applications being that of a summons case, failure to examine the person proceeded against under Section 342 of the Code, was held to vitiate the proceedings, but that conflict was set at rest by later decisions in which this section was held inapplicable to proceedings under S. These proceedings seem to me to be clearly criminal proceedings and I find no logical and rational basis for holding them to be civil proceedings so as to exclude the applicability of Article 134 of the Constitution. The difference between the relative scope of a civil revision and of a criminal revision is well known and revision against an order under Section 488, Cr. The children in these proceedings may, if they are so advised, even now apply to a competent Court under Section 488 for maintenance and if they make out a good claim to the satisfaction of the Court, I have nto the least doubt that suitable orders would be made in accordance with law.',
			'caseanalysis' => null,
			'casesref' => 'Kapur Singh v. Union of India;',
			'citingcases' => '',
			'counselplain' => ' O.P. Sharma, Adv',
			'counseldef' => ' Madan Bhatia, Adv.',
			'court' => 'Delhi',
			'court_type' => 'HC',
			'decidedon' => '1968-12-17',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' I.D. Dua, C.J.',
			'judgement' => '<p style="text-align: justify;">1. In this application for a certificate of fitness for appeal to the Supreme Court from an order made on revision by this Court in proceedings under Section 488, Cr. P. C, a preliminary objection has been raised that Article 134(1)(c) of the Constitution is inapplicable because proceedings under Section 488 are civil proceedings and nto criminal proceedings. Reliance in support of this preliminary objection has been placed on a decision of the Supreme Court in Nand Lal Misra v. K.L. Misra, : 1960CriLJ1246 . Emphasis has been laid on the observations In this Judgment that Chapter xxxvi of the Code of Criminal Procedure is a self-contained one and the relief given under it is essentially of a civil nature. From this sentence, it is sought to be argued that the proceedings under section 488 are civil proceedings and nto criminal proceedings. Reliance has also been placed on a still more recent Judgment of the Supreme Court in Narayan Row v. Ishwar Lal, : [1965]57ITR149(SC) , in which while dealing with an appeal from an order made by the Bombay High Court under Article 226 of the Constitution, in a matter pertaining to recovery of income-tax, it was observed that the proceedings were civil proceedings within the meaning of Article 133(1)(c) of the Constitution. Reference has next been made to a Full Bench decision of the Punjab High Court in Kapur Singh v. Union of India, where also the question about the nature of proceedings under Articles 133 and 226 of the Constitution came up for discussion. In my opinion, none of these decisions throw helpful light on the question which the preliminary objection poses. Section 488 reads as under:</p><p style="text-align: justify;">'488. Order for maintenance of wives and children.--(1) If any person having sufficient means neglects or refuses to maintain his wife or his legitimate or illegitimate child unable to maintain itself, the District Magistrate, a Presidency Magistrate, a Sub-Divisional Magistrate or 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, at such monthly rate, nto exceeding five hundred rupees in the whole, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate from time to time directs.</p><p style="text-align: justify;"> (2) Such allowance shall be payable from the date of the order, or if so ordered from the date of the application for maintenance.</p><p style="text-align: justify;"> (3) If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in manner hereinbefore provided for levying fines, and may sentence such person, for the whole or any part of each month's allowance remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made:</p><p style="text-align: justify;"> Provided that, if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if ho is satisfied that there is just ground for so doing.</p><p style="text-align: justify;"> If a husband has contracted marriage with another wife or keeps a mistress, it shall be considered to be just ground for his wife's refusal to live with him:</p><p style="text-align: justify;"> Provided, further that no warrant shall be issued for the recovery of any amount due under this direction unless application be made to the Court to levy such amount within a period of one year from the date on which it became due.</p><p style="text-align: justify;"> (4) No wife shall be entitled to receive an allowance from her husband under this section if she is living in adultery, or if, without any sufficient reason she refuses to live with her husband, or if they are living separately by mutual consent.</p><p style="text-align: justify;"> (5) On proof that any wife in whose favor an order has been made under this section is living in adultery, or that without sufficient reason she refuses to live with her husband, or that they are living separately by mutual consent, the Magistrate shall cancel the order.</p><p style="text-align: justify;"> (6) All evidence under this Chapter shall be taken in the presence of the husband or father, as the case may be, or, when his personal attendance is dispensed with, in the presence of his pleader, and shall be recorded in :he manner prescribed in the case of summons-cases:</p><p style="text-align: justify;"> Provided that if the Magistrate is satisfied that he is willfully avoiding service, or willfully neglects to attend the Court, the Magistrate may proceed to hear and determine the case ex parte. Any order so made may be set aside for good cause shown, on application made within three months from the date thereof.</p><p style="text-align: justify;"> (7) The Court in dealing with applications under this section shall have power to make such order as to costs as may be just.</p><p style="text-align: justify;"> (8) Proceedings under this section may be taken against any person in any district where he resides or is, or where he last resided with his wife or, as the case may be, the mother of the illegitimate child.' </p><p style="text-align: justify;">It is obvious that it confers power to order maintenance, on District Magistrates, Presidency Magistrates, Sub-Divisional Magistrates and Magistrates of the 1st Class: Courts which are indisputably criminal Courts and nto civil Courts. Sub-section (6) provides that all evidence under this Chapter has to be taken in the presence of the husband or father, as the case may be, or when his personal attendance is dispensed with, in the presence of his pleader and it is to be recorded in the manner prescribed in the case of summons-cases. This is a further indication that the proceedings are criminal proceedings and nto civil proceedings. The argument that there is no penalty imposed by this section and the proceedings thereforee, cannto be described as 'criminal' is also unacceptable because according to Section 488(3), which provides for enforcement of orders, in certain circumstances, the person in default can be imprisoned for a term which may extend to one month or until payment, if sooner made, though I should nto be understood to hold this consideration to be conclusive on the point either way. It is obvious that the proceedings envisaged by Chapter xxxvi of the Code cannto be considered to be purely civil proceedings, though the person in default, against whom maintenance order is sought, may nto be an accused person whose examination without oath is mandatory as prescribed by Section 342 of the Code and he may be entitled to appear as a witness as well. I am aware of some conflict of judicial opinion in some old cases where on the ground that the procedure of trying maintenance applications being that of a summons case, failure to examine the person proceeded against under Section 342 of the Code, was held to vitiate the proceedings, but that conflict was set at rest by later decisions in which this section was held inapplicable to proceedings under S. 488. However, consistently all the Courts dealing with that question had assumed that the proceedings were criminal proceedings governed by the Code of Criminal Procedure, both in regard to the trial and the power of revision of the Court of the Sessions Judge and of the High Court.</p><p style="text-align: justify;">2. Chapter 7-A of Vol. Iii of Rules and Orders of the Punjab High Court dealing with the maintenance cases also recites that proceedings under Section 488 of the Code of Criminal Procedure are of a criminal character and the provisions contained therein must, thereforee, be strictly followed. Keeping in view the scheme of Chapter xxxvi of the Code of Criminal Procedure and also the scheme of Articles 133 and 134 of the Constitution, I have little hesitation in holding that proceedings under Section 488, Cr. P. C., do fall within the contemplation of criminal proceedings within the meaning of Article 134. The expression 'criminal proceedings' in this Article, seems to me to be wide enough to include maintenance proceedings adjudicated upon by Magistrates initiated under Chapter xxxvI. Such maintenance proceedings are, in my view, criminal proceedings, designed by way of summary process to provide to deserted wives and neglected children, adjudication of their civil right of maintenance up to al limited amount, enforceable through criminal Courts, to avoid the notorious delays of civil proceedings, which may still be utilised for fuller relief under the general law in the ordinary civil Courts.</p><p style="text-align: justify;">3. And then, what directly concerns this Court is the question of the nature of the proceedings on revision in this Court. These proceedings seem to me to be clearly criminal proceedings and I find no logical and rational basis for holding them to be civil proceedings so as to exclude the applicability of Article 134 of the Constitution. Nto only are they registered in this Court as criminal revisions but they are also presented in this Court under the Cr. P. C. and nto under the Civil P. C. The difference between the relative scope of a civil revision and of a criminal revision is well known and revision against an order under Section 488, Cr. P. C. has never been held to my knowledge to be a civil revision so as to exclude the applicability of Art. 134(1)(c) of the Constitution. The preliminary objection is, thereforee, nto easy to sustain.</p><p style="text-align: justify;">4. Coming now to the merits, the learned counsel for the petitioner has very strongly argued that according to Section 488 of the Code, a separate order should have been made granting maintenance to the children. In my opinion, the question which concerns this Court in this present proceedings is nto so much as to what should have been done by the Magistrate while dealing with Section 488, Cr. P. C., but whether there is any such infirmity in the order of this Court as would justify a certificate of fitness within the contemplation of Article 134(1)(c) of the Constitution. It is nto argued, and it cannto be argued, that clause (a) or clause (b) of Article 134(1) covers this case. Clause (c) of this sub-article postulates a case in which a difficult question involving an unsettled principle requires to be finally determined by the Supreme Court. That does nto seem to be the case before me, and indeed no attempt has been made to show that there is any question of principle involved in the impugned order which requires authoritative decision by the Supreme Court. But this apart, the grant of maintenance in this case is a tentative order and it is always open to the authorities to ask for re-consideration and re-determination on account of change of circumstances. The children in these proceedings may, if they are so advised, even now apply to a competent Court under Section 488 for maintenance and if they make out a good claim to the satisfaction of the Court, I have nto the least doubt that suitable orders would be made in accordance with law. The revision on their behalf was held to be barred by time and this Court did nto consider it proper to exercise its suo motu power of revision in this regard. There is no decision on the merits against them by this Court and it has nto been shown that the impugned decision is based on any wrong principle of law which requires further examination by the Supreme Court.</p><p style="text-align: justify;">5. For the foregoing reasons, this application fails and is dismissed.</p><p style="text-align: justify;">6. Application dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
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			'prhistory' => '',
			'pubs' => 'AIR1969Delhi298; 1969CriLJ1243; ILR1968Delhi545',
			'ratiodecidendi' => '',
			'respondent' => 'Sant Singh',
			'sub' => 'Criminal;Constitution',
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$title_for_layout = 'Harbhajan Kaur Vs Sant Singh - Citation 681173 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '681173',
		'acts' => '<a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 133, 134, 134(1) and 226; <a href="/act/133280/code-of-criminal-procedure-1898-complete-act">Code of Criminal Procedure (CrPC) , 1898</a> - Sections 342, 488, 488(3) and 488(6)',
		'appealno' => 'Criminal Misc. (SCA) No. 855 of 1968',
		'appellant' => 'Harbhajan Kaur',
		'authreffered' => '',
		'casename' => 'Harbhajan Kaur Vs. Sant Singh',
		'casenote' => ' (i) 
Criminal Procedure Code (V of 1898)- Section 488--Proceedings under--nature of--are criminal proceedings and nto Civil proceedings.; The proceedings envisaged by  Chapter xxxvI of the Code cannto be considered 
purely civil proceedings, though the person in default, against whom maintenance order is sought, may nto be an accused person, whose examination without oath is mandatory as prescribed by section 342 of the Code and he may be entitled to appear as a witness as 
well.; Chapter 7-A of Vol. III of Rules and Orders of the Punjab High Court dealing with the maintenance cases also recites that proceedings under section 488 of the Code of Criminal Procedure are of criminal character and the provisions contained therein must, thereforee, be strictly followed.; (ii) Constitution of India - Article 134--Proceedings under Section 488 within the contemplation of--expression--'Criminal proceedings'--scope of.;  That the proceedings under Section 488 Cr. P.C. do fall within the contemplation of criminal proceedings within the meaning of Article 134. 
The expression 'Criminal Proceedings' in this Article is wide enough to include maintenance proceedings adjucated upon by Magistrate initiated under Chapter xxxvI. Such maintenance proceedings are criminal proceedings designed by way of summary process to provide to deserted wives and neglected children adjudication of their civil right of maintenance up to a limited amount enforceable through criminal courts, to avoid the notorious delays of civil proceedings, which may still be utilised for fuller relief under the general law 
in the ordinary civil courts. - Section 13: [Altamas Kabir & Cyriac Joseph,JJ] Custody of child - Welfare of child vis--vis comity of Courts - The minor girl child of 3 1/2 years was brought to India by her mother. The minor girl was a citizen of U.K. being born in U.K. her parents had set up their matrimonial home in U.K. and had acquired status of permanent residents of U.K. The child with her mother was supposed to return to U.K. but the mother cancelled her tickets and remained behind in India. The husband thereupon started procededings before the High Court of Justice, Family Division. U.K. praying for an order that the minor child be made a ward of the Court and for a direction upon the wife to return the minor child to the jurisdiction of the said Court. A further direction was given for the passport and other international travel documents of the minor child to be handed over to the Solicitors of the husband. A petition seeking protection of minor child was thereupon filed by father of the husband before Delhi High Court. A direction for handing over custody of child to father of husband was also sought. The High Court considering fact that the U.K. court was already in seisin of  matter and had passed an interim order and by relying on principle of comity of Nations and Comity of Judgments of the courts of two different countries in deciding the matter directed the wife to take the child of her own to U.K.or hand it over to father of husband to be taken to U.K. as measure of interim custody and that it would be for the U.K. Court to decide the question of custody  -  Order was challenged by wife -  Held, the order of High Court was not liable to be interfered with. Although, on first impression, it would appear that the interests of the minor child would best be served if she is allowed to remain with the wife, the order of U.K. court cannot be lost sight of., The order of U.K. Court except for insisiting that the minor be returned to its jurisdiction, the English Court did not intend to separate the child from the mother until a final decision was taken with regard to the custody of the child. The ultimate decision in that regard has to be left to the English Court having regard to the nationality of the child and the fact that both the parents had worked for gain in the U.K. and had also acquired permanent resident status in the U.K. English Court has not directed that the custody of the child should be handed over to  the father but that the child should be returned to the jurisdiction of the Courts in the U.K. which would then proceed to determine as to who would be best suited to have the custody of the child. The High Court has taken into consideration both the questions relating to the Comity of Courts as well as the interest of the minor child, which, no doubt, is one of the most important considerations in matters relating to custody of a minor child.  -  Provided that, if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if ho is satisfied that there is just ground for so doing. Provided that if the Magistrate is satisfied that he is willfully avoiding service, or willfully neglects to attend the Court, the Magistrate may proceed to hear and determine the case ex parte. Any order so made may be set aside for good cause shown, on application made within three months from the date thereof. It is obvious that the proceedings envisaged by Chapter xxxvi of the Code cannto be considered to be purely civil proceedings, though the person in default, against whom maintenance order is sought, may nto be an accused person whose examination without oath is mandatory as prescribed by Section 342 of the Code and he may be entitled to appear as a witness as well. I am aware of some conflict of judicial opinion in some old cases where on the ground that the procedure of trying maintenance applications being that of a summons case, failure to examine the person proceeded against under Section 342 of the Code, was held to vitiate the proceedings, but that conflict was set at rest by later decisions in which this section was held inapplicable to proceedings under S. These proceedings seem to me to be clearly criminal proceedings and I find no logical and rational basis for holding them to be civil proceedings so as to exclude the applicability of Article 134 of the Constitution. The difference between the relative scope of a civil revision and of a criminal revision is well known and revision against an order under Section 488, Cr. The children in these proceedings may, if they are so advised, even now apply to a competent Court under Section 488 for maintenance and if they make out a good claim to the satisfaction of the Court, I have nto the least doubt that suitable orders would be made in accordance with law.',
		'caseanalysis' => null,
		'casesref' => 'Kapur Singh v. Union of India;',
		'citingcases' => '',
		'counselplain' => ' O.P. Sharma, Adv',
		'counseldef' => ' Madan Bhatia, Adv.',
		'court' => 'Delhi',
		'court_type' => 'HC',
		'decidedon' => '1968-12-17',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' I.D. Dua, C.J.',
		'judgement' => '<p>1. In this application for a certificate of fitness for appeal to the Supreme Court from an order made on revision by this Court in proceedings under Section 488, Cr. P. C, a preliminary objection has been raised that Article 134(1)(c) of the Constitution is inapplicable because proceedings under Section 488 are civil proceedings and nto criminal proceedings. Reliance in support of this preliminary objection has been placed on a decision of the Supreme Court in Nand Lal Misra v. K.L. Misra, : 1960CriLJ1246 . Emphasis has been laid on the observations In this Judgment that Chapter xxxvi of the Code of Criminal Procedure is a self-contained one and the relief given under it is essentially of a civil nature. From this sentence, it is sought to be argued that the proceedings under section 488 are civil proceedings and nto criminal proceedings. Reliance has also been placed on a still more recent Judgment of the Supreme Court in Narayan Row v. Ishwar Lal, : [1965]57ITR149(SC) , in which while dealing with an appeal from an order made by the Bombay High Court under Article 226 of the Constitution, in a matter pertaining to recovery of income-tax, it was observed that the proceedings were civil proceedings within the meaning of Article 133(1)(c) of the Constitution. Reference has next been made to a Full Bench decision of the Punjab High Court in Kapur Singh v. Union of India, where also the question about the nature of proceedings under Articles 133 and 226 of the Constitution came up for discussion. In my opinion, none of these decisions throw helpful light on the question which the preliminary objection poses. Section 488 reads as under:</p><p>'488. Order for maintenance of wives and children.--(1) If any person having sufficient means neglects or refuses to maintain his wife or his legitimate or illegitimate child unable to maintain itself, the District Magistrate, a Presidency Magistrate, a Sub-Divisional Magistrate or 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, at such monthly rate, nto exceeding five hundred rupees in the whole, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate from time to time directs.</p><p> (2) Such allowance shall be payable from the date of the order, or if so ordered from the date of the application for maintenance.</p><p> (3) If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in manner hereinbefore provided for levying fines, and may sentence such person, for the whole or any part of each month's allowance remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made:</p><p> Provided that, if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if ho is satisfied that there is just ground for so doing.</p><p> If a husband has contracted marriage with another wife or keeps a mistress, it shall be considered to be just ground for his wife's refusal to live with him:</p><p> Provided, further that no warrant shall be issued for the recovery of any amount due under this direction unless application be made to the Court to levy such amount within a period of one year from the date on which it became due.</p><p> (4) No wife shall be entitled to receive an allowance from her husband under this section if she is living in adultery, or if, without any sufficient reason she refuses to live with her husband, or if they are living separately by mutual consent.</p><p> (5) On proof that any wife in whose favor an order has been made under this section is living in adultery, or that without sufficient reason she refuses to live with her husband, or that they are living separately by mutual consent, the Magistrate shall cancel the order.</p><p> (6) All evidence under this Chapter shall be taken in the presence of the husband or father, as the case may be, or, when his personal attendance is dispensed with, in the presence of his pleader, and shall be recorded in :he manner prescribed in the case of summons-cases:</p><p> Provided that if the Magistrate is satisfied that he is willfully avoiding service, or willfully neglects to attend the Court, the Magistrate may proceed to hear and determine the case ex parte. Any order so made may be set aside for good cause shown, on application made within three months from the date thereof.</p><p> (7) The Court in dealing with applications under this section shall have power to make such order as to costs as may be just.</p><p> (8) Proceedings under this section may be taken against any person in any district where he resides or is, or where he last resided with his wife or, as the case may be, the mother of the illegitimate child.' </p><p>It is obvious that it confers power to order maintenance, on District Magistrates, Presidency Magistrates, Sub-Divisional Magistrates and Magistrates of the 1st Class: Courts which are indisputably criminal Courts and nto civil Courts. Sub-section (6) provides that all evidence under this Chapter has to be taken in the presence of the husband or father, as the case may be, or when his personal attendance is dispensed with, in the presence of his pleader and it is to be recorded in the manner prescribed in the case of summons-cases. This is a further indication that the proceedings are criminal proceedings and nto civil proceedings. The argument that there is no penalty imposed by this section and the proceedings thereforee, cannto be described as 'criminal' is also unacceptable because according to Section 488(3), which provides for enforcement of orders, in certain circumstances, the person in default can be imprisoned for a term which may extend to one month or until payment, if sooner made, though I should nto be understood to hold this consideration to be conclusive on the point either way. It is obvious that the proceedings envisaged by Chapter xxxvi of the Code cannto be considered to be purely civil proceedings, though the person in default, against whom maintenance order is sought, may nto be an accused person whose examination without oath is mandatory as prescribed by Section 342 of the Code and he may be entitled to appear as a witness as well. I am aware of some conflict of judicial opinion in some old cases where on the ground that the procedure of trying maintenance applications being that of a summons case, failure to examine the person proceeded against under Section 342 of the Code, was held to vitiate the proceedings, but that conflict was set at rest by later decisions in which this section was held inapplicable to proceedings under S. 488. However, consistently all the Courts dealing with that question had assumed that the proceedings were criminal proceedings governed by the Code of Criminal Procedure, both in regard to the trial and the power of revision of the Court of the Sessions Judge and of the High Court.</p><p>2. Chapter 7-A of Vol. Iii of Rules and Orders of the Punjab High Court dealing with the maintenance cases also recites that proceedings under Section 488 of the Code of Criminal Procedure are of a criminal character and the provisions contained therein must, thereforee, be strictly followed. Keeping in view the scheme of Chapter xxxvi of the Code of Criminal Procedure and also the scheme of Articles 133 and 134 of the Constitution, I have little hesitation in holding that proceedings under Section 488, Cr. P. C., do fall within the contemplation of criminal proceedings within the meaning of Article 134. The expression 'criminal proceedings' in this Article, seems to me to be wide enough to include maintenance proceedings adjudicated upon by Magistrates initiated under Chapter xxxvI. Such maintenance proceedings are, in my view, criminal proceedings, designed by way of summary process to provide to deserted wives and neglected children, adjudication of their civil right of maintenance up to al limited amount, enforceable through criminal Courts, to avoid the notorious delays of civil proceedings, which may still be utilised for fuller relief under the general law in the ordinary civil Courts.</p><p>3. And then, what directly concerns this Court is the question of the nature of the proceedings on revision in this Court. These proceedings seem to me to be clearly criminal proceedings and I find no logical and rational basis for holding them to be civil proceedings so as to exclude the applicability of Article 134 of the Constitution. Nto only are they registered in this Court as criminal revisions but they are also presented in this Court under the Cr. P. C. and nto under the Civil P. C. The difference between the relative scope of a civil revision and of a criminal revision is well known and revision against an order under Section 488, Cr. P. C. has never been held to my knowledge to be a civil revision so as to exclude the applicability of Art. 134(1)(c) of the Constitution. The preliminary objection is, thereforee, nto easy to sustain.</p><p>4. Coming now to the merits, the learned counsel for the petitioner has very strongly argued that according to Section 488 of the Code, a separate order should have been made granting maintenance to the children. In my opinion, the question which concerns this Court in this present proceedings is nto so much as to what should have been done by the Magistrate while dealing with Section 488, Cr. P. C., but whether there is any such infirmity in the order of this Court as would justify a certificate of fitness within the contemplation of Article 134(1)(c) of the Constitution. It is nto argued, and it cannto be argued, that clause (a) or clause (b) of Article 134(1) covers this case. Clause (c) of this sub-article postulates a case in which a difficult question involving an unsettled principle requires to be finally determined by the Supreme Court. That does nto seem to be the case before me, and indeed no attempt has been made to show that there is any question of principle involved in the impugned order which requires authoritative decision by the Supreme Court. But this apart, the grant of maintenance in this case is a tentative order and it is always open to the authorities to ask for re-consideration and re-determination on account of change of circumstances. The children in these proceedings may, if they are so advised, even now apply to a competent Court under Section 488 for maintenance and if they make out a good claim to the satisfaction of the Court, I have nto the least doubt that suitable orders would be made in accordance with law. The revision on their behalf was held to be barred by time and this Court did nto consider it proper to exercise its suo motu power of revision in this regard. There is no decision on the merits against them by this Court and it has nto been shown that the impugned decision is based on any wrong principle of law which requires further examination by the Supreme Court.</p><p>5. For the foregoing reasons, this application fails and is dismissed.</p><p>6. Application dismissed.<p></p><p>',
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		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'AIR1969Delhi298; 1969CriLJ1243; ILR1968Delhi545',
		'ratiodecidendi' => '',
		'respondent' => 'Sant Singh',
		'sub' => 'Criminal;Constitution',
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		'circuit' => null
	)
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	'title_for_layout' => 'Harbhajan Kaur Vs Sant Singh - Citation 681173 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '681173',
			'acts' => '<a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 133, 134, 134(1) and 226; <a href="/act/133280/code-of-criminal-procedure-1898-complete-act">Code of Criminal Procedure (CrPC) , 1898</a> - Sections 342, 488, 488(3) and 488(6)',
			'appealno' => 'Criminal Misc. (SCA) No. 855 of 1968',
			'appellant' => 'Harbhajan Kaur',
			'authreffered' => '',
			'casename' => 'Harbhajan Kaur Vs. Sant Singh',
			'casenote' => ' (i) 
Criminal Procedure Code (V of 1898)- Section 488--Proceedings under--nature of--are criminal proceedings and nto Civil proceedings.; The proceedings envisaged by  Chapter xxxvI of the Code cannto be considered 
purely civil proceedings, though the person in default, against whom maintenance order is sought, may nto be an accused person, whose examination without oath is mandatory as prescribed by section 342 of the Code and he may be entitled to appear as a witness as 
well.; Chapter 7-A of Vol. III of Rules and Orders of the Punjab High Court dealing with the maintenance cases also recites that proceedings under section 488 of the Code of Criminal Procedure are of criminal character and the provisions contained therein must, thereforee, be strictly followed.; (ii) Constitution of India - Article 134--Proceedings under Section 488 within the contemplation of--expression--'Criminal proceedings'--scope of.;  That the proceedings under Section 488 Cr. P.C. do fall within the contemplation of criminal proceedings within the meaning of Article 134. 
The expression 'Criminal Proceedings' in this Article is wide enough to include maintenance proceedings adjucated upon by Magistrate initiated under Chapter xxxvI. Such maintenance proceedings are criminal proceedings designed by way of summary process to provide to deserted wives and neglected children adjudication of their civil right of maintenance up to a limited amount enforceable through criminal courts, to avoid the notorious delays of civil proceedings, which may still be utilised for fuller relief under the general law 
in the ordinary civil courts. - Section 13: [Altamas Kabir & Cyriac Joseph,JJ] Custody of child - Welfare of child vis--vis comity of Courts - The minor girl child of 3 1/2 years was brought to India by her mother. The minor girl was a citizen of U.K. being born in U.K. her parents had set up their matrimonial home in U.K. and had acquired status of permanent residents of U.K. The child with her mother was supposed to return to U.K. but the mother cancelled her tickets and remained behind in India. The husband thereupon started procededings before the High Court of Justice, Family Division. U.K. praying for an order that the minor child be made a ward of the Court and for a direction upon the wife to return the minor child to the jurisdiction of the said Court. A further direction was given for the passport and other international travel documents of the minor child to be handed over to the Solicitors of the husband. A petition seeking protection of minor child was thereupon filed by father of the husband before Delhi High Court. A direction for handing over custody of child to father of husband was also sought. The High Court considering fact that the U.K. court was already in seisin of  matter and had passed an interim order and by relying on principle of comity of Nations and Comity of Judgments of the courts of two different countries in deciding the matter directed the wife to take the child of her own to U.K.or hand it over to father of husband to be taken to U.K. as measure of interim custody and that it would be for the U.K. Court to decide the question of custody  -  Order was challenged by wife -  Held, the order of High Court was not liable to be interfered with. Although, on first impression, it would appear that the interests of the minor child would best be served if she is allowed to remain with the wife, the order of U.K. court cannot be lost sight of., The order of U.K. Court except for insisiting that the minor be returned to its jurisdiction, the English Court did not intend to separate the child from the mother until a final decision was taken with regard to the custody of the child. The ultimate decision in that regard has to be left to the English Court having regard to the nationality of the child and the fact that both the parents had worked for gain in the U.K. and had also acquired permanent resident status in the U.K. English Court has not directed that the custody of the child should be handed over to  the father but that the child should be returned to the jurisdiction of the Courts in the U.K. which would then proceed to determine as to who would be best suited to have the custody of the child. The High Court has taken into consideration both the questions relating to the Comity of Courts as well as the interest of the minor child, which, no doubt, is one of the most important considerations in matters relating to custody of a minor child.  -  Provided that, if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if ho is satisfied that there is just ground for so doing. Provided that if the Magistrate is satisfied that he is willfully avoiding service, or willfully neglects to attend the Court, the Magistrate may proceed to hear and determine the case ex parte. Any order so made may be set aside for good cause shown, on application made within three months from the date thereof. It is obvious that the proceedings envisaged by Chapter xxxvi of the Code cannto be considered to be purely civil proceedings, though the person in default, against whom maintenance order is sought, may nto be an accused person whose examination without oath is mandatory as prescribed by Section 342 of the Code and he may be entitled to appear as a witness as well. I am aware of some conflict of judicial opinion in some old cases where on the ground that the procedure of trying maintenance applications being that of a summons case, failure to examine the person proceeded against under Section 342 of the Code, was held to vitiate the proceedings, but that conflict was set at rest by later decisions in which this section was held inapplicable to proceedings under S. These proceedings seem to me to be clearly criminal proceedings and I find no logical and rational basis for holding them to be civil proceedings so as to exclude the applicability of Article 134 of the Constitution. The difference between the relative scope of a civil revision and of a criminal revision is well known and revision against an order under Section 488, Cr. The children in these proceedings may, if they are so advised, even now apply to a competent Court under Section 488 for maintenance and if they make out a good claim to the satisfaction of the Court, I have nto the least doubt that suitable orders would be made in accordance with law.',
			'caseanalysis' => null,
			'casesref' => 'Kapur Singh v. Union of India;',
			'citingcases' => '',
			'counselplain' => ' O.P. Sharma, Adv',
			'counseldef' => ' Madan Bhatia, Adv.',
			'court' => 'Delhi',
			'court_type' => 'HC',
			'decidedon' => '1968-12-17',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' I.D. Dua, C.J.',
			'judgement' => '<p style="text-align: justify;">1. In this application for a certificate of fitness for appeal to the Supreme Court from an order made on revision by this Court in proceedings under Section 488, Cr. P. C, a preliminary objection has been raised that Article 134(1)(c) of the Constitution is inapplicable because proceedings under Section 488 are civil proceedings and nto criminal proceedings. Reliance in support of this preliminary objection has been placed on a decision of the Supreme Court in Nand Lal Misra v. K.L. Misra, : 1960CriLJ1246 . Emphasis has been laid on the observations In this Judgment that Chapter xxxvi of the Code of Criminal Procedure is a self-contained one and the relief given under it is essentially of a civil nature. From this sentence, it is sought to be argued that the proceedings under section 488 are civil proceedings and nto criminal proceedings. Reliance has also been placed on a still more recent Judgment of the Supreme Court in Narayan Row v. Ishwar Lal, : [1965]57ITR149(SC) , in which while dealing with an appeal from an order made by the Bombay High Court under Article 226 of the Constitution, in a matter pertaining to recovery of income-tax, it was observed that the proceedings were civil proceedings within the meaning of Article 133(1)(c) of the Constitution. Reference has next been made to a Full Bench decision of the Punjab High Court in Kapur Singh v. Union of India, where also the question about the nature of proceedings under Articles 133 and 226 of the Constitution came up for discussion. In my opinion, none of these decisions throw helpful light on the question which the preliminary objection poses. Section 488 reads as under:</p><p style="text-align: justify;">'488. Order for maintenance of wives and children.--(1) If any person having sufficient means neglects or refuses to maintain his wife or his legitimate or illegitimate child unable to maintain itself, the District Magistrate, a Presidency Magistrate, a Sub-Divisional Magistrate or 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, at such monthly rate, nto exceeding five hundred rupees in the whole, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate from time to time directs.</p><p style="text-align: justify;"> (2) Such allowance shall be payable from the date of the order, or if so ordered from the date of the application for maintenance.</p><p style="text-align: justify;"> (3) If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in manner hereinbefore provided for levying fines, and may sentence such person, for the whole or any part of each month's allowance remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made:</p><p style="text-align: justify;"> Provided that, if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if ho is satisfied that there is just ground for so doing.</p><p style="text-align: justify;"> If a husband has contracted marriage with another wife or keeps a mistress, it shall be considered to be just ground for his wife's refusal to live with him:</p><p style="text-align: justify;"> Provided, further that no warrant shall be issued for the recovery of any amount due under this direction unless application be made to the Court to levy such amount within a period of one year from the date on which it became due.</p><p style="text-align: justify;"> (4) No wife shall be entitled to receive an allowance from her husband under this section if she is living in adultery, or if, without any sufficient reason she refuses to live with her husband, or if they are living separately by mutual consent.</p><p style="text-align: justify;"> (5) On proof that any wife in whose favor an order has been made under this section is living in adultery, or that without sufficient reason she refuses to live with her husband, or that they are living separately by mutual consent, the Magistrate shall cancel the order.</p><p style="text-align: justify;"> (6) All evidence under this Chapter shall be taken in the presence of the husband or father, as the case may be, or, when his personal attendance is dispensed with, in the presence of his pleader, and shall be recorded in :he manner prescribed in the case of summons-cases:</p><p style="text-align: justify;"> Provided that if the Magistrate is satisfied that he is willfully avoiding service, or willfully neglects to attend the Court, the Magistrate may proceed to hear and determine the case ex parte. Any order so made may be set aside for good cause shown, on application made within three months from the date thereof.</p><p style="text-align: justify;"> (7) The Court in dealing with applications under this section shall have power to make such order as to costs as may be just.</p><p style="text-align: justify;"> (8) Proceedings under this section may be taken against any person in any district where he resides or is, or where he last resided with his wife or, as the case may be, the mother of the illegitimate child.' </p><p style="text-align: justify;">It is obvious that it confers power to order maintenance, on District Magistrates, Presidency Magistrates, Sub-Divisional Magistrates and Magistrates of the 1st Class: Courts which are indisputably criminal Courts and nto civil Courts. Sub-section (6) provides that all evidence under this Chapter has to be taken in the presence of the husband or father, as the case may be, or when his personal attendance is dispensed with, in the presence of his pleader and it is to be recorded in the manner prescribed in the case of summons-cases. This is a further indication that the proceedings are criminal proceedings and nto civil proceedings. The argument that there is no penalty imposed by this section and the proceedings thereforee, cannto be described as 'criminal' is also unacceptable because according to Section 488(3), which provides for enforcement of orders, in certain circumstances, the person in default can be imprisoned for a term which may extend to one month or until payment, if sooner made, though I should nto be understood to hold this consideration to be conclusive on the point either way. It is obvious that the proceedings envisaged by Chapter xxxvi of the Code cannto be considered to be purely civil proceedings, though the person in default, against whom maintenance order is sought, may nto be an accused person whose examination without oath is mandatory as prescribed by Section 342 of the Code and he may be entitled to appear as a witness as well. I am aware of some conflict of judicial opinion in some old cases where on the ground that the procedure of trying maintenance applications being that of a summons case, failure to examine the person proceeded against under Section 342 of the Code, was held to vitiate the proceedings, but that conflict was set at rest by later decisions in which this section was held inapplicable to proceedings under S. 488. However, consistently all the Courts dealing with that question had assumed that the proceedings were criminal proceedings governed by the Code of Criminal Procedure, both in regard to the trial and the power of revision of the Court of the Sessions Judge and of the High Court.</p><p style="text-align: justify;">2. Chapter 7-A of Vol. Iii of Rules and Orders of the Punjab High Court dealing with the maintenance cases also recites that proceedings under Section 488 of the Code of Criminal Procedure are of a criminal character and the provisions contained therein must, thereforee, be strictly followed. Keeping in view the scheme of Chapter xxxvi of the Code of Criminal Procedure and also the scheme of Articles 133 and 134 of the Constitution, I have little hesitation in holding that proceedings under Section 488, Cr. P. C., do fall within the contemplation of criminal proceedings within the meaning of Article 134. The expression 'criminal proceedings' in this Article, seems to me to be wide enough to include maintenance proceedings adjudicated upon by Magistrates initiated under Chapter xxxvI. Such maintenance proceedings are, in my view, criminal proceedings, designed by way of summary process to provide to deserted wives and neglected children, adjudication of their civil right of maintenance up to al limited amount, enforceable through criminal Courts, to avoid the notorious delays of civil proceedings, which may still be utilised for fuller relief under the general law in the ordinary civil Courts.</p><p style="text-align: justify;">3. And then, what directly concerns this Court is the question of the nature of the proceedings on revision in this Court. These proceedings seem to me to be clearly criminal proceedings and I find no logical and rational basis for holding them to be civil proceedings so as to exclude the applicability of Article 134 of the Constitution. Nto only are they registered in this Court as criminal revisions but they are also presented in this Court under the Cr. P. C. and nto under the Civil P. C. The difference between the relative scope of a civil revision and of a criminal revision is well known and revision against an order under Section 488, Cr. P. C. has never been held to my knowledge to be a civil revision so as to exclude the applicability of Art. 134(1)(c) of the Constitution. The preliminary objection is, thereforee, nto easy to sustain.</p><p style="text-align: justify;">4. Coming now to the merits, the learned counsel for the petitioner has very strongly argued that according to Section 488 of the Code, a separate order should have been made granting maintenance to the children. In my opinion, the question which concerns this Court in this present proceedings is nto so much as to what should have been done by the Magistrate while dealing with Section 488, Cr. P. C., but whether there is any such infirmity in the order of this Court as would justify a certificate of fitness within the contemplation of Article 134(1)(c) of the Constitution. It is nto argued, and it cannto be argued, that clause (a) or clause (b) of Article 134(1) covers this case. Clause (c) of this sub-article postulates a case in which a difficult question involving an unsettled principle requires to be finally determined by the Supreme Court. That does nto seem to be the case before me, and indeed no attempt has been made to show that there is any question of principle involved in the impugned order which requires authoritative decision by the Supreme Court. But this apart, the grant of maintenance in this case is a tentative order and it is always open to the authorities to ask for re-consideration and re-determination on account of change of circumstances. The children in these proceedings may, if they are so advised, even now apply to a competent Court under Section 488 for maintenance and if they make out a good claim to the satisfaction of the Court, I have nto the least doubt that suitable orders would be made in accordance with law. The revision on their behalf was held to be barred by time and this Court did nto consider it proper to exercise its suo motu power of revision in this regard. There is no decision on the merits against them by this Court and it has nto been shown that the impugned decision is based on any wrong principle of law which requires further examination by the Supreme Court.</p><p style="text-align: justify;">5. For the foregoing reasons, this application fails and is dismissed.</p><p style="text-align: justify;">6. Application dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => 'AIR1969Delhi298; 1969CriLJ1243; ILR1968Delhi545',
			'ratiodecidendi' => '',
			'respondent' => 'Sant Singh',
			'sub' => 'Criminal;Constitution',
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			'circuit' => null
		)
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	'casename_url' => 'harbhajan-kaur-vs-sant-singh',
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$title_for_layout = 'Harbhajan Kaur Vs Sant Singh - Citation 681173 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '681173',
		'acts' => '<a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 133, 134, 134(1) and 226; <a href="/act/133280/code-of-criminal-procedure-1898-complete-act">Code of Criminal Procedure (CrPC) , 1898</a> - Sections 342, 488, 488(3) and 488(6)',
		'appealno' => 'Criminal Misc. (SCA) No. 855 of 1968',
		'appellant' => 'Harbhajan Kaur',
		'authreffered' => '',
		'casename' => 'Harbhajan Kaur Vs. Sant Singh',
		'casenote' => ' (i) 
Criminal Procedure Code (V of 1898)- Section 488--Proceedings under--nature of--are criminal proceedings and nto Civil proceedings.; The proceedings envisaged by  Chapter xxxvI of the Code cannto be considered 
purely civil proceedings, though the person in default, against whom maintenance order is sought, may nto be an accused person, whose examination without oath is mandatory as prescribed by section 342 of the Code and he may be entitled to appear as a witness as 
well.; Chapter 7-A of Vol. III of Rules and Orders of the Punjab High Court dealing with the maintenance cases also recites that proceedings under section 488 of the Code of Criminal Procedure are of criminal character and the provisions contained therein must, thereforee, be strictly followed.; (ii) Constitution of India - Article 134--Proceedings under Section 488 within the contemplation of--expression--'Criminal proceedings'--scope of.;  That the proceedings under Section 488 Cr. P.C. do fall within the contemplation of criminal proceedings within the meaning of Article 134. 
The expression 'Criminal Proceedings' in this Article is wide enough to include maintenance proceedings adjucated upon by Magistrate initiated under Chapter xxxvI. Such maintenance proceedings are criminal proceedings designed by way of summary process to provide to deserted wives and neglected children adjudication of their civil right of maintenance up to a limited amount enforceable through criminal courts, to avoid the notorious delays of civil proceedings, which may still be utilised for fuller relief under the general law 
in the ordinary civil courts. - Section 13: [Altamas Kabir & Cyriac Joseph,JJ] Custody of child - Welfare of child vis--vis comity of Courts - The minor girl child of 3 1/2 years was brought to India by her mother. The minor girl was a citizen of U.K. being born in U.K. her parents had set up their matrimonial home in U.K. and had acquired status of permanent residents of U.K. The child with her mother was supposed to return to U.K. but the mother cancelled her tickets and remained behind in India. The husband thereupon started procededings before the High Court of Justice, Family Division. U.K. praying for an order that the minor child be made a ward of the Court and for a direction upon the wife to return the minor child to the jurisdiction of the said Court. A further direction was given for the passport and other international travel documents of the minor child to be handed over to the Solicitors of the husband. A petition seeking protection of minor child was thereupon filed by father of the husband before Delhi High Court. A direction for handing over custody of child to father of husband was also sought. The High Court considering fact that the U.K. court was already in seisin of  matter and had passed an interim order and by relying on principle of comity of Nations and Comity of Judgments of the courts of two different countries in deciding the matter directed the wife to take the child of her own to U.K.or hand it over to father of husband to be taken to U.K. as measure of interim custody and that it would be for the U.K. Court to decide the question of custody  -  Order was challenged by wife -  Held, the order of High Court was not liable to be interfered with. Although, on first impression, it would appear that the interests of the minor child would best be served if she is allowed to remain with the wife, the order of U.K. court cannot be lost sight of., The order of U.K. Court except for insisiting that the minor be returned to its jurisdiction, the English Court did not intend to separate the child from the mother until a final decision was taken with regard to the custody of the child. The ultimate decision in that regard has to be left to the English Court having regard to the nationality of the child and the fact that both the parents had worked for gain in the U.K. and had also acquired permanent resident status in the U.K. English Court has not directed that the custody of the child should be handed over to  the father but that the child should be returned to the jurisdiction of the Courts in the U.K. which would then proceed to determine as to who would be best suited to have the custody of the child. The High Court has taken into consideration both the questions relating to the Comity of Courts as well as the interest of the minor child, which, no doubt, is one of the most important considerations in matters relating to custody of a minor child.  -  Provided that, if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if ho is satisfied that there is just ground for so doing. Provided that if the Magistrate is satisfied that he is willfully avoiding service, or willfully neglects to attend the Court, the Magistrate may proceed to hear and determine the case ex parte. Any order so made may be set aside for good cause shown, on application made within three months from the date thereof. It is obvious that the proceedings envisaged by Chapter xxxvi of the Code cannto be considered to be purely civil proceedings, though the person in default, against whom maintenance order is sought, may nto be an accused person whose examination without oath is mandatory as prescribed by Section 342 of the Code and he may be entitled to appear as a witness as well. I am aware of some conflict of judicial opinion in some old cases where on the ground that the procedure of trying maintenance applications being that of a summons case, failure to examine the person proceeded against under Section 342 of the Code, was held to vitiate the proceedings, but that conflict was set at rest by later decisions in which this section was held inapplicable to proceedings under S. These proceedings seem to me to be clearly criminal proceedings and I find no logical and rational basis for holding them to be civil proceedings so as to exclude the applicability of Article 134 of the Constitution. The difference between the relative scope of a civil revision and of a criminal revision is well known and revision against an order under Section 488, Cr. The children in these proceedings may, if they are so advised, even now apply to a competent Court under Section 488 for maintenance and if they make out a good claim to the satisfaction of the Court, I have nto the least doubt that suitable orders would be made in accordance with law.',
		'caseanalysis' => null,
		'casesref' => 'Kapur Singh v. Union of India;',
		'citingcases' => '',
		'counselplain' => ' O.P. Sharma, Adv',
		'counseldef' => ' Madan Bhatia, Adv.',
		'court' => 'Delhi',
		'court_type' => 'HC',
		'decidedon' => '1968-12-17',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' I.D. Dua, C.J.',
		'judgement' => '<p>1. In this application for a certificate of fitness for appeal to the Supreme Court from an order made on revision by this Court in proceedings under Section 488, Cr. P. C, a preliminary objection has been raised that Article 134(1)(c) of the Constitution is inapplicable because proceedings under Section 488 are civil proceedings and nto criminal proceedings. Reliance in support of this preliminary objection has been placed on a decision of the Supreme Court in Nand Lal Misra v. K.L. Misra, : 1960CriLJ1246 . Emphasis has been laid on the observations In this Judgment that Chapter xxxvi of the Code of Criminal Procedure is a self-contained one and the relief given under it is essentially of a civil nature. From this sentence, it is sought to be argued that the proceedings under section 488 are civil proceedings and nto criminal proceedings. Reliance has also been placed on a still more recent Judgment of the Supreme Court in Narayan Row v. Ishwar Lal, : [1965]57ITR149(SC) , in which while dealing with an appeal from an order made by the Bombay High Court under Article 226 of the Constitution, in a matter pertaining to recovery of income-tax, it was observed that the proceedings were civil proceedings within the meaning of Article 133(1)(c) of the Constitution. Reference has next been made to a Full Bench decision of the Punjab High Court in Kapur Singh v. Union of India, where also the question about the nature of proceedings under Articles 133 and 226 of the Constitution came up for discussion. In my opinion, none of these decisions throw helpful light on the question which the preliminary objection poses. Section 488 reads as under:</p><p>'488. Order for maintenance of wives and children.--(1) If any person having sufficient means neglects or refuses to maintain his wife or his legitimate or illegitimate child unable to maintain itself, the District Magistrate, a Presidency Magistrate, a Sub-Divisional Magistrate or 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, at such monthly rate, nto exceeding five hundred rupees in the whole, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate from time to time directs.</p><p> (2) Such allowance shall be payable from the date of the order, or if so ordered from the date of the application for maintenance.</p><p> (3) If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in manner hereinbefore provided for levying fines, and may sentence such person, for the whole or any part of each month's allowance remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made:</p><p> Provided that, if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if ho is satisfied that there is just ground for so doing.</p><p> If a husband has contracted marriage with another wife or keeps a mistress, it shall be considered to be just ground for his wife's refusal to live with him:</p><p> Provided, further that no warrant shall be issued for the recovery of any amount due under this direction unless application be made to the Court to levy such amount within a period of one year from the date on which it became due.</p><p> (4) No wife shall be entitled to receive an allowance from her husband under this section if she is living in adultery, or if, without any sufficient reason she refuses to live with her husband, or if they are living separately by mutual consent.</p><p> (5) On proof that any wife in whose favor an order has been made under this section is living in adultery, or that without sufficient reason she refuses to live with her husband, or that they are living separately by mutual consent, the Magistrate shall cancel the order.</p><p> (6) All evidence under this Chapter shall be taken in the presence of the husband or father, as the case may be, or, when his personal attendance is dispensed with, in the presence of his pleader, and shall be recorded in :he manner prescribed in the case of summons-cases:</p><p> Provided that if the Magistrate is satisfied that he is willfully avoiding service, or willfully neglects to attend the Court, the Magistrate may proceed to hear and determine the case ex parte. Any order so made may be set aside for good cause shown, on application made within three months from the date thereof.</p><p> (7) The Court in dealing with applications under this section shall have power to make such order as to costs as may be just.</p><p> (8) Proceedings under this section may be taken against any person in any district where he resides or is, or where he last resided with his wife or, as the case may be, the mother of the illegitimate child.' </p><p>It is obvious that it confers power to order maintenance, on District Magistrates, Presidency Magistrates, Sub-Divisional Magistrates and Magistrates of the 1st Class: Courts which are indisputably criminal Courts and nto civil Courts. Sub-section (6) provides that all evidence under this Chapter has to be taken in the presence of the husband or father, as the case may be, or when his personal attendance is dispensed with, in the presence of his pleader and it is to be recorded in the manner prescribed in the case of summons-cases. This is a further indication that the proceedings are criminal proceedings and nto civil proceedings. The argument that there is no penalty imposed by this section and the proceedings thereforee, cannto be described as 'criminal' is also unacceptable because according to Section 488(3), which provides for enforcement of orders, in certain circumstances, the person in default can be imprisoned for a term which may extend to one month or until payment, if sooner made, though I should nto be understood to hold this consideration to be conclusive on the point either way. It is obvious that the proceedings envisaged by Chapter xxxvi of the Code cannto be considered to be purely civil proceedings, though the person in default, against whom maintenance order is sought, may nto be an accused person whose examination without oath is mandatory as prescribed by Section 342 of the Code and he may be entitled to appear as a witness as well. I am aware of some conflict of judicial opinion in some old cases where on the ground that the procedure of trying maintenance applications being that of a summons case, failure to examine the person proceeded against under Section 342 of the Code, was held to vitiate the proceedings, but that conflict was set at rest by later decisions in which this section was held inapplicable to proceedings under S. 488. However, consistently all the Courts dealing with that question had assumed that the proceedings were criminal proceedings governed by the Code of Criminal Procedure, both in regard to the trial and the power of revision of the Court of the Sessions Judge and of the High Court.</p><p>2. Chapter 7-A of Vol. Iii of Rules and Orders of the Punjab High Court dealing with the maintenance cases also recites that proceedings under Section 488 of the Code of Criminal Procedure are of a criminal character and the provisions contained therein must, thereforee, be strictly followed. Keeping in view the scheme of Chapter xxxvi of the Code of Criminal Procedure and also the scheme of Articles 133 and 134 of the Constitution, I have little hesitation in holding that proceedings under Section 488, Cr. P. C., do fall within the contemplation of criminal proceedings within the meaning of Article 134. The expression 'criminal proceedings' in this Article, seems to me to be wide enough to include maintenance proceedings adjudicated upon by Magistrates initiated under Chapter xxxvI. Such maintenance proceedings are, in my view, criminal proceedings, designed by way of summary process to provide to deserted wives and neglected children, adjudication of their civil right of maintenance up to al limited amount, enforceable through criminal Courts, to avoid the notorious delays of civil proceedings, which may still be utilised for fuller relief under the general law in the ordinary civil Courts.</p><p>3. And then, what directly concerns this Court is the question of the nature of the proceedings on revision in this Court. These proceedings seem to me to be clearly criminal proceedings and I find no logical and rational basis for holding them to be civil proceedings so as to exclude the applicability of Article 134 of the Constitution. Nto only are they registered in this Court as criminal revisions but they are also presented in this Court under the Cr. P. C. and nto under the Civil P. C. The difference between the relative scope of a civil revision and of a criminal revision is well known and revision against an order under Section 488, Cr. P. C. has never been held to my knowledge to be a civil revision so as to exclude the applicability of Art. 134(1)(c) of the Constitution. The preliminary objection is, thereforee, nto easy to sustain.</p><p>4. Coming now to the merits, the learned counsel for the petitioner has very strongly argued that according to Section 488 of the Code, a separate order should have been made granting maintenance to the children. In my opinion, the question which concerns this Court in this present proceedings is nto so much as to what should have been done by the Magistrate while dealing with Section 488, Cr. P. C., but whether there is any such infirmity in the order of this Court as would justify a certificate of fitness within the contemplation of Article 134(1)(c) of the Constitution. It is nto argued, and it cannto be argued, that clause (a) or clause (b) of Article 134(1) covers this case. Clause (c) of this sub-article postulates a case in which a difficult question involving an unsettled principle requires to be finally determined by the Supreme Court. That does nto seem to be the case before me, and indeed no attempt has been made to show that there is any question of principle involved in the impugned order which requires authoritative decision by the Supreme Court. But this apart, the grant of maintenance in this case is a tentative order and it is always open to the authorities to ask for re-consideration and re-determination on account of change of circumstances. The children in these proceedings may, if they are so advised, even now apply to a competent Court under Section 488 for maintenance and if they make out a good claim to the satisfaction of the Court, I have nto the least doubt that suitable orders would be made in accordance with law. The revision on their behalf was held to be barred by time and this Court did nto consider it proper to exercise its suo motu power of revision in this regard. There is no decision on the merits against them by this Court and it has nto been shown that the impugned decision is based on any wrong principle of law which requires further examination by the Supreme Court.</p><p>5. For the foregoing reasons, this application fails and is dismissed.</p><p>6. Application dismissed.<p></p><p>',
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		'prhistory' => '',
		'pubs' => 'AIR1969Delhi298; 1969CriLJ1243; ILR1968Delhi545',
		'ratiodecidendi' => '',
		'respondent' => 'Sant Singh',
		'sub' => 'Criminal;Constitution',
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$content = array(
	(int) 0 => '<p>1. In this application for a certificate of fitness for appeal to the Supreme Court from an order made on revision by this Court in proceedings under Section 488, Cr. P. C, a preliminary objection has been raised that Article 134(1)(c) of the Constitution is inapplicable because proceedings under Section 488 are civil proceedings and nto criminal proceedings. Reliance in support of this preliminary objection has been placed on a decision of the Supreme Court in Nand Lal Misra v. K.L. Misra, : 1960CriLJ1246 . Emphasis has been laid on the observations In this Judgment that Chapter xxxvi of the Code of Criminal Procedure is a self-contained one and the relief given under it is essentially of a civil nature. From this sentence, it is sought to be argued that the proceedings under section 488 are civil proceedings and nto criminal proceedings. Reliance has also been placed on a still more recent Judgment of the Supreme Court in Narayan Row v. Ishwar Lal, : [1965]57ITR149(SC) , in which while dealing with an appeal from an order made by the Bombay High Court under Article 226 of the Constitution, in a matter pertaining to recovery of income-tax, it was observed that the proceedings were civil proceedings within the meaning of Article 133(1)(c) of the Constitution. Reference has next been made to a Full Bench decision of the Punjab High Court in Kapur Singh v. Union of India, where also the question about the nature of proceedings under Articles 133 and 226 of the Constitution came up for discussion. In my opinion, none of these decisions throw helpful light on the question which the preliminary objection poses. Section 488 reads as under:',
	(int) 1 => '<p>'488. Order for maintenance of wives and children.--(1) If any person having sufficient means neglects or refuses to maintain his wife or his legitimate or illegitimate child unable to maintain itself, the District Magistrate, a Presidency Magistrate, a Sub-Divisional Magistrate or 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, at such monthly rate, nto exceeding five hundred rupees in the whole, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate from time to time directs.',
	(int) 2 => '<p> (2) Such allowance shall be payable from the date of the order, or if so ordered from the date of the application for maintenance.',
	(int) 3 => '<p> (3) If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in manner hereinbefore provided for levying fines, and may sentence such person, for the whole or any part of each month's allowance remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made:',
	(int) 4 => '<p> Provided that, if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if ho is satisfied that there is just ground for so doing.',
	(int) 5 => '<p> If a husband has contracted marriage with another wife or keeps a mistress, it shall be considered to be just ground for his wife's refusal to live with him:',
	(int) 6 => '<p> Provided, further that no warrant shall be issued for the recovery of any amount due under this direction unless application be made to the Court to levy such amount within a period of one year from the date on which it became due.',
	(int) 7 => '<p> (4) No wife shall be entitled to receive an allowance from her husband under this section if she is living in adultery, or if, without any sufficient reason she refuses to live with her husband, or if they are living separately by mutual consent.',
	(int) 8 => '<p> (5) On proof that any wife in whose favor an order has been made under this section is living in adultery, or that without sufficient reason she refuses to live with her husband, or that they are living separately by mutual consent, the Magistrate shall cancel the order.',
	(int) 9 => '<p> (6) All evidence under this Chapter shall be taken in the presence of the husband or father, as the case may be, or, when his personal attendance is dispensed with, in the presence of his pleader, and shall be recorded in :he manner prescribed in the case of summons-cases:',
	(int) 10 => '<p> Provided that if the Magistrate is satisfied that he is willfully avoiding service, or willfully neglects to attend the Court, the Magistrate may proceed to hear and determine the case ex parte. Any order so made may be set aside for good cause shown, on application made within three months from the date thereof.',
	(int) 11 => '<p> (7) The Court in dealing with applications under this section shall have power to make such order as to costs as may be just.',
	(int) 12 => '<p> (8) Proceedings under this section may be taken against any person in any district where he resides or is, or where he last resided with his wife or, as the case may be, the mother of the illegitimate child.' ',
	(int) 13 => '<p>It is obvious that it confers power to order maintenance, on District Magistrates, Presidency Magistrates, Sub-Divisional Magistrates and Magistrates of the 1st Class: Courts which are indisputably criminal Courts and nto civil Courts. Sub-section (6) provides that all evidence under this Chapter has to be taken in the presence of the husband or father, as the case may be, or when his personal attendance is dispensed with, in the presence of his pleader and it is to be recorded in the manner prescribed in the case of summons-cases. This is a further indication that the proceedings are criminal proceedings and nto civil proceedings. The argument that there is no penalty imposed by this section and the proceedings thereforee, cannto be described as 'criminal' is also unacceptable because according to Section 488(3), which provides for enforcement of orders, in certain circumstances, the person in default can be imprisoned for a term which may extend to one month or until payment, if sooner made, though I should nto be understood to hold this consideration to be conclusive on the point either way. It is obvious that the proceedings envisaged by Chapter xxxvi of the Code cannto be considered to be purely civil proceedings, though the person in default, against whom maintenance order is sought, may nto be an accused person whose examination without oath is mandatory as prescribed by Section 342 of the Code and he may be entitled to appear as a witness as well. I am aware of some conflict of judicial opinion in some old cases where on the ground that the procedure of trying maintenance applications being that of a summons case, failure to examine the person proceeded against under Section 342 of the Code, was held to vitiate the proceedings, but that conflict was set at rest by later decisions in which this section was held inapplicable to proceedings under S. 488. However, consistently all the Courts dealing with that question had assumed that the proceedings were criminal proceedings governed by the Code of Criminal Procedure, both in regard to the trial and the power of revision of the Court of the Sessions Judge and of the High Court.',
	(int) 14 => '<p>2. Chapter 7-A of Vol. Iii of Rules and Orders of the Punjab High Court dealing with the maintenance cases also recites that proceedings under Section 488 of the Code of Criminal Procedure are of a criminal character and the provisions contained therein must, thereforee, be strictly followed. Keeping in view the scheme of Chapter xxxvi of the Code of Criminal Procedure and also the scheme of Articles 133 and 134 of the Constitution, I have little hesitation in holding that proceedings under Section 488, Cr. P. C., do fall within the contemplation of criminal proceedings within the meaning of Article 134. The expression 'criminal proceedings' in this Article, seems to me to be wide enough to include maintenance proceedings adjudicated upon by Magistrates initiated under Chapter xxxvI. Such maintenance proceedings are, in my view, criminal proceedings, designed by way of summary process to provide to deserted wives and neglected children, adjudication of their civil right of maintenance up to al limited amount, enforceable through criminal Courts, to avoid the notorious delays of civil proceedings, which may still be utilised for fuller relief under the general law in the ordinary civil Courts.',
	(int) 15 => '<p>3. And then, what directly concerns this Court is the question of the nature of the proceedings on revision in this Court. These proceedings seem to me to be clearly criminal proceedings and I find no logical and rational basis for holding them to be civil proceedings so as to exclude the applicability of Article 134 of the Constitution. Nto only are they registered in this Court as criminal revisions but they are also presented in this Court under the Cr. P. C. and nto under the Civil P. C. The difference between the relative scope of a civil revision and of a criminal revision is well known and revision against an order under Section 488, Cr. P. C. has never been held to my knowledge to be a civil revision so as to exclude the applicability of Art. 134(1)(c) of the Constitution. The preliminary objection is, thereforee, nto easy to sustain.',
	(int) 16 => '<p>4. Coming now to the merits, the learned counsel for the petitioner has very strongly argued that according to Section 488 of the Code, a separate order should have been made granting maintenance to the children. In my opinion, the question which concerns this Court in this present proceedings is nto so much as to what should have been done by the Magistrate while dealing with Section 488, Cr. P. C., but whether there is any such infirmity in the order of this Court as would justify a certificate of fitness within the contemplation of Article 134(1)(c) of the Constitution. It is nto argued, and it cannto be argued, that clause (a) or clause (b) of Article 134(1) covers this case. Clause (c) of this sub-article postulates a case in which a difficult question involving an unsettled principle requires to be finally determined by the Supreme Court. That does nto seem to be the case before me, and indeed no attempt has been made to show that there is any question of principle involved in the impugned order which requires authoritative decision by the Supreme Court. But this apart, the grant of maintenance in this case is a tentative order and it is always open to the authorities to ask for re-consideration and re-determination on account of change of circumstances. The children in these proceedings may, if they are so advised, even now apply to a competent Court under Section 488 for maintenance and if they make out a good claim to the satisfaction of the Court, I have nto the least doubt that suitable orders would be made in accordance with law. The revision on their behalf was held to be barred by time and this Court did nto consider it proper to exercise its suo motu power of revision in this regard. There is no decision on the merits against them by this Court and it has nto been shown that the impugned decision is based on any wrong principle of law which requires further examination by the Supreme Court.',
	(int) 17 => '<p>5. For the foregoing reasons, this application fails and is dismissed.',
	(int) 18 => '<p>6. Application dismissed.<p>',
	(int) 19 => '<p>'
)
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1. In this application for a certificate of fitness for appeal to the Supreme Court from an order made on revision by this Court in proceedings under Section 488, Cr. P. C, a preliminary objection has been raised that Article 134(1)(c) of the Constitution is inapplicable because proceedings under Section 488 are civil proceedings and nto criminal proceedings. Reliance in support of this preliminary objection has been placed on a decision of the Supreme Court in Nand Lal Misra v. K.L. Misra, : 1960CriLJ1246 . Emphasis has been laid on the observations In this Judgment that Chapter xxxvi of the Code of Criminal Procedure is a self-contained one and the relief given under it is essentially of a civil nature. From this sentence, it is sought to be argued that the proceedings under section 488 are civil proceedings and nto criminal proceedings. Reliance has also been placed on a still more recent Judgment of the Supreme Court in Narayan Row v. Ishwar Lal, : [1965]57ITR149(SC) , in which while dealing with an appeal from an order made by the Bombay High Court under Article 226 of the Constitution, in a matter pertaining to recovery of income-tax, it was observed that the proceedings were civil proceedings within the meaning of Article 133(1)(c) of the Constitution. Reference has next been made to a Full Bench decision of the Punjab High Court in Kapur Singh v. Union of India, where also the question about the nature of proceedings under Articles 133 and 226 of the Constitution came up for discussion. In my opinion, none of these decisions throw helpful light on the question which the preliminary objection poses. Section 488 reads as under:

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	'title_for_layout' => 'Harbhajan Kaur Vs Sant Singh - Citation 681173 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '681173',
			'acts' => '<a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 133, 134, 134(1) and 226; <a href="/act/133280/code-of-criminal-procedure-1898-complete-act">Code of Criminal Procedure (CrPC) , 1898</a> - Sections 342, 488, 488(3) and 488(6)',
			'appealno' => 'Criminal Misc. (SCA) No. 855 of 1968',
			'appellant' => 'Harbhajan Kaur',
			'authreffered' => '',
			'casename' => 'Harbhajan Kaur Vs. Sant Singh',
			'casenote' => ' (i) 
Criminal Procedure Code (V of 1898)- Section 488--Proceedings under--nature of--are criminal proceedings and nto Civil proceedings.; The proceedings envisaged by  Chapter xxxvI of the Code cannto be considered 
purely civil proceedings, though the person in default, against whom maintenance order is sought, may nto be an accused person, whose examination without oath is mandatory as prescribed by section 342 of the Code and he may be entitled to appear as a witness as 
well.; Chapter 7-A of Vol. III of Rules and Orders of the Punjab High Court dealing with the maintenance cases also recites that proceedings under section 488 of the Code of Criminal Procedure are of criminal character and the provisions contained therein must, thereforee, be strictly followed.; (ii) Constitution of India - Article 134--Proceedings under Section 488 within the contemplation of--expression--'Criminal proceedings'--scope of.;  That the proceedings under Section 488 Cr. P.C. do fall within the contemplation of criminal proceedings within the meaning of Article 134. 
The expression 'Criminal Proceedings' in this Article is wide enough to include maintenance proceedings adjucated upon by Magistrate initiated under Chapter xxxvI. Such maintenance proceedings are criminal proceedings designed by way of summary process to provide to deserted wives and neglected children adjudication of their civil right of maintenance up to a limited amount enforceable through criminal courts, to avoid the notorious delays of civil proceedings, which may still be utilised for fuller relief under the general law 
in the ordinary civil courts. - Section 13: [Altamas Kabir & Cyriac Joseph,JJ] Custody of child - Welfare of child vis--vis comity of Courts - The minor girl child of 3 1/2 years was brought to India by her mother. The minor girl was a citizen of U.K. being born in U.K. her parents had set up their matrimonial home in U.K. and had acquired status of permanent residents of U.K. The child with her mother was supposed to return to U.K. but the mother cancelled her tickets and remained behind in India. The husband thereupon started procededings before the High Court of Justice, Family Division. U.K. praying for an order that the minor child be made a ward of the Court and for a direction upon the wife to return the minor child to the jurisdiction of the said Court. A further direction was given for the passport and other international travel documents of the minor child to be handed over to the Solicitors of the husband. A petition seeking protection of minor child was thereupon filed by father of the husband before Delhi High Court. A direction for handing over custody of child to father of husband was also sought. The High Court considering fact that the U.K. court was already in seisin of  matter and had passed an interim order and by relying on principle of comity of Nations and Comity of Judgments of the courts of two different countries in deciding the matter directed the wife to take the child of her own to U.K.or hand it over to father of husband to be taken to U.K. as measure of interim custody and that it would be for the U.K. Court to decide the question of custody  -  Order was challenged by wife -  Held, the order of High Court was not liable to be interfered with. Although, on first impression, it would appear that the interests of the minor child would best be served if she is allowed to remain with the wife, the order of U.K. court cannot be lost sight of., The order of U.K. Court except for insisiting that the minor be returned to its jurisdiction, the English Court did not intend to separate the child from the mother until a final decision was taken with regard to the custody of the child. The ultimate decision in that regard has to be left to the English Court having regard to the nationality of the child and the fact that both the parents had worked for gain in the U.K. and had also acquired permanent resident status in the U.K. English Court has not directed that the custody of the child should be handed over to  the father but that the child should be returned to the jurisdiction of the Courts in the U.K. which would then proceed to determine as to who would be best suited to have the custody of the child. The High Court has taken into consideration both the questions relating to the Comity of Courts as well as the interest of the minor child, which, no doubt, is one of the most important considerations in matters relating to custody of a minor child.  -  Provided that, if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if ho is satisfied that there is just ground for so doing. Provided that if the Magistrate is satisfied that he is willfully avoiding service, or willfully neglects to attend the Court, the Magistrate may proceed to hear and determine the case ex parte. Any order so made may be set aside for good cause shown, on application made within three months from the date thereof. It is obvious that the proceedings envisaged by Chapter xxxvi of the Code cannto be considered to be purely civil proceedings, though the person in default, against whom maintenance order is sought, may nto be an accused person whose examination without oath is mandatory as prescribed by Section 342 of the Code and he may be entitled to appear as a witness as well. I am aware of some conflict of judicial opinion in some old cases where on the ground that the procedure of trying maintenance applications being that of a summons case, failure to examine the person proceeded against under Section 342 of the Code, was held to vitiate the proceedings, but that conflict was set at rest by later decisions in which this section was held inapplicable to proceedings under S. These proceedings seem to me to be clearly criminal proceedings and I find no logical and rational basis for holding them to be civil proceedings so as to exclude the applicability of Article 134 of the Constitution. The difference between the relative scope of a civil revision and of a criminal revision is well known and revision against an order under Section 488, Cr. The children in these proceedings may, if they are so advised, even now apply to a competent Court under Section 488 for maintenance and if they make out a good claim to the satisfaction of the Court, I have nto the least doubt that suitable orders would be made in accordance with law.',
			'caseanalysis' => null,
			'casesref' => 'Kapur Singh v. Union of India;',
			'citingcases' => '',
			'counselplain' => ' O.P. Sharma, Adv',
			'counseldef' => ' Madan Bhatia, Adv.',
			'court' => 'Delhi',
			'court_type' => 'HC',
			'decidedon' => '1968-12-17',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' I.D. Dua, C.J.',
			'judgement' => '<p style="text-align: justify;">1. In this application for a certificate of fitness for appeal to the Supreme Court from an order made on revision by this Court in proceedings under Section 488, Cr. P. C, a preliminary objection has been raised that Article 134(1)(c) of the Constitution is inapplicable because proceedings under Section 488 are civil proceedings and nto criminal proceedings. Reliance in support of this preliminary objection has been placed on a decision of the Supreme Court in Nand Lal Misra v. K.L. Misra, : 1960CriLJ1246 . Emphasis has been laid on the observations In this Judgment that Chapter xxxvi of the Code of Criminal Procedure is a self-contained one and the relief given under it is essentially of a civil nature. From this sentence, it is sought to be argued that the proceedings under section 488 are civil proceedings and nto criminal proceedings. Reliance has also been placed on a still more recent Judgment of the Supreme Court in Narayan Row v. Ishwar Lal, : [1965]57ITR149(SC) , in which while dealing with an appeal from an order made by the Bombay High Court under Article 226 of the Constitution, in a matter pertaining to recovery of income-tax, it was observed that the proceedings were civil proceedings within the meaning of Article 133(1)(c) of the Constitution. Reference has next been made to a Full Bench decision of the Punjab High Court in Kapur Singh v. Union of India, where also the question about the nature of proceedings under Articles 133 and 226 of the Constitution came up for discussion. In my opinion, none of these decisions throw helpful light on the question which the preliminary objection poses. Section 488 reads as under:</p><p style="text-align: justify;">'488. Order for maintenance of wives and children.--(1) If any person having sufficient means neglects or refuses to maintain his wife or his legitimate or illegitimate child unable to maintain itself, the District Magistrate, a Presidency Magistrate, a Sub-Divisional Magistrate or 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, at such monthly rate, nto exceeding five hundred rupees in the whole, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate from time to time directs.</p><p style="text-align: justify;"> (2) Such allowance shall be payable from the date of the order, or if so ordered from the date of the application for maintenance.</p><p style="text-align: justify;"> (3) If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in manner hereinbefore provided for levying fines, and may sentence such person, for the whole or any part of each month's allowance remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made:</p><p style="text-align: justify;"> Provided that, if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if ho is satisfied that there is just ground for so doing.</p><p style="text-align: justify;"> If a husband has contracted marriage with another wife or keeps a mistress, it shall be considered to be just ground for his wife's refusal to live with him:</p><p style="text-align: justify;"> Provided, further that no warrant shall be issued for the recovery of any amount due under this direction unless application be made to the Court to levy such amount within a period of one year from the date on which it became due.</p><p style="text-align: justify;"> (4) No wife shall be entitled to receive an allowance from her husband under this section if she is living in adultery, or if, without any sufficient reason she refuses to live with her husband, or if they are living separately by mutual consent.</p><p style="text-align: justify;"> (5) On proof that any wife in whose favor an order has been made under this section is living in adultery, or that without sufficient reason she refuses to live with her husband, or that they are living separately by mutual consent, the Magistrate shall cancel the order.</p><p style="text-align: justify;"> (6) All evidence under this Chapter shall be taken in the presence of the husband or father, as the case may be, or, when his personal attendance is dispensed with, in the presence of his pleader, and shall be recorded in :he manner prescribed in the case of summons-cases:</p><p style="text-align: justify;"> Provided that if the Magistrate is satisfied that he is willfully avoiding service, or willfully neglects to attend the Court, the Magistrate may proceed to hear and determine the case ex parte. Any order so made may be set aside for good cause shown, on application made within three months from the date thereof.</p><p style="text-align: justify;"> (7) The Court in dealing with applications under this section shall have power to make such order as to costs as may be just.</p><p style="text-align: justify;"> (8) Proceedings under this section may be taken against any person in any district where he resides or is, or where he last resided with his wife or, as the case may be, the mother of the illegitimate child.' </p><p style="text-align: justify;">It is obvious that it confers power to order maintenance, on District Magistrates, Presidency Magistrates, Sub-Divisional Magistrates and Magistrates of the 1st Class: Courts which are indisputably criminal Courts and nto civil Courts. Sub-section (6) provides that all evidence under this Chapter has to be taken in the presence of the husband or father, as the case may be, or when his personal attendance is dispensed with, in the presence of his pleader and it is to be recorded in the manner prescribed in the case of summons-cases. This is a further indication that the proceedings are criminal proceedings and nto civil proceedings. The argument that there is no penalty imposed by this section and the proceedings thereforee, cannto be described as 'criminal' is also unacceptable because according to Section 488(3), which provides for enforcement of orders, in certain circumstances, the person in default can be imprisoned for a term which may extend to one month or until payment, if sooner made, though I should nto be understood to hold this consideration to be conclusive on the point either way. It is obvious that the proceedings envisaged by Chapter xxxvi of the Code cannto be considered to be purely civil proceedings, though the person in default, against whom maintenance order is sought, may nto be an accused person whose examination without oath is mandatory as prescribed by Section 342 of the Code and he may be entitled to appear as a witness as well. I am aware of some conflict of judicial opinion in some old cases where on the ground that the procedure of trying maintenance applications being that of a summons case, failure to examine the person proceeded against under Section 342 of the Code, was held to vitiate the proceedings, but that conflict was set at rest by later decisions in which this section was held inapplicable to proceedings under S. 488. However, consistently all the Courts dealing with that question had assumed that the proceedings were criminal proceedings governed by the Code of Criminal Procedure, both in regard to the trial and the power of revision of the Court of the Sessions Judge and of the High Court.</p><p style="text-align: justify;">2. Chapter 7-A of Vol. Iii of Rules and Orders of the Punjab High Court dealing with the maintenance cases also recites that proceedings under Section 488 of the Code of Criminal Procedure are of a criminal character and the provisions contained therein must, thereforee, be strictly followed. Keeping in view the scheme of Chapter xxxvi of the Code of Criminal Procedure and also the scheme of Articles 133 and 134 of the Constitution, I have little hesitation in holding that proceedings under Section 488, Cr. P. C., do fall within the contemplation of criminal proceedings within the meaning of Article 134. The expression 'criminal proceedings' in this Article, seems to me to be wide enough to include maintenance proceedings adjudicated upon by Magistrates initiated under Chapter xxxvI. Such maintenance proceedings are, in my view, criminal proceedings, designed by way of summary process to provide to deserted wives and neglected children, adjudication of their civil right of maintenance up to al limited amount, enforceable through criminal Courts, to avoid the notorious delays of civil proceedings, which may still be utilised for fuller relief under the general law in the ordinary civil Courts.</p><p style="text-align: justify;">3. And then, what directly concerns this Court is the question of the nature of the proceedings on revision in this Court. These proceedings seem to me to be clearly criminal proceedings and I find no logical and rational basis for holding them to be civil proceedings so as to exclude the applicability of Article 134 of the Constitution. Nto only are they registered in this Court as criminal revisions but they are also presented in this Court under the Cr. P. C. and nto under the Civil P. C. The difference between the relative scope of a civil revision and of a criminal revision is well known and revision against an order under Section 488, Cr. P. C. has never been held to my knowledge to be a civil revision so as to exclude the applicability of Art. 134(1)(c) of the Constitution. The preliminary objection is, thereforee, nto easy to sustain.</p><p style="text-align: justify;">4. Coming now to the merits, the learned counsel for the petitioner has very strongly argued that according to Section 488 of the Code, a separate order should have been made granting maintenance to the children. In my opinion, the question which concerns this Court in this present proceedings is nto so much as to what should have been done by the Magistrate while dealing with Section 488, Cr. P. C., but whether there is any such infirmity in the order of this Court as would justify a certificate of fitness within the contemplation of Article 134(1)(c) of the Constitution. It is nto argued, and it cannto be argued, that clause (a) or clause (b) of Article 134(1) covers this case. Clause (c) of this sub-article postulates a case in which a difficult question involving an unsettled principle requires to be finally determined by the Supreme Court. That does nto seem to be the case before me, and indeed no attempt has been made to show that there is any question of principle involved in the impugned order which requires authoritative decision by the Supreme Court. But this apart, the grant of maintenance in this case is a tentative order and it is always open to the authorities to ask for re-consideration and re-determination on account of change of circumstances. The children in these proceedings may, if they are so advised, even now apply to a competent Court under Section 488 for maintenance and if they make out a good claim to the satisfaction of the Court, I have nto the least doubt that suitable orders would be made in accordance with law. The revision on their behalf was held to be barred by time and this Court did nto consider it proper to exercise its suo motu power of revision in this regard. There is no decision on the merits against them by this Court and it has nto been shown that the impugned decision is based on any wrong principle of law which requires further examination by the Supreme Court.</p><p style="text-align: justify;">5. For the foregoing reasons, this application fails and is dismissed.</p><p style="text-align: justify;">6. Application dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => 'AIR1969Delhi298; 1969CriLJ1243; ILR1968Delhi545',
			'ratiodecidendi' => '',
			'respondent' => 'Sant Singh',
			'sub' => 'Criminal;Constitution',
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			'circuit' => null
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$title_for_layout = 'Harbhajan Kaur Vs Sant Singh - Citation 681173 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '681173',
		'acts' => '<a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 133, 134, 134(1) and 226; <a href="/act/133280/code-of-criminal-procedure-1898-complete-act">Code of Criminal Procedure (CrPC) , 1898</a> - Sections 342, 488, 488(3) and 488(6)',
		'appealno' => 'Criminal Misc. (SCA) No. 855 of 1968',
		'appellant' => 'Harbhajan Kaur',
		'authreffered' => '',
		'casename' => 'Harbhajan Kaur Vs. Sant Singh',
		'casenote' => ' (i) 
Criminal Procedure Code (V of 1898)- Section 488--Proceedings under--nature of--are criminal proceedings and nto Civil proceedings.; The proceedings envisaged by  Chapter xxxvI of the Code cannto be considered 
purely civil proceedings, though the person in default, against whom maintenance order is sought, may nto be an accused person, whose examination without oath is mandatory as prescribed by section 342 of the Code and he may be entitled to appear as a witness as 
well.; Chapter 7-A of Vol. III of Rules and Orders of the Punjab High Court dealing with the maintenance cases also recites that proceedings under section 488 of the Code of Criminal Procedure are of criminal character and the provisions contained therein must, thereforee, be strictly followed.; (ii) Constitution of India - Article 134--Proceedings under Section 488 within the contemplation of--expression--'Criminal proceedings'--scope of.;  That the proceedings under Section 488 Cr. P.C. do fall within the contemplation of criminal proceedings within the meaning of Article 134. 
The expression 'Criminal Proceedings' in this Article is wide enough to include maintenance proceedings adjucated upon by Magistrate initiated under Chapter xxxvI. Such maintenance proceedings are criminal proceedings designed by way of summary process to provide to deserted wives and neglected children adjudication of their civil right of maintenance up to a limited amount enforceable through criminal courts, to avoid the notorious delays of civil proceedings, which may still be utilised for fuller relief under the general law 
in the ordinary civil courts. - Section 13: [Altamas Kabir & Cyriac Joseph,JJ] Custody of child - Welfare of child vis--vis comity of Courts - The minor girl child of 3 1/2 years was brought to India by her mother. The minor girl was a citizen of U.K. being born in U.K. her parents had set up their matrimonial home in U.K. and had acquired status of permanent residents of U.K. The child with her mother was supposed to return to U.K. but the mother cancelled her tickets and remained behind in India. The husband thereupon started procededings before the High Court of Justice, Family Division. U.K. praying for an order that the minor child be made a ward of the Court and for a direction upon the wife to return the minor child to the jurisdiction of the said Court. A further direction was given for the passport and other international travel documents of the minor child to be handed over to the Solicitors of the husband. A petition seeking protection of minor child was thereupon filed by father of the husband before Delhi High Court. A direction for handing over custody of child to father of husband was also sought. The High Court considering fact that the U.K. court was already in seisin of  matter and had passed an interim order and by relying on principle of comity of Nations and Comity of Judgments of the courts of two different countries in deciding the matter directed the wife to take the child of her own to U.K.or hand it over to father of husband to be taken to U.K. as measure of interim custody and that it would be for the U.K. Court to decide the question of custody  -  Order was challenged by wife -  Held, the order of High Court was not liable to be interfered with. Although, on first impression, it would appear that the interests of the minor child would best be served if she is allowed to remain with the wife, the order of U.K. court cannot be lost sight of., The order of U.K. Court except for insisiting that the minor be returned to its jurisdiction, the English Court did not intend to separate the child from the mother until a final decision was taken with regard to the custody of the child. The ultimate decision in that regard has to be left to the English Court having regard to the nationality of the child and the fact that both the parents had worked for gain in the U.K. and had also acquired permanent resident status in the U.K. English Court has not directed that the custody of the child should be handed over to  the father but that the child should be returned to the jurisdiction of the Courts in the U.K. which would then proceed to determine as to who would be best suited to have the custody of the child. The High Court has taken into consideration both the questions relating to the Comity of Courts as well as the interest of the minor child, which, no doubt, is one of the most important considerations in matters relating to custody of a minor child.  -  Provided that, if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if ho is satisfied that there is just ground for so doing. Provided that if the Magistrate is satisfied that he is willfully avoiding service, or willfully neglects to attend the Court, the Magistrate may proceed to hear and determine the case ex parte. Any order so made may be set aside for good cause shown, on application made within three months from the date thereof. It is obvious that the proceedings envisaged by Chapter xxxvi of the Code cannto be considered to be purely civil proceedings, though the person in default, against whom maintenance order is sought, may nto be an accused person whose examination without oath is mandatory as prescribed by Section 342 of the Code and he may be entitled to appear as a witness as well. I am aware of some conflict of judicial opinion in some old cases where on the ground that the procedure of trying maintenance applications being that of a summons case, failure to examine the person proceeded against under Section 342 of the Code, was held to vitiate the proceedings, but that conflict was set at rest by later decisions in which this section was held inapplicable to proceedings under S. These proceedings seem to me to be clearly criminal proceedings and I find no logical and rational basis for holding them to be civil proceedings so as to exclude the applicability of Article 134 of the Constitution. The difference between the relative scope of a civil revision and of a criminal revision is well known and revision against an order under Section 488, Cr. The children in these proceedings may, if they are so advised, even now apply to a competent Court under Section 488 for maintenance and if they make out a good claim to the satisfaction of the Court, I have nto the least doubt that suitable orders would be made in accordance with law.',
		'caseanalysis' => null,
		'casesref' => 'Kapur Singh v. Union of India;',
		'citingcases' => '',
		'counselplain' => ' O.P. Sharma, Adv',
		'counseldef' => ' Madan Bhatia, Adv.',
		'court' => 'Delhi',
		'court_type' => 'HC',
		'decidedon' => '1968-12-17',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' I.D. Dua, C.J.',
		'judgement' => '<p>1. In this application for a certificate of fitness for appeal to the Supreme Court from an order made on revision by this Court in proceedings under Section 488, Cr. P. C, a preliminary objection has been raised that Article 134(1)(c) of the Constitution is inapplicable because proceedings under Section 488 are civil proceedings and nto criminal proceedings. Reliance in support of this preliminary objection has been placed on a decision of the Supreme Court in Nand Lal Misra v. K.L. Misra, : 1960CriLJ1246 . Emphasis has been laid on the observations In this Judgment that Chapter xxxvi of the Code of Criminal Procedure is a self-contained one and the relief given under it is essentially of a civil nature. From this sentence, it is sought to be argued that the proceedings under section 488 are civil proceedings and nto criminal proceedings. Reliance has also been placed on a still more recent Judgment of the Supreme Court in Narayan Row v. Ishwar Lal, : [1965]57ITR149(SC) , in which while dealing with an appeal from an order made by the Bombay High Court under Article 226 of the Constitution, in a matter pertaining to recovery of income-tax, it was observed that the proceedings were civil proceedings within the meaning of Article 133(1)(c) of the Constitution. Reference has next been made to a Full Bench decision of the Punjab High Court in Kapur Singh v. Union of India, where also the question about the nature of proceedings under Articles 133 and 226 of the Constitution came up for discussion. In my opinion, none of these decisions throw helpful light on the question which the preliminary objection poses. Section 488 reads as under:</p><p>'488. Order for maintenance of wives and children.--(1) If any person having sufficient means neglects or refuses to maintain his wife or his legitimate or illegitimate child unable to maintain itself, the District Magistrate, a Presidency Magistrate, a Sub-Divisional Magistrate or 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, at such monthly rate, nto exceeding five hundred rupees in the whole, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate from time to time directs.</p><p> (2) Such allowance shall be payable from the date of the order, or if so ordered from the date of the application for maintenance.</p><p> (3) If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in manner hereinbefore provided for levying fines, and may sentence such person, for the whole or any part of each month's allowance remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made:</p><p> Provided that, if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if ho is satisfied that there is just ground for so doing.</p><p> If a husband has contracted marriage with another wife or keeps a mistress, it shall be considered to be just ground for his wife's refusal to live with him:</p><p> Provided, further that no warrant shall be issued for the recovery of any amount due under this direction unless application be made to the Court to levy such amount within a period of one year from the date on which it became due.</p><p> (4) No wife shall be entitled to receive an allowance from her husband under this section if she is living in adultery, or if, without any sufficient reason she refuses to live with her husband, or if they are living separately by mutual consent.</p><p> (5) On proof that any wife in whose favor an order has been made under this section is living in adultery, or that without sufficient reason she refuses to live with her husband, or that they are living separately by mutual consent, the Magistrate shall cancel the order.</p><p> (6) All evidence under this Chapter shall be taken in the presence of the husband or father, as the case may be, or, when his personal attendance is dispensed with, in the presence of his pleader, and shall be recorded in :he manner prescribed in the case of summons-cases:</p><p> Provided that if the Magistrate is satisfied that he is willfully avoiding service, or willfully neglects to attend the Court, the Magistrate may proceed to hear and determine the case ex parte. Any order so made may be set aside for good cause shown, on application made within three months from the date thereof.</p><p> (7) The Court in dealing with applications under this section shall have power to make such order as to costs as may be just.</p><p> (8) Proceedings under this section may be taken against any person in any district where he resides or is, or where he last resided with his wife or, as the case may be, the mother of the illegitimate child.' </p><p>It is obvious that it confers power to order maintenance, on District Magistrates, Presidency Magistrates, Sub-Divisional Magistrates and Magistrates of the 1st Class: Courts which are indisputably criminal Courts and nto civil Courts. Sub-section (6) provides that all evidence under this Chapter has to be taken in the presence of the husband or father, as the case may be, or when his personal attendance is dispensed with, in the presence of his pleader and it is to be recorded in the manner prescribed in the case of summons-cases. This is a further indication that the proceedings are criminal proceedings and nto civil proceedings. The argument that there is no penalty imposed by this section and the proceedings thereforee, cannto be described as 'criminal' is also unacceptable because according to Section 488(3), which provides for enforcement of orders, in certain circumstances, the person in default can be imprisoned for a term which may extend to one month or until payment, if sooner made, though I should nto be understood to hold this consideration to be conclusive on the point either way. It is obvious that the proceedings envisaged by Chapter xxxvi of the Code cannto be considered to be purely civil proceedings, though the person in default, against whom maintenance order is sought, may nto be an accused person whose examination without oath is mandatory as prescribed by Section 342 of the Code and he may be entitled to appear as a witness as well. I am aware of some conflict of judicial opinion in some old cases where on the ground that the procedure of trying maintenance applications being that of a summons case, failure to examine the person proceeded against under Section 342 of the Code, was held to vitiate the proceedings, but that conflict was set at rest by later decisions in which this section was held inapplicable to proceedings under S. 488. However, consistently all the Courts dealing with that question had assumed that the proceedings were criminal proceedings governed by the Code of Criminal Procedure, both in regard to the trial and the power of revision of the Court of the Sessions Judge and of the High Court.</p><p>2. Chapter 7-A of Vol. Iii of Rules and Orders of the Punjab High Court dealing with the maintenance cases also recites that proceedings under Section 488 of the Code of Criminal Procedure are of a criminal character and the provisions contained therein must, thereforee, be strictly followed. Keeping in view the scheme of Chapter xxxvi of the Code of Criminal Procedure and also the scheme of Articles 133 and 134 of the Constitution, I have little hesitation in holding that proceedings under Section 488, Cr. P. C., do fall within the contemplation of criminal proceedings within the meaning of Article 134. The expression 'criminal proceedings' in this Article, seems to me to be wide enough to include maintenance proceedings adjudicated upon by Magistrates initiated under Chapter xxxvI. Such maintenance proceedings are, in my view, criminal proceedings, designed by way of summary process to provide to deserted wives and neglected children, adjudication of their civil right of maintenance up to al limited amount, enforceable through criminal Courts, to avoid the notorious delays of civil proceedings, which may still be utilised for fuller relief under the general law in the ordinary civil Courts.</p><p>3. And then, what directly concerns this Court is the question of the nature of the proceedings on revision in this Court. These proceedings seem to me to be clearly criminal proceedings and I find no logical and rational basis for holding them to be civil proceedings so as to exclude the applicability of Article 134 of the Constitution. Nto only are they registered in this Court as criminal revisions but they are also presented in this Court under the Cr. P. C. and nto under the Civil P. C. The difference between the relative scope of a civil revision and of a criminal revision is well known and revision against an order under Section 488, Cr. P. C. has never been held to my knowledge to be a civil revision so as to exclude the applicability of Art. 134(1)(c) of the Constitution. The preliminary objection is, thereforee, nto easy to sustain.</p><p>4. Coming now to the merits, the learned counsel for the petitioner has very strongly argued that according to Section 488 of the Code, a separate order should have been made granting maintenance to the children. In my opinion, the question which concerns this Court in this present proceedings is nto so much as to what should have been done by the Magistrate while dealing with Section 488, Cr. P. C., but whether there is any such infirmity in the order of this Court as would justify a certificate of fitness within the contemplation of Article 134(1)(c) of the Constitution. It is nto argued, and it cannto be argued, that clause (a) or clause (b) of Article 134(1) covers this case. Clause (c) of this sub-article postulates a case in which a difficult question involving an unsettled principle requires to be finally determined by the Supreme Court. That does nto seem to be the case before me, and indeed no attempt has been made to show that there is any question of principle involved in the impugned order which requires authoritative decision by the Supreme Court. But this apart, the grant of maintenance in this case is a tentative order and it is always open to the authorities to ask for re-consideration and re-determination on account of change of circumstances. The children in these proceedings may, if they are so advised, even now apply to a competent Court under Section 488 for maintenance and if they make out a good claim to the satisfaction of the Court, I have nto the least doubt that suitable orders would be made in accordance with law. The revision on their behalf was held to be barred by time and this Court did nto consider it proper to exercise its suo motu power of revision in this regard. There is no decision on the merits against them by this Court and it has nto been shown that the impugned decision is based on any wrong principle of law which requires further examination by the Supreme Court.</p><p>5. For the foregoing reasons, this application fails and is dismissed.</p><p>6. Application dismissed.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'AIR1969Delhi298; 1969CriLJ1243; ILR1968Delhi545',
		'ratiodecidendi' => '',
		'respondent' => 'Sant Singh',
		'sub' => 'Criminal;Constitution',
		'link' => null,
		'circuit' => null
	)
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	(int) 0 => '<p>1. In this application for a certificate of fitness for appeal to the Supreme Court from an order made on revision by this Court in proceedings under Section 488, Cr. P. C, a preliminary objection has been raised that Article 134(1)(c) of the Constitution is inapplicable because proceedings under Section 488 are civil proceedings and nto criminal proceedings. Reliance in support of this preliminary objection has been placed on a decision of the Supreme Court in Nand Lal Misra v. K.L. Misra, : 1960CriLJ1246 . Emphasis has been laid on the observations In this Judgment that Chapter xxxvi of the Code of Criminal Procedure is a self-contained one and the relief given under it is essentially of a civil nature. From this sentence, it is sought to be argued that the proceedings under section 488 are civil proceedings and nto criminal proceedings. Reliance has also been placed on a still more recent Judgment of the Supreme Court in Narayan Row v. Ishwar Lal, : [1965]57ITR149(SC) , in which while dealing with an appeal from an order made by the Bombay High Court under Article 226 of the Constitution, in a matter pertaining to recovery of income-tax, it was observed that the proceedings were civil proceedings within the meaning of Article 133(1)(c) of the Constitution. Reference has next been made to a Full Bench decision of the Punjab High Court in Kapur Singh v. Union of India, where also the question about the nature of proceedings under Articles 133 and 226 of the Constitution came up for discussion. In my opinion, none of these decisions throw helpful light on the question which the preliminary objection poses. Section 488 reads as under:',
	(int) 1 => '<p>'488. Order for maintenance of wives and children.--(1) If any person having sufficient means neglects or refuses to maintain his wife or his legitimate or illegitimate child unable to maintain itself, the District Magistrate, a Presidency Magistrate, a Sub-Divisional Magistrate or 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, at such monthly rate, nto exceeding five hundred rupees in the whole, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate from time to time directs.',
	(int) 2 => '<p> (2) Such allowance shall be payable from the date of the order, or if so ordered from the date of the application for maintenance.',
	(int) 3 => '<p> (3) If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in manner hereinbefore provided for levying fines, and may sentence such person, for the whole or any part of each month's allowance remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made:',
	(int) 4 => '<p> Provided that, if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if ho is satisfied that there is just ground for so doing.',
	(int) 5 => '<p> If a husband has contracted marriage with another wife or keeps a mistress, it shall be considered to be just ground for his wife's refusal to live with him:',
	(int) 6 => '<p> Provided, further that no warrant shall be issued for the recovery of any amount due under this direction unless application be made to the Court to levy such amount within a period of one year from the date on which it became due.',
	(int) 7 => '<p> (4) No wife shall be entitled to receive an allowance from her husband under this section if she is living in adultery, or if, without any sufficient reason she refuses to live with her husband, or if they are living separately by mutual consent.',
	(int) 8 => '<p> (5) On proof that any wife in whose favor an order has been made under this section is living in adultery, or that without sufficient reason she refuses to live with her husband, or that they are living separately by mutual consent, the Magistrate shall cancel the order.',
	(int) 9 => '<p> (6) All evidence under this Chapter shall be taken in the presence of the husband or father, as the case may be, or, when his personal attendance is dispensed with, in the presence of his pleader, and shall be recorded in :he manner prescribed in the case of summons-cases:',
	(int) 10 => '<p> Provided that if the Magistrate is satisfied that he is willfully avoiding service, or willfully neglects to attend the Court, the Magistrate may proceed to hear and determine the case ex parte. Any order so made may be set aside for good cause shown, on application made within three months from the date thereof.',
	(int) 11 => '<p> (7) The Court in dealing with applications under this section shall have power to make such order as to costs as may be just.',
	(int) 12 => '<p> (8) Proceedings under this section may be taken against any person in any district where he resides or is, or where he last resided with his wife or, as the case may be, the mother of the illegitimate child.' ',
	(int) 13 => '<p>It is obvious that it confers power to order maintenance, on District Magistrates, Presidency Magistrates, Sub-Divisional Magistrates and Magistrates of the 1st Class: Courts which are indisputably criminal Courts and nto civil Courts. Sub-section (6) provides that all evidence under this Chapter has to be taken in the presence of the husband or father, as the case may be, or when his personal attendance is dispensed with, in the presence of his pleader and it is to be recorded in the manner prescribed in the case of summons-cases. This is a further indication that the proceedings are criminal proceedings and nto civil proceedings. The argument that there is no penalty imposed by this section and the proceedings thereforee, cannto be described as 'criminal' is also unacceptable because according to Section 488(3), which provides for enforcement of orders, in certain circumstances, the person in default can be imprisoned for a term which may extend to one month or until payment, if sooner made, though I should nto be understood to hold this consideration to be conclusive on the point either way. It is obvious that the proceedings envisaged by Chapter xxxvi of the Code cannto be considered to be purely civil proceedings, though the person in default, against whom maintenance order is sought, may nto be an accused person whose examination without oath is mandatory as prescribed by Section 342 of the Code and he may be entitled to appear as a witness as well. I am aware of some conflict of judicial opinion in some old cases where on the ground that the procedure of trying maintenance applications being that of a summons case, failure to examine the person proceeded against under Section 342 of the Code, was held to vitiate the proceedings, but that conflict was set at rest by later decisions in which this section was held inapplicable to proceedings under S. 488. However, consistently all the Courts dealing with that question had assumed that the proceedings were criminal proceedings governed by the Code of Criminal Procedure, both in regard to the trial and the power of revision of the Court of the Sessions Judge and of the High Court.',
	(int) 14 => '<p>2. Chapter 7-A of Vol. Iii of Rules and Orders of the Punjab High Court dealing with the maintenance cases also recites that proceedings under Section 488 of the Code of Criminal Procedure are of a criminal character and the provisions contained therein must, thereforee, be strictly followed. Keeping in view the scheme of Chapter xxxvi of the Code of Criminal Procedure and also the scheme of Articles 133 and 134 of the Constitution, I have little hesitation in holding that proceedings under Section 488, Cr. P. C., do fall within the contemplation of criminal proceedings within the meaning of Article 134. The expression 'criminal proceedings' in this Article, seems to me to be wide enough to include maintenance proceedings adjudicated upon by Magistrates initiated under Chapter xxxvI. Such maintenance proceedings are, in my view, criminal proceedings, designed by way of summary process to provide to deserted wives and neglected children, adjudication of their civil right of maintenance up to al limited amount, enforceable through criminal Courts, to avoid the notorious delays of civil proceedings, which may still be utilised for fuller relief under the general law in the ordinary civil Courts.',
	(int) 15 => '<p>3. And then, what directly concerns this Court is the question of the nature of the proceedings on revision in this Court. These proceedings seem to me to be clearly criminal proceedings and I find no logical and rational basis for holding them to be civil proceedings so as to exclude the applicability of Article 134 of the Constitution. Nto only are they registered in this Court as criminal revisions but they are also presented in this Court under the Cr. P. C. and nto under the Civil P. C. The difference between the relative scope of a civil revision and of a criminal revision is well known and revision against an order under Section 488, Cr. P. C. has never been held to my knowledge to be a civil revision so as to exclude the applicability of Art. 134(1)(c) of the Constitution. The preliminary objection is, thereforee, nto easy to sustain.',
	(int) 16 => '<p>4. Coming now to the merits, the learned counsel for the petitioner has very strongly argued that according to Section 488 of the Code, a separate order should have been made granting maintenance to the children. In my opinion, the question which concerns this Court in this present proceedings is nto so much as to what should have been done by the Magistrate while dealing with Section 488, Cr. P. C., but whether there is any such infirmity in the order of this Court as would justify a certificate of fitness within the contemplation of Article 134(1)(c) of the Constitution. It is nto argued, and it cannto be argued, that clause (a) or clause (b) of Article 134(1) covers this case. Clause (c) of this sub-article postulates a case in which a difficult question involving an unsettled principle requires to be finally determined by the Supreme Court. That does nto seem to be the case before me, and indeed no attempt has been made to show that there is any question of principle involved in the impugned order which requires authoritative decision by the Supreme Court. But this apart, the grant of maintenance in this case is a tentative order and it is always open to the authorities to ask for re-consideration and re-determination on account of change of circumstances. The children in these proceedings may, if they are so advised, even now apply to a competent Court under Section 488 for maintenance and if they make out a good claim to the satisfaction of the Court, I have nto the least doubt that suitable orders would be made in accordance with law. The revision on their behalf was held to be barred by time and this Court did nto consider it proper to exercise its suo motu power of revision in this regard. There is no decision on the merits against them by this Court and it has nto been shown that the impugned decision is based on any wrong principle of law which requires further examination by the Supreme Court.',
	(int) 17 => '<p>5. For the foregoing reasons, this application fails and is dismissed.',
	(int) 18 => '<p>6. Application dismissed.<p>',
	(int) 19 => '<p>'
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'488. Order for maintenance of wives and children.--(1) If any person having sufficient means neglects or refuses to maintain his wife or his legitimate or illegitimate child unable to maintain itself, the District Magistrate, a Presidency Magistrate, a Sub-Divisional Magistrate or 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, at such monthly rate, nto exceeding five hundred rupees in the whole, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate from time to time directs.

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Code Context
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	'title_for_layout' => 'Harbhajan Kaur Vs Sant Singh - Citation 681173 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '681173',
			'acts' => '<a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 133, 134, 134(1) and 226; <a href="/act/133280/code-of-criminal-procedure-1898-complete-act">Code of Criminal Procedure (CrPC) , 1898</a> - Sections 342, 488, 488(3) and 488(6)',
			'appealno' => 'Criminal Misc. (SCA) No. 855 of 1968',
			'appellant' => 'Harbhajan Kaur',
			'authreffered' => '',
			'casename' => 'Harbhajan Kaur Vs. Sant Singh',
			'casenote' => ' (i) 
Criminal Procedure Code (V of 1898)- Section 488--Proceedings under--nature of--are criminal proceedings and nto Civil proceedings.; The proceedings envisaged by  Chapter xxxvI of the Code cannto be considered 
purely civil proceedings, though the person in default, against whom maintenance order is sought, may nto be an accused person, whose examination without oath is mandatory as prescribed by section 342 of the Code and he may be entitled to appear as a witness as 
well.; Chapter 7-A of Vol. III of Rules and Orders of the Punjab High Court dealing with the maintenance cases also recites that proceedings under section 488 of the Code of Criminal Procedure are of criminal character and the provisions contained therein must, thereforee, be strictly followed.; (ii) Constitution of India - Article 134--Proceedings under Section 488 within the contemplation of--expression--'Criminal proceedings'--scope of.;  That the proceedings under Section 488 Cr. P.C. do fall within the contemplation of criminal proceedings within the meaning of Article 134. 
The expression 'Criminal Proceedings' in this Article is wide enough to include maintenance proceedings adjucated upon by Magistrate initiated under Chapter xxxvI. Such maintenance proceedings are criminal proceedings designed by way of summary process to provide to deserted wives and neglected children adjudication of their civil right of maintenance up to a limited amount enforceable through criminal courts, to avoid the notorious delays of civil proceedings, which may still be utilised for fuller relief under the general law 
in the ordinary civil courts. - Section 13: [Altamas Kabir & Cyriac Joseph,JJ] Custody of child - Welfare of child vis--vis comity of Courts - The minor girl child of 3 1/2 years was brought to India by her mother. The minor girl was a citizen of U.K. being born in U.K. her parents had set up their matrimonial home in U.K. and had acquired status of permanent residents of U.K. The child with her mother was supposed to return to U.K. but the mother cancelled her tickets and remained behind in India. The husband thereupon started procededings before the High Court of Justice, Family Division. U.K. praying for an order that the minor child be made a ward of the Court and for a direction upon the wife to return the minor child to the jurisdiction of the said Court. A further direction was given for the passport and other international travel documents of the minor child to be handed over to the Solicitors of the husband. A petition seeking protection of minor child was thereupon filed by father of the husband before Delhi High Court. A direction for handing over custody of child to father of husband was also sought. The High Court considering fact that the U.K. court was already in seisin of  matter and had passed an interim order and by relying on principle of comity of Nations and Comity of Judgments of the courts of two different countries in deciding the matter directed the wife to take the child of her own to U.K.or hand it over to father of husband to be taken to U.K. as measure of interim custody and that it would be for the U.K. Court to decide the question of custody  -  Order was challenged by wife -  Held, the order of High Court was not liable to be interfered with. Although, on first impression, it would appear that the interests of the minor child would best be served if she is allowed to remain with the wife, the order of U.K. court cannot be lost sight of., The order of U.K. Court except for insisiting that the minor be returned to its jurisdiction, the English Court did not intend to separate the child from the mother until a final decision was taken with regard to the custody of the child. The ultimate decision in that regard has to be left to the English Court having regard to the nationality of the child and the fact that both the parents had worked for gain in the U.K. and had also acquired permanent resident status in the U.K. English Court has not directed that the custody of the child should be handed over to  the father but that the child should be returned to the jurisdiction of the Courts in the U.K. which would then proceed to determine as to who would be best suited to have the custody of the child. The High Court has taken into consideration both the questions relating to the Comity of Courts as well as the interest of the minor child, which, no doubt, is one of the most important considerations in matters relating to custody of a minor child.  -  Provided that, if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if ho is satisfied that there is just ground for so doing. Provided that if the Magistrate is satisfied that he is willfully avoiding service, or willfully neglects to attend the Court, the Magistrate may proceed to hear and determine the case ex parte. Any order so made may be set aside for good cause shown, on application made within three months from the date thereof. It is obvious that the proceedings envisaged by Chapter xxxvi of the Code cannto be considered to be purely civil proceedings, though the person in default, against whom maintenance order is sought, may nto be an accused person whose examination without oath is mandatory as prescribed by Section 342 of the Code and he may be entitled to appear as a witness as well. I am aware of some conflict of judicial opinion in some old cases where on the ground that the procedure of trying maintenance applications being that of a summons case, failure to examine the person proceeded against under Section 342 of the Code, was held to vitiate the proceedings, but that conflict was set at rest by later decisions in which this section was held inapplicable to proceedings under S. These proceedings seem to me to be clearly criminal proceedings and I find no logical and rational basis for holding them to be civil proceedings so as to exclude the applicability of Article 134 of the Constitution. The difference between the relative scope of a civil revision and of a criminal revision is well known and revision against an order under Section 488, Cr. The children in these proceedings may, if they are so advised, even now apply to a competent Court under Section 488 for maintenance and if they make out a good claim to the satisfaction of the Court, I have nto the least doubt that suitable orders would be made in accordance with law.',
			'caseanalysis' => null,
			'casesref' => 'Kapur Singh v. Union of India;',
			'citingcases' => '',
			'counselplain' => ' O.P. Sharma, Adv',
			'counseldef' => ' Madan Bhatia, Adv.',
			'court' => 'Delhi',
			'court_type' => 'HC',
			'decidedon' => '1968-12-17',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' I.D. Dua, C.J.',
			'judgement' => '<p style="text-align: justify;">1. In this application for a certificate of fitness for appeal to the Supreme Court from an order made on revision by this Court in proceedings under Section 488, Cr. P. C, a preliminary objection has been raised that Article 134(1)(c) of the Constitution is inapplicable because proceedings under Section 488 are civil proceedings and nto criminal proceedings. Reliance in support of this preliminary objection has been placed on a decision of the Supreme Court in Nand Lal Misra v. K.L. Misra, : 1960CriLJ1246 . Emphasis has been laid on the observations In this Judgment that Chapter xxxvi of the Code of Criminal Procedure is a self-contained one and the relief given under it is essentially of a civil nature. From this sentence, it is sought to be argued that the proceedings under section 488 are civil proceedings and nto criminal proceedings. Reliance has also been placed on a still more recent Judgment of the Supreme Court in Narayan Row v. Ishwar Lal, : [1965]57ITR149(SC) , in which while dealing with an appeal from an order made by the Bombay High Court under Article 226 of the Constitution, in a matter pertaining to recovery of income-tax, it was observed that the proceedings were civil proceedings within the meaning of Article 133(1)(c) of the Constitution. Reference has next been made to a Full Bench decision of the Punjab High Court in Kapur Singh v. Union of India, where also the question about the nature of proceedings under Articles 133 and 226 of the Constitution came up for discussion. In my opinion, none of these decisions throw helpful light on the question which the preliminary objection poses. Section 488 reads as under:</p><p style="text-align: justify;">'488. Order for maintenance of wives and children.--(1) If any person having sufficient means neglects or refuses to maintain his wife or his legitimate or illegitimate child unable to maintain itself, the District Magistrate, a Presidency Magistrate, a Sub-Divisional Magistrate or 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, at such monthly rate, nto exceeding five hundred rupees in the whole, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate from time to time directs.</p><p style="text-align: justify;"> (2) Such allowance shall be payable from the date of the order, or if so ordered from the date of the application for maintenance.</p><p style="text-align: justify;"> (3) If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in manner hereinbefore provided for levying fines, and may sentence such person, for the whole or any part of each month's allowance remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made:</p><p style="text-align: justify;"> Provided that, if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if ho is satisfied that there is just ground for so doing.</p><p style="text-align: justify;"> If a husband has contracted marriage with another wife or keeps a mistress, it shall be considered to be just ground for his wife's refusal to live with him:</p><p style="text-align: justify;"> Provided, further that no warrant shall be issued for the recovery of any amount due under this direction unless application be made to the Court to levy such amount within a period of one year from the date on which it became due.</p><p style="text-align: justify;"> (4) No wife shall be entitled to receive an allowance from her husband under this section if she is living in adultery, or if, without any sufficient reason she refuses to live with her husband, or if they are living separately by mutual consent.</p><p style="text-align: justify;"> (5) On proof that any wife in whose favor an order has been made under this section is living in adultery, or that without sufficient reason she refuses to live with her husband, or that they are living separately by mutual consent, the Magistrate shall cancel the order.</p><p style="text-align: justify;"> (6) All evidence under this Chapter shall be taken in the presence of the husband or father, as the case may be, or, when his personal attendance is dispensed with, in the presence of his pleader, and shall be recorded in :he manner prescribed in the case of summons-cases:</p><p style="text-align: justify;"> Provided that if the Magistrate is satisfied that he is willfully avoiding service, or willfully neglects to attend the Court, the Magistrate may proceed to hear and determine the case ex parte. Any order so made may be set aside for good cause shown, on application made within three months from the date thereof.</p><p style="text-align: justify;"> (7) The Court in dealing with applications under this section shall have power to make such order as to costs as may be just.</p><p style="text-align: justify;"> (8) Proceedings under this section may be taken against any person in any district where he resides or is, or where he last resided with his wife or, as the case may be, the mother of the illegitimate child.' </p><p style="text-align: justify;">It is obvious that it confers power to order maintenance, on District Magistrates, Presidency Magistrates, Sub-Divisional Magistrates and Magistrates of the 1st Class: Courts which are indisputably criminal Courts and nto civil Courts. Sub-section (6) provides that all evidence under this Chapter has to be taken in the presence of the husband or father, as the case may be, or when his personal attendance is dispensed with, in the presence of his pleader and it is to be recorded in the manner prescribed in the case of summons-cases. This is a further indication that the proceedings are criminal proceedings and nto civil proceedings. The argument that there is no penalty imposed by this section and the proceedings thereforee, cannto be described as 'criminal' is also unacceptable because according to Section 488(3), which provides for enforcement of orders, in certain circumstances, the person in default can be imprisoned for a term which may extend to one month or until payment, if sooner made, though I should nto be understood to hold this consideration to be conclusive on the point either way. It is obvious that the proceedings envisaged by Chapter xxxvi of the Code cannto be considered to be purely civil proceedings, though the person in default, against whom maintenance order is sought, may nto be an accused person whose examination without oath is mandatory as prescribed by Section 342 of the Code and he may be entitled to appear as a witness as well. I am aware of some conflict of judicial opinion in some old cases where on the ground that the procedure of trying maintenance applications being that of a summons case, failure to examine the person proceeded against under Section 342 of the Code, was held to vitiate the proceedings, but that conflict was set at rest by later decisions in which this section was held inapplicable to proceedings under S. 488. However, consistently all the Courts dealing with that question had assumed that the proceedings were criminal proceedings governed by the Code of Criminal Procedure, both in regard to the trial and the power of revision of the Court of the Sessions Judge and of the High Court.</p><p style="text-align: justify;">2. Chapter 7-A of Vol. Iii of Rules and Orders of the Punjab High Court dealing with the maintenance cases also recites that proceedings under Section 488 of the Code of Criminal Procedure are of a criminal character and the provisions contained therein must, thereforee, be strictly followed. Keeping in view the scheme of Chapter xxxvi of the Code of Criminal Procedure and also the scheme of Articles 133 and 134 of the Constitution, I have little hesitation in holding that proceedings under Section 488, Cr. P. C., do fall within the contemplation of criminal proceedings within the meaning of Article 134. The expression 'criminal proceedings' in this Article, seems to me to be wide enough to include maintenance proceedings adjudicated upon by Magistrates initiated under Chapter xxxvI. Such maintenance proceedings are, in my view, criminal proceedings, designed by way of summary process to provide to deserted wives and neglected children, adjudication of their civil right of maintenance up to al limited amount, enforceable through criminal Courts, to avoid the notorious delays of civil proceedings, which may still be utilised for fuller relief under the general law in the ordinary civil Courts.</p><p style="text-align: justify;">3. And then, what directly concerns this Court is the question of the nature of the proceedings on revision in this Court. These proceedings seem to me to be clearly criminal proceedings and I find no logical and rational basis for holding them to be civil proceedings so as to exclude the applicability of Article 134 of the Constitution. Nto only are they registered in this Court as criminal revisions but they are also presented in this Court under the Cr. P. C. and nto under the Civil P. C. The difference between the relative scope of a civil revision and of a criminal revision is well known and revision against an order under Section 488, Cr. P. C. has never been held to my knowledge to be a civil revision so as to exclude the applicability of Art. 134(1)(c) of the Constitution. The preliminary objection is, thereforee, nto easy to sustain.</p><p style="text-align: justify;">4. Coming now to the merits, the learned counsel for the petitioner has very strongly argued that according to Section 488 of the Code, a separate order should have been made granting maintenance to the children. In my opinion, the question which concerns this Court in this present proceedings is nto so much as to what should have been done by the Magistrate while dealing with Section 488, Cr. P. C., but whether there is any such infirmity in the order of this Court as would justify a certificate of fitness within the contemplation of Article 134(1)(c) of the Constitution. It is nto argued, and it cannto be argued, that clause (a) or clause (b) of Article 134(1) covers this case. Clause (c) of this sub-article postulates a case in which a difficult question involving an unsettled principle requires to be finally determined by the Supreme Court. That does nto seem to be the case before me, and indeed no attempt has been made to show that there is any question of principle involved in the impugned order which requires authoritative decision by the Supreme Court. But this apart, the grant of maintenance in this case is a tentative order and it is always open to the authorities to ask for re-consideration and re-determination on account of change of circumstances. The children in these proceedings may, if they are so advised, even now apply to a competent Court under Section 488 for maintenance and if they make out a good claim to the satisfaction of the Court, I have nto the least doubt that suitable orders would be made in accordance with law. The revision on their behalf was held to be barred by time and this Court did nto consider it proper to exercise its suo motu power of revision in this regard. There is no decision on the merits against them by this Court and it has nto been shown that the impugned decision is based on any wrong principle of law which requires further examination by the Supreme Court.</p><p style="text-align: justify;">5. For the foregoing reasons, this application fails and is dismissed.</p><p style="text-align: justify;">6. Application dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => 'AIR1969Delhi298; 1969CriLJ1243; ILR1968Delhi545',
			'ratiodecidendi' => '',
			'respondent' => 'Sant Singh',
			'sub' => 'Criminal;Constitution',
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			'circuit' => null
		)
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$title_for_layout = 'Harbhajan Kaur Vs Sant Singh - Citation 681173 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '681173',
		'acts' => '<a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 133, 134, 134(1) and 226; <a href="/act/133280/code-of-criminal-procedure-1898-complete-act">Code of Criminal Procedure (CrPC) , 1898</a> - Sections 342, 488, 488(3) and 488(6)',
		'appealno' => 'Criminal Misc. (SCA) No. 855 of 1968',
		'appellant' => 'Harbhajan Kaur',
		'authreffered' => '',
		'casename' => 'Harbhajan Kaur Vs. Sant Singh',
		'casenote' => ' (i) 
Criminal Procedure Code (V of 1898)- Section 488--Proceedings under--nature of--are criminal proceedings and nto Civil proceedings.; The proceedings envisaged by  Chapter xxxvI of the Code cannto be considered 
purely civil proceedings, though the person in default, against whom maintenance order is sought, may nto be an accused person, whose examination without oath is mandatory as prescribed by section 342 of the Code and he may be entitled to appear as a witness as 
well.; Chapter 7-A of Vol. III of Rules and Orders of the Punjab High Court dealing with the maintenance cases also recites that proceedings under section 488 of the Code of Criminal Procedure are of criminal character and the provisions contained therein must, thereforee, be strictly followed.; (ii) Constitution of India - Article 134--Proceedings under Section 488 within the contemplation of--expression--'Criminal proceedings'--scope of.;  That the proceedings under Section 488 Cr. P.C. do fall within the contemplation of criminal proceedings within the meaning of Article 134. 
The expression 'Criminal Proceedings' in this Article is wide enough to include maintenance proceedings adjucated upon by Magistrate initiated under Chapter xxxvI. Such maintenance proceedings are criminal proceedings designed by way of summary process to provide to deserted wives and neglected children adjudication of their civil right of maintenance up to a limited amount enforceable through criminal courts, to avoid the notorious delays of civil proceedings, which may still be utilised for fuller relief under the general law 
in the ordinary civil courts. - Section 13: [Altamas Kabir & Cyriac Joseph,JJ] Custody of child - Welfare of child vis--vis comity of Courts - The minor girl child of 3 1/2 years was brought to India by her mother. The minor girl was a citizen of U.K. being born in U.K. her parents had set up their matrimonial home in U.K. and had acquired status of permanent residents of U.K. The child with her mother was supposed to return to U.K. but the mother cancelled her tickets and remained behind in India. The husband thereupon started procededings before the High Court of Justice, Family Division. U.K. praying for an order that the minor child be made a ward of the Court and for a direction upon the wife to return the minor child to the jurisdiction of the said Court. A further direction was given for the passport and other international travel documents of the minor child to be handed over to the Solicitors of the husband. A petition seeking protection of minor child was thereupon filed by father of the husband before Delhi High Court. A direction for handing over custody of child to father of husband was also sought. The High Court considering fact that the U.K. court was already in seisin of  matter and had passed an interim order and by relying on principle of comity of Nations and Comity of Judgments of the courts of two different countries in deciding the matter directed the wife to take the child of her own to U.K.or hand it over to father of husband to be taken to U.K. as measure of interim custody and that it would be for the U.K. Court to decide the question of custody  -  Order was challenged by wife -  Held, the order of High Court was not liable to be interfered with. Although, on first impression, it would appear that the interests of the minor child would best be served if she is allowed to remain with the wife, the order of U.K. court cannot be lost sight of., The order of U.K. Court except for insisiting that the minor be returned to its jurisdiction, the English Court did not intend to separate the child from the mother until a final decision was taken with regard to the custody of the child. The ultimate decision in that regard has to be left to the English Court having regard to the nationality of the child and the fact that both the parents had worked for gain in the U.K. and had also acquired permanent resident status in the U.K. English Court has not directed that the custody of the child should be handed over to  the father but that the child should be returned to the jurisdiction of the Courts in the U.K. which would then proceed to determine as to who would be best suited to have the custody of the child. The High Court has taken into consideration both the questions relating to the Comity of Courts as well as the interest of the minor child, which, no doubt, is one of the most important considerations in matters relating to custody of a minor child.  -  Provided that, if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if ho is satisfied that there is just ground for so doing. Provided that if the Magistrate is satisfied that he is willfully avoiding service, or willfully neglects to attend the Court, the Magistrate may proceed to hear and determine the case ex parte. Any order so made may be set aside for good cause shown, on application made within three months from the date thereof. It is obvious that the proceedings envisaged by Chapter xxxvi of the Code cannto be considered to be purely civil proceedings, though the person in default, against whom maintenance order is sought, may nto be an accused person whose examination without oath is mandatory as prescribed by Section 342 of the Code and he may be entitled to appear as a witness as well. I am aware of some conflict of judicial opinion in some old cases where on the ground that the procedure of trying maintenance applications being that of a summons case, failure to examine the person proceeded against under Section 342 of the Code, was held to vitiate the proceedings, but that conflict was set at rest by later decisions in which this section was held inapplicable to proceedings under S. These proceedings seem to me to be clearly criminal proceedings and I find no logical and rational basis for holding them to be civil proceedings so as to exclude the applicability of Article 134 of the Constitution. The difference between the relative scope of a civil revision and of a criminal revision is well known and revision against an order under Section 488, Cr. The children in these proceedings may, if they are so advised, even now apply to a competent Court under Section 488 for maintenance and if they make out a good claim to the satisfaction of the Court, I have nto the least doubt that suitable orders would be made in accordance with law.',
		'caseanalysis' => null,
		'casesref' => 'Kapur Singh v. Union of India;',
		'citingcases' => '',
		'counselplain' => ' O.P. Sharma, Adv',
		'counseldef' => ' Madan Bhatia, Adv.',
		'court' => 'Delhi',
		'court_type' => 'HC',
		'decidedon' => '1968-12-17',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' I.D. Dua, C.J.',
		'judgement' => '<p>1. In this application for a certificate of fitness for appeal to the Supreme Court from an order made on revision by this Court in proceedings under Section 488, Cr. P. C, a preliminary objection has been raised that Article 134(1)(c) of the Constitution is inapplicable because proceedings under Section 488 are civil proceedings and nto criminal proceedings. Reliance in support of this preliminary objection has been placed on a decision of the Supreme Court in Nand Lal Misra v. K.L. Misra, : 1960CriLJ1246 . Emphasis has been laid on the observations In this Judgment that Chapter xxxvi of the Code of Criminal Procedure is a self-contained one and the relief given under it is essentially of a civil nature. From this sentence, it is sought to be argued that the proceedings under section 488 are civil proceedings and nto criminal proceedings. Reliance has also been placed on a still more recent Judgment of the Supreme Court in Narayan Row v. Ishwar Lal, : [1965]57ITR149(SC) , in which while dealing with an appeal from an order made by the Bombay High Court under Article 226 of the Constitution, in a matter pertaining to recovery of income-tax, it was observed that the proceedings were civil proceedings within the meaning of Article 133(1)(c) of the Constitution. Reference has next been made to a Full Bench decision of the Punjab High Court in Kapur Singh v. Union of India, where also the question about the nature of proceedings under Articles 133 and 226 of the Constitution came up for discussion. In my opinion, none of these decisions throw helpful light on the question which the preliminary objection poses. Section 488 reads as under:</p><p>'488. Order for maintenance of wives and children.--(1) If any person having sufficient means neglects or refuses to maintain his wife or his legitimate or illegitimate child unable to maintain itself, the District Magistrate, a Presidency Magistrate, a Sub-Divisional Magistrate or 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, at such monthly rate, nto exceeding five hundred rupees in the whole, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate from time to time directs.</p><p> (2) Such allowance shall be payable from the date of the order, or if so ordered from the date of the application for maintenance.</p><p> (3) If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in manner hereinbefore provided for levying fines, and may sentence such person, for the whole or any part of each month's allowance remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made:</p><p> Provided that, if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if ho is satisfied that there is just ground for so doing.</p><p> If a husband has contracted marriage with another wife or keeps a mistress, it shall be considered to be just ground for his wife's refusal to live with him:</p><p> Provided, further that no warrant shall be issued for the recovery of any amount due under this direction unless application be made to the Court to levy such amount within a period of one year from the date on which it became due.</p><p> (4) No wife shall be entitled to receive an allowance from her husband under this section if she is living in adultery, or if, without any sufficient reason she refuses to live with her husband, or if they are living separately by mutual consent.</p><p> (5) On proof that any wife in whose favor an order has been made under this section is living in adultery, or that without sufficient reason she refuses to live with her husband, or that they are living separately by mutual consent, the Magistrate shall cancel the order.</p><p> (6) All evidence under this Chapter shall be taken in the presence of the husband or father, as the case may be, or, when his personal attendance is dispensed with, in the presence of his pleader, and shall be recorded in :he manner prescribed in the case of summons-cases:</p><p> Provided that if the Magistrate is satisfied that he is willfully avoiding service, or willfully neglects to attend the Court, the Magistrate may proceed to hear and determine the case ex parte. Any order so made may be set aside for good cause shown, on application made within three months from the date thereof.</p><p> (7) The Court in dealing with applications under this section shall have power to make such order as to costs as may be just.</p><p> (8) Proceedings under this section may be taken against any person in any district where he resides or is, or where he last resided with his wife or, as the case may be, the mother of the illegitimate child.' </p><p>It is obvious that it confers power to order maintenance, on District Magistrates, Presidency Magistrates, Sub-Divisional Magistrates and Magistrates of the 1st Class: Courts which are indisputably criminal Courts and nto civil Courts. Sub-section (6) provides that all evidence under this Chapter has to be taken in the presence of the husband or father, as the case may be, or when his personal attendance is dispensed with, in the presence of his pleader and it is to be recorded in the manner prescribed in the case of summons-cases. This is a further indication that the proceedings are criminal proceedings and nto civil proceedings. The argument that there is no penalty imposed by this section and the proceedings thereforee, cannto be described as 'criminal' is also unacceptable because according to Section 488(3), which provides for enforcement of orders, in certain circumstances, the person in default can be imprisoned for a term which may extend to one month or until payment, if sooner made, though I should nto be understood to hold this consideration to be conclusive on the point either way. It is obvious that the proceedings envisaged by Chapter xxxvi of the Code cannto be considered to be purely civil proceedings, though the person in default, against whom maintenance order is sought, may nto be an accused person whose examination without oath is mandatory as prescribed by Section 342 of the Code and he may be entitled to appear as a witness as well. I am aware of some conflict of judicial opinion in some old cases where on the ground that the procedure of trying maintenance applications being that of a summons case, failure to examine the person proceeded against under Section 342 of the Code, was held to vitiate the proceedings, but that conflict was set at rest by later decisions in which this section was held inapplicable to proceedings under S. 488. However, consistently all the Courts dealing with that question had assumed that the proceedings were criminal proceedings governed by the Code of Criminal Procedure, both in regard to the trial and the power of revision of the Court of the Sessions Judge and of the High Court.</p><p>2. Chapter 7-A of Vol. Iii of Rules and Orders of the Punjab High Court dealing with the maintenance cases also recites that proceedings under Section 488 of the Code of Criminal Procedure are of a criminal character and the provisions contained therein must, thereforee, be strictly followed. Keeping in view the scheme of Chapter xxxvi of the Code of Criminal Procedure and also the scheme of Articles 133 and 134 of the Constitution, I have little hesitation in holding that proceedings under Section 488, Cr. P. C., do fall within the contemplation of criminal proceedings within the meaning of Article 134. The expression 'criminal proceedings' in this Article, seems to me to be wide enough to include maintenance proceedings adjudicated upon by Magistrates initiated under Chapter xxxvI. Such maintenance proceedings are, in my view, criminal proceedings, designed by way of summary process to provide to deserted wives and neglected children, adjudication of their civil right of maintenance up to al limited amount, enforceable through criminal Courts, to avoid the notorious delays of civil proceedings, which may still be utilised for fuller relief under the general law in the ordinary civil Courts.</p><p>3. And then, what directly concerns this Court is the question of the nature of the proceedings on revision in this Court. These proceedings seem to me to be clearly criminal proceedings and I find no logical and rational basis for holding them to be civil proceedings so as to exclude the applicability of Article 134 of the Constitution. Nto only are they registered in this Court as criminal revisions but they are also presented in this Court under the Cr. P. C. and nto under the Civil P. C. The difference between the relative scope of a civil revision and of a criminal revision is well known and revision against an order under Section 488, Cr. P. C. has never been held to my knowledge to be a civil revision so as to exclude the applicability of Art. 134(1)(c) of the Constitution. The preliminary objection is, thereforee, nto easy to sustain.</p><p>4. Coming now to the merits, the learned counsel for the petitioner has very strongly argued that according to Section 488 of the Code, a separate order should have been made granting maintenance to the children. In my opinion, the question which concerns this Court in this present proceedings is nto so much as to what should have been done by the Magistrate while dealing with Section 488, Cr. P. C., but whether there is any such infirmity in the order of this Court as would justify a certificate of fitness within the contemplation of Article 134(1)(c) of the Constitution. It is nto argued, and it cannto be argued, that clause (a) or clause (b) of Article 134(1) covers this case. Clause (c) of this sub-article postulates a case in which a difficult question involving an unsettled principle requires to be finally determined by the Supreme Court. That does nto seem to be the case before me, and indeed no attempt has been made to show that there is any question of principle involved in the impugned order which requires authoritative decision by the Supreme Court. But this apart, the grant of maintenance in this case is a tentative order and it is always open to the authorities to ask for re-consideration and re-determination on account of change of circumstances. The children in these proceedings may, if they are so advised, even now apply to a competent Court under Section 488 for maintenance and if they make out a good claim to the satisfaction of the Court, I have nto the least doubt that suitable orders would be made in accordance with law. The revision on their behalf was held to be barred by time and this Court did nto consider it proper to exercise its suo motu power of revision in this regard. There is no decision on the merits against them by this Court and it has nto been shown that the impugned decision is based on any wrong principle of law which requires further examination by the Supreme Court.</p><p>5. For the foregoing reasons, this application fails and is dismissed.</p><p>6. Application dismissed.<p></p><p>',
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		'pubs' => 'AIR1969Delhi298; 1969CriLJ1243; ILR1968Delhi545',
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		'respondent' => 'Sant Singh',
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	(int) 0 => '<p>1. In this application for a certificate of fitness for appeal to the Supreme Court from an order made on revision by this Court in proceedings under Section 488, Cr. P. C, a preliminary objection has been raised that Article 134(1)(c) of the Constitution is inapplicable because proceedings under Section 488 are civil proceedings and nto criminal proceedings. Reliance in support of this preliminary objection has been placed on a decision of the Supreme Court in Nand Lal Misra v. K.L. Misra, : 1960CriLJ1246 . Emphasis has been laid on the observations In this Judgment that Chapter xxxvi of the Code of Criminal Procedure is a self-contained one and the relief given under it is essentially of a civil nature. From this sentence, it is sought to be argued that the proceedings under section 488 are civil proceedings and nto criminal proceedings. Reliance has also been placed on a still more recent Judgment of the Supreme Court in Narayan Row v. Ishwar Lal, : [1965]57ITR149(SC) , in which while dealing with an appeal from an order made by the Bombay High Court under Article 226 of the Constitution, in a matter pertaining to recovery of income-tax, it was observed that the proceedings were civil proceedings within the meaning of Article 133(1)(c) of the Constitution. Reference has next been made to a Full Bench decision of the Punjab High Court in Kapur Singh v. Union of India, where also the question about the nature of proceedings under Articles 133 and 226 of the Constitution came up for discussion. In my opinion, none of these decisions throw helpful light on the question which the preliminary objection poses. Section 488 reads as under:',
	(int) 1 => '<p>'488. Order for maintenance of wives and children.--(1) If any person having sufficient means neglects or refuses to maintain his wife or his legitimate or illegitimate child unable to maintain itself, the District Magistrate, a Presidency Magistrate, a Sub-Divisional Magistrate or 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, at such monthly rate, nto exceeding five hundred rupees in the whole, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate from time to time directs.',
	(int) 2 => '<p> (2) Such allowance shall be payable from the date of the order, or if so ordered from the date of the application for maintenance.',
	(int) 3 => '<p> (3) If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in manner hereinbefore provided for levying fines, and may sentence such person, for the whole or any part of each month's allowance remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made:',
	(int) 4 => '<p> Provided that, if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if ho is satisfied that there is just ground for so doing.',
	(int) 5 => '<p> If a husband has contracted marriage with another wife or keeps a mistress, it shall be considered to be just ground for his wife's refusal to live with him:',
	(int) 6 => '<p> Provided, further that no warrant shall be issued for the recovery of any amount due under this direction unless application be made to the Court to levy such amount within a period of one year from the date on which it became due.',
	(int) 7 => '<p> (4) No wife shall be entitled to receive an allowance from her husband under this section if she is living in adultery, or if, without any sufficient reason she refuses to live with her husband, or if they are living separately by mutual consent.',
	(int) 8 => '<p> (5) On proof that any wife in whose favor an order has been made under this section is living in adultery, or that without sufficient reason she refuses to live with her husband, or that they are living separately by mutual consent, the Magistrate shall cancel the order.',
	(int) 9 => '<p> (6) All evidence under this Chapter shall be taken in the presence of the husband or father, as the case may be, or, when his personal attendance is dispensed with, in the presence of his pleader, and shall be recorded in :he manner prescribed in the case of summons-cases:',
	(int) 10 => '<p> Provided that if the Magistrate is satisfied that he is willfully avoiding service, or willfully neglects to attend the Court, the Magistrate may proceed to hear and determine the case ex parte. Any order so made may be set aside for good cause shown, on application made within three months from the date thereof.',
	(int) 11 => '<p> (7) The Court in dealing with applications under this section shall have power to make such order as to costs as may be just.',
	(int) 12 => '<p> (8) Proceedings under this section may be taken against any person in any district where he resides or is, or where he last resided with his wife or, as the case may be, the mother of the illegitimate child.' ',
	(int) 13 => '<p>It is obvious that it confers power to order maintenance, on District Magistrates, Presidency Magistrates, Sub-Divisional Magistrates and Magistrates of the 1st Class: Courts which are indisputably criminal Courts and nto civil Courts. Sub-section (6) provides that all evidence under this Chapter has to be taken in the presence of the husband or father, as the case may be, or when his personal attendance is dispensed with, in the presence of his pleader and it is to be recorded in the manner prescribed in the case of summons-cases. This is a further indication that the proceedings are criminal proceedings and nto civil proceedings. The argument that there is no penalty imposed by this section and the proceedings thereforee, cannto be described as 'criminal' is also unacceptable because according to Section 488(3), which provides for enforcement of orders, in certain circumstances, the person in default can be imprisoned for a term which may extend to one month or until payment, if sooner made, though I should nto be understood to hold this consideration to be conclusive on the point either way. It is obvious that the proceedings envisaged by Chapter xxxvi of the Code cannto be considered to be purely civil proceedings, though the person in default, against whom maintenance order is sought, may nto be an accused person whose examination without oath is mandatory as prescribed by Section 342 of the Code and he may be entitled to appear as a witness as well. I am aware of some conflict of judicial opinion in some old cases where on the ground that the procedure of trying maintenance applications being that of a summons case, failure to examine the person proceeded against under Section 342 of the Code, was held to vitiate the proceedings, but that conflict was set at rest by later decisions in which this section was held inapplicable to proceedings under S. 488. However, consistently all the Courts dealing with that question had assumed that the proceedings were criminal proceedings governed by the Code of Criminal Procedure, both in regard to the trial and the power of revision of the Court of the Sessions Judge and of the High Court.',
	(int) 14 => '<p>2. Chapter 7-A of Vol. Iii of Rules and Orders of the Punjab High Court dealing with the maintenance cases also recites that proceedings under Section 488 of the Code of Criminal Procedure are of a criminal character and the provisions contained therein must, thereforee, be strictly followed. Keeping in view the scheme of Chapter xxxvi of the Code of Criminal Procedure and also the scheme of Articles 133 and 134 of the Constitution, I have little hesitation in holding that proceedings under Section 488, Cr. P. C., do fall within the contemplation of criminal proceedings within the meaning of Article 134. The expression 'criminal proceedings' in this Article, seems to me to be wide enough to include maintenance proceedings adjudicated upon by Magistrates initiated under Chapter xxxvI. Such maintenance proceedings are, in my view, criminal proceedings, designed by way of summary process to provide to deserted wives and neglected children, adjudication of their civil right of maintenance up to al limited amount, enforceable through criminal Courts, to avoid the notorious delays of civil proceedings, which may still be utilised for fuller relief under the general law in the ordinary civil Courts.',
	(int) 15 => '<p>3. And then, what directly concerns this Court is the question of the nature of the proceedings on revision in this Court. These proceedings seem to me to be clearly criminal proceedings and I find no logical and rational basis for holding them to be civil proceedings so as to exclude the applicability of Article 134 of the Constitution. Nto only are they registered in this Court as criminal revisions but they are also presented in this Court under the Cr. P. C. and nto under the Civil P. C. The difference between the relative scope of a civil revision and of a criminal revision is well known and revision against an order under Section 488, Cr. P. C. has never been held to my knowledge to be a civil revision so as to exclude the applicability of Art. 134(1)(c) of the Constitution. The preliminary objection is, thereforee, nto easy to sustain.',
	(int) 16 => '<p>4. Coming now to the merits, the learned counsel for the petitioner has very strongly argued that according to Section 488 of the Code, a separate order should have been made granting maintenance to the children. In my opinion, the question which concerns this Court in this present proceedings is nto so much as to what should have been done by the Magistrate while dealing with Section 488, Cr. P. C., but whether there is any such infirmity in the order of this Court as would justify a certificate of fitness within the contemplation of Article 134(1)(c) of the Constitution. It is nto argued, and it cannto be argued, that clause (a) or clause (b) of Article 134(1) covers this case. Clause (c) of this sub-article postulates a case in which a difficult question involving an unsettled principle requires to be finally determined by the Supreme Court. That does nto seem to be the case before me, and indeed no attempt has been made to show that there is any question of principle involved in the impugned order which requires authoritative decision by the Supreme Court. But this apart, the grant of maintenance in this case is a tentative order and it is always open to the authorities to ask for re-consideration and re-determination on account of change of circumstances. The children in these proceedings may, if they are so advised, even now apply to a competent Court under Section 488 for maintenance and if they make out a good claim to the satisfaction of the Court, I have nto the least doubt that suitable orders would be made in accordance with law. The revision on their behalf was held to be barred by time and this Court did nto consider it proper to exercise its suo motu power of revision in this regard. There is no decision on the merits against them by this Court and it has nto been shown that the impugned decision is based on any wrong principle of law which requires further examination by the Supreme Court.',
	(int) 17 => '<p>5. For the foregoing reasons, this application fails and is dismissed.',
	(int) 18 => '<p>6. Application dismissed.<p>',
	(int) 19 => '<p>'
)
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(2) Such allowance shall be payable from the date of the order, or if so ordered from the date of the application for maintenance.

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	'title_for_layout' => 'Harbhajan Kaur Vs Sant Singh - Citation 681173 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '681173',
			'acts' => '<a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 133, 134, 134(1) and 226; <a href="/act/133280/code-of-criminal-procedure-1898-complete-act">Code of Criminal Procedure (CrPC) , 1898</a> - Sections 342, 488, 488(3) and 488(6)',
			'appealno' => 'Criminal Misc. (SCA) No. 855 of 1968',
			'appellant' => 'Harbhajan Kaur',
			'authreffered' => '',
			'casename' => 'Harbhajan Kaur Vs. Sant Singh',
			'casenote' => ' (i) 
Criminal Procedure Code (V of 1898)- Section 488--Proceedings under--nature of--are criminal proceedings and nto Civil proceedings.; The proceedings envisaged by  Chapter xxxvI of the Code cannto be considered 
purely civil proceedings, though the person in default, against whom maintenance order is sought, may nto be an accused person, whose examination without oath is mandatory as prescribed by section 342 of the Code and he may be entitled to appear as a witness as 
well.; Chapter 7-A of Vol. III of Rules and Orders of the Punjab High Court dealing with the maintenance cases also recites that proceedings under section 488 of the Code of Criminal Procedure are of criminal character and the provisions contained therein must, thereforee, be strictly followed.; (ii) Constitution of India - Article 134--Proceedings under Section 488 within the contemplation of--expression--'Criminal proceedings'--scope of.;  That the proceedings under Section 488 Cr. P.C. do fall within the contemplation of criminal proceedings within the meaning of Article 134. 
The expression 'Criminal Proceedings' in this Article is wide enough to include maintenance proceedings adjucated upon by Magistrate initiated under Chapter xxxvI. Such maintenance proceedings are criminal proceedings designed by way of summary process to provide to deserted wives and neglected children adjudication of their civil right of maintenance up to a limited amount enforceable through criminal courts, to avoid the notorious delays of civil proceedings, which may still be utilised for fuller relief under the general law 
in the ordinary civil courts. - Section 13: [Altamas Kabir & Cyriac Joseph,JJ] Custody of child - Welfare of child vis--vis comity of Courts - The minor girl child of 3 1/2 years was brought to India by her mother. The minor girl was a citizen of U.K. being born in U.K. her parents had set up their matrimonial home in U.K. and had acquired status of permanent residents of U.K. The child with her mother was supposed to return to U.K. but the mother cancelled her tickets and remained behind in India. The husband thereupon started procededings before the High Court of Justice, Family Division. U.K. praying for an order that the minor child be made a ward of the Court and for a direction upon the wife to return the minor child to the jurisdiction of the said Court. A further direction was given for the passport and other international travel documents of the minor child to be handed over to the Solicitors of the husband. A petition seeking protection of minor child was thereupon filed by father of the husband before Delhi High Court. A direction for handing over custody of child to father of husband was also sought. The High Court considering fact that the U.K. court was already in seisin of  matter and had passed an interim order and by relying on principle of comity of Nations and Comity of Judgments of the courts of two different countries in deciding the matter directed the wife to take the child of her own to U.K.or hand it over to father of husband to be taken to U.K. as measure of interim custody and that it would be for the U.K. Court to decide the question of custody  -  Order was challenged by wife -  Held, the order of High Court was not liable to be interfered with. Although, on first impression, it would appear that the interests of the minor child would best be served if she is allowed to remain with the wife, the order of U.K. court cannot be lost sight of., The order of U.K. Court except for insisiting that the minor be returned to its jurisdiction, the English Court did not intend to separate the child from the mother until a final decision was taken with regard to the custody of the child. The ultimate decision in that regard has to be left to the English Court having regard to the nationality of the child and the fact that both the parents had worked for gain in the U.K. and had also acquired permanent resident status in the U.K. English Court has not directed that the custody of the child should be handed over to  the father but that the child should be returned to the jurisdiction of the Courts in the U.K. which would then proceed to determine as to who would be best suited to have the custody of the child. The High Court has taken into consideration both the questions relating to the Comity of Courts as well as the interest of the minor child, which, no doubt, is one of the most important considerations in matters relating to custody of a minor child.  -  Provided that, if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if ho is satisfied that there is just ground for so doing. Provided that if the Magistrate is satisfied that he is willfully avoiding service, or willfully neglects to attend the Court, the Magistrate may proceed to hear and determine the case ex parte. Any order so made may be set aside for good cause shown, on application made within three months from the date thereof. It is obvious that the proceedings envisaged by Chapter xxxvi of the Code cannto be considered to be purely civil proceedings, though the person in default, against whom maintenance order is sought, may nto be an accused person whose examination without oath is mandatory as prescribed by Section 342 of the Code and he may be entitled to appear as a witness as well. I am aware of some conflict of judicial opinion in some old cases where on the ground that the procedure of trying maintenance applications being that of a summons case, failure to examine the person proceeded against under Section 342 of the Code, was held to vitiate the proceedings, but that conflict was set at rest by later decisions in which this section was held inapplicable to proceedings under S. These proceedings seem to me to be clearly criminal proceedings and I find no logical and rational basis for holding them to be civil proceedings so as to exclude the applicability of Article 134 of the Constitution. The difference between the relative scope of a civil revision and of a criminal revision is well known and revision against an order under Section 488, Cr. The children in these proceedings may, if they are so advised, even now apply to a competent Court under Section 488 for maintenance and if they make out a good claim to the satisfaction of the Court, I have nto the least doubt that suitable orders would be made in accordance with law.',
			'caseanalysis' => null,
			'casesref' => 'Kapur Singh v. Union of India;',
			'citingcases' => '',
			'counselplain' => ' O.P. Sharma, Adv',
			'counseldef' => ' Madan Bhatia, Adv.',
			'court' => 'Delhi',
			'court_type' => 'HC',
			'decidedon' => '1968-12-17',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' I.D. Dua, C.J.',
			'judgement' => '<p style="text-align: justify;">1. In this application for a certificate of fitness for appeal to the Supreme Court from an order made on revision by this Court in proceedings under Section 488, Cr. P. C, a preliminary objection has been raised that Article 134(1)(c) of the Constitution is inapplicable because proceedings under Section 488 are civil proceedings and nto criminal proceedings. Reliance in support of this preliminary objection has been placed on a decision of the Supreme Court in Nand Lal Misra v. K.L. Misra, : 1960CriLJ1246 . Emphasis has been laid on the observations In this Judgment that Chapter xxxvi of the Code of Criminal Procedure is a self-contained one and the relief given under it is essentially of a civil nature. From this sentence, it is sought to be argued that the proceedings under section 488 are civil proceedings and nto criminal proceedings. Reliance has also been placed on a still more recent Judgment of the Supreme Court in Narayan Row v. Ishwar Lal, : [1965]57ITR149(SC) , in which while dealing with an appeal from an order made by the Bombay High Court under Article 226 of the Constitution, in a matter pertaining to recovery of income-tax, it was observed that the proceedings were civil proceedings within the meaning of Article 133(1)(c) of the Constitution. Reference has next been made to a Full Bench decision of the Punjab High Court in Kapur Singh v. Union of India, where also the question about the nature of proceedings under Articles 133 and 226 of the Constitution came up for discussion. In my opinion, none of these decisions throw helpful light on the question which the preliminary objection poses. Section 488 reads as under:</p><p style="text-align: justify;">'488. Order for maintenance of wives and children.--(1) If any person having sufficient means neglects or refuses to maintain his wife or his legitimate or illegitimate child unable to maintain itself, the District Magistrate, a Presidency Magistrate, a Sub-Divisional Magistrate or 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, at such monthly rate, nto exceeding five hundred rupees in the whole, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate from time to time directs.</p><p style="text-align: justify;"> (2) Such allowance shall be payable from the date of the order, or if so ordered from the date of the application for maintenance.</p><p style="text-align: justify;"> (3) If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in manner hereinbefore provided for levying fines, and may sentence such person, for the whole or any part of each month's allowance remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made:</p><p style="text-align: justify;"> Provided that, if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if ho is satisfied that there is just ground for so doing.</p><p style="text-align: justify;"> If a husband has contracted marriage with another wife or keeps a mistress, it shall be considered to be just ground for his wife's refusal to live with him:</p><p style="text-align: justify;"> Provided, further that no warrant shall be issued for the recovery of any amount due under this direction unless application be made to the Court to levy such amount within a period of one year from the date on which it became due.</p><p style="text-align: justify;"> (4) No wife shall be entitled to receive an allowance from her husband under this section if she is living in adultery, or if, without any sufficient reason she refuses to live with her husband, or if they are living separately by mutual consent.</p><p style="text-align: justify;"> (5) On proof that any wife in whose favor an order has been made under this section is living in adultery, or that without sufficient reason she refuses to live with her husband, or that they are living separately by mutual consent, the Magistrate shall cancel the order.</p><p style="text-align: justify;"> (6) All evidence under this Chapter shall be taken in the presence of the husband or father, as the case may be, or, when his personal attendance is dispensed with, in the presence of his pleader, and shall be recorded in :he manner prescribed in the case of summons-cases:</p><p style="text-align: justify;"> Provided that if the Magistrate is satisfied that he is willfully avoiding service, or willfully neglects to attend the Court, the Magistrate may proceed to hear and determine the case ex parte. Any order so made may be set aside for good cause shown, on application made within three months from the date thereof.</p><p style="text-align: justify;"> (7) The Court in dealing with applications under this section shall have power to make such order as to costs as may be just.</p><p style="text-align: justify;"> (8) Proceedings under this section may be taken against any person in any district where he resides or is, or where he last resided with his wife or, as the case may be, the mother of the illegitimate child.' </p><p style="text-align: justify;">It is obvious that it confers power to order maintenance, on District Magistrates, Presidency Magistrates, Sub-Divisional Magistrates and Magistrates of the 1st Class: Courts which are indisputably criminal Courts and nto civil Courts. Sub-section (6) provides that all evidence under this Chapter has to be taken in the presence of the husband or father, as the case may be, or when his personal attendance is dispensed with, in the presence of his pleader and it is to be recorded in the manner prescribed in the case of summons-cases. This is a further indication that the proceedings are criminal proceedings and nto civil proceedings. The argument that there is no penalty imposed by this section and the proceedings thereforee, cannto be described as 'criminal' is also unacceptable because according to Section 488(3), which provides for enforcement of orders, in certain circumstances, the person in default can be imprisoned for a term which may extend to one month or until payment, if sooner made, though I should nto be understood to hold this consideration to be conclusive on the point either way. It is obvious that the proceedings envisaged by Chapter xxxvi of the Code cannto be considered to be purely civil proceedings, though the person in default, against whom maintenance order is sought, may nto be an accused person whose examination without oath is mandatory as prescribed by Section 342 of the Code and he may be entitled to appear as a witness as well. I am aware of some conflict of judicial opinion in some old cases where on the ground that the procedure of trying maintenance applications being that of a summons case, failure to examine the person proceeded against under Section 342 of the Code, was held to vitiate the proceedings, but that conflict was set at rest by later decisions in which this section was held inapplicable to proceedings under S. 488. However, consistently all the Courts dealing with that question had assumed that the proceedings were criminal proceedings governed by the Code of Criminal Procedure, both in regard to the trial and the power of revision of the Court of the Sessions Judge and of the High Court.</p><p style="text-align: justify;">2. Chapter 7-A of Vol. Iii of Rules and Orders of the Punjab High Court dealing with the maintenance cases also recites that proceedings under Section 488 of the Code of Criminal Procedure are of a criminal character and the provisions contained therein must, thereforee, be strictly followed. Keeping in view the scheme of Chapter xxxvi of the Code of Criminal Procedure and also the scheme of Articles 133 and 134 of the Constitution, I have little hesitation in holding that proceedings under Section 488, Cr. P. C., do fall within the contemplation of criminal proceedings within the meaning of Article 134. The expression 'criminal proceedings' in this Article, seems to me to be wide enough to include maintenance proceedings adjudicated upon by Magistrates initiated under Chapter xxxvI. Such maintenance proceedings are, in my view, criminal proceedings, designed by way of summary process to provide to deserted wives and neglected children, adjudication of their civil right of maintenance up to al limited amount, enforceable through criminal Courts, to avoid the notorious delays of civil proceedings, which may still be utilised for fuller relief under the general law in the ordinary civil Courts.</p><p style="text-align: justify;">3. And then, what directly concerns this Court is the question of the nature of the proceedings on revision in this Court. These proceedings seem to me to be clearly criminal proceedings and I find no logical and rational basis for holding them to be civil proceedings so as to exclude the applicability of Article 134 of the Constitution. Nto only are they registered in this Court as criminal revisions but they are also presented in this Court under the Cr. P. C. and nto under the Civil P. C. The difference between the relative scope of a civil revision and of a criminal revision is well known and revision against an order under Section 488, Cr. P. C. has never been held to my knowledge to be a civil revision so as to exclude the applicability of Art. 134(1)(c) of the Constitution. The preliminary objection is, thereforee, nto easy to sustain.</p><p style="text-align: justify;">4. Coming now to the merits, the learned counsel for the petitioner has very strongly argued that according to Section 488 of the Code, a separate order should have been made granting maintenance to the children. In my opinion, the question which concerns this Court in this present proceedings is nto so much as to what should have been done by the Magistrate while dealing with Section 488, Cr. P. C., but whether there is any such infirmity in the order of this Court as would justify a certificate of fitness within the contemplation of Article 134(1)(c) of the Constitution. It is nto argued, and it cannto be argued, that clause (a) or clause (b) of Article 134(1) covers this case. Clause (c) of this sub-article postulates a case in which a difficult question involving an unsettled principle requires to be finally determined by the Supreme Court. That does nto seem to be the case before me, and indeed no attempt has been made to show that there is any question of principle involved in the impugned order which requires authoritative decision by the Supreme Court. But this apart, the grant of maintenance in this case is a tentative order and it is always open to the authorities to ask for re-consideration and re-determination on account of change of circumstances. The children in these proceedings may, if they are so advised, even now apply to a competent Court under Section 488 for maintenance and if they make out a good claim to the satisfaction of the Court, I have nto the least doubt that suitable orders would be made in accordance with law. The revision on their behalf was held to be barred by time and this Court did nto consider it proper to exercise its suo motu power of revision in this regard. There is no decision on the merits against them by this Court and it has nto been shown that the impugned decision is based on any wrong principle of law which requires further examination by the Supreme Court.</p><p style="text-align: justify;">5. For the foregoing reasons, this application fails and is dismissed.</p><p style="text-align: justify;">6. Application dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => 'AIR1969Delhi298; 1969CriLJ1243; ILR1968Delhi545',
			'ratiodecidendi' => '',
			'respondent' => 'Sant Singh',
			'sub' => 'Criminal;Constitution',
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			'circuit' => null
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$title_for_layout = 'Harbhajan Kaur Vs Sant Singh - Citation 681173 - Court Judgment | '
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		'id' => '681173',
		'acts' => '<a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 133, 134, 134(1) and 226; <a href="/act/133280/code-of-criminal-procedure-1898-complete-act">Code of Criminal Procedure (CrPC) , 1898</a> - Sections 342, 488, 488(3) and 488(6)',
		'appealno' => 'Criminal Misc. (SCA) No. 855 of 1968',
		'appellant' => 'Harbhajan Kaur',
		'authreffered' => '',
		'casename' => 'Harbhajan Kaur Vs. Sant Singh',
		'casenote' => ' (i) 
Criminal Procedure Code (V of 1898)- Section 488--Proceedings under--nature of--are criminal proceedings and nto Civil proceedings.; The proceedings envisaged by  Chapter xxxvI of the Code cannto be considered 
purely civil proceedings, though the person in default, against whom maintenance order is sought, may nto be an accused person, whose examination without oath is mandatory as prescribed by section 342 of the Code and he may be entitled to appear as a witness as 
well.; Chapter 7-A of Vol. III of Rules and Orders of the Punjab High Court dealing with the maintenance cases also recites that proceedings under section 488 of the Code of Criminal Procedure are of criminal character and the provisions contained therein must, thereforee, be strictly followed.; (ii) Constitution of India - Article 134--Proceedings under Section 488 within the contemplation of--expression--'Criminal proceedings'--scope of.;  That the proceedings under Section 488 Cr. P.C. do fall within the contemplation of criminal proceedings within the meaning of Article 134. 
The expression 'Criminal Proceedings' in this Article is wide enough to include maintenance proceedings adjucated upon by Magistrate initiated under Chapter xxxvI. Such maintenance proceedings are criminal proceedings designed by way of summary process to provide to deserted wives and neglected children adjudication of their civil right of maintenance up to a limited amount enforceable through criminal courts, to avoid the notorious delays of civil proceedings, which may still be utilised for fuller relief under the general law 
in the ordinary civil courts. - Section 13: [Altamas Kabir & Cyriac Joseph,JJ] Custody of child - Welfare of child vis--vis comity of Courts - The minor girl child of 3 1/2 years was brought to India by her mother. The minor girl was a citizen of U.K. being born in U.K. her parents had set up their matrimonial home in U.K. and had acquired status of permanent residents of U.K. The child with her mother was supposed to return to U.K. but the mother cancelled her tickets and remained behind in India. The husband thereupon started procededings before the High Court of Justice, Family Division. U.K. praying for an order that the minor child be made a ward of the Court and for a direction upon the wife to return the minor child to the jurisdiction of the said Court. A further direction was given for the passport and other international travel documents of the minor child to be handed over to the Solicitors of the husband. A petition seeking protection of minor child was thereupon filed by father of the husband before Delhi High Court. A direction for handing over custody of child to father of husband was also sought. The High Court considering fact that the U.K. court was already in seisin of  matter and had passed an interim order and by relying on principle of comity of Nations and Comity of Judgments of the courts of two different countries in deciding the matter directed the wife to take the child of her own to U.K.or hand it over to father of husband to be taken to U.K. as measure of interim custody and that it would be for the U.K. Court to decide the question of custody  -  Order was challenged by wife -  Held, the order of High Court was not liable to be interfered with. Although, on first impression, it would appear that the interests of the minor child would best be served if she is allowed to remain with the wife, the order of U.K. court cannot be lost sight of., The order of U.K. Court except for insisiting that the minor be returned to its jurisdiction, the English Court did not intend to separate the child from the mother until a final decision was taken with regard to the custody of the child. The ultimate decision in that regard has to be left to the English Court having regard to the nationality of the child and the fact that both the parents had worked for gain in the U.K. and had also acquired permanent resident status in the U.K. English Court has not directed that the custody of the child should be handed over to  the father but that the child should be returned to the jurisdiction of the Courts in the U.K. which would then proceed to determine as to who would be best suited to have the custody of the child. The High Court has taken into consideration both the questions relating to the Comity of Courts as well as the interest of the minor child, which, no doubt, is one of the most important considerations in matters relating to custody of a minor child.  -  Provided that, if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if ho is satisfied that there is just ground for so doing. Provided that if the Magistrate is satisfied that he is willfully avoiding service, or willfully neglects to attend the Court, the Magistrate may proceed to hear and determine the case ex parte. Any order so made may be set aside for good cause shown, on application made within three months from the date thereof. It is obvious that the proceedings envisaged by Chapter xxxvi of the Code cannto be considered to be purely civil proceedings, though the person in default, against whom maintenance order is sought, may nto be an accused person whose examination without oath is mandatory as prescribed by Section 342 of the Code and he may be entitled to appear as a witness as well. I am aware of some conflict of judicial opinion in some old cases where on the ground that the procedure of trying maintenance applications being that of a summons case, failure to examine the person proceeded against under Section 342 of the Code, was held to vitiate the proceedings, but that conflict was set at rest by later decisions in which this section was held inapplicable to proceedings under S. These proceedings seem to me to be clearly criminal proceedings and I find no logical and rational basis for holding them to be civil proceedings so as to exclude the applicability of Article 134 of the Constitution. The difference between the relative scope of a civil revision and of a criminal revision is well known and revision against an order under Section 488, Cr. The children in these proceedings may, if they are so advised, even now apply to a competent Court under Section 488 for maintenance and if they make out a good claim to the satisfaction of the Court, I have nto the least doubt that suitable orders would be made in accordance with law.',
		'caseanalysis' => null,
		'casesref' => 'Kapur Singh v. Union of India;',
		'citingcases' => '',
		'counselplain' => ' O.P. Sharma, Adv',
		'counseldef' => ' Madan Bhatia, Adv.',
		'court' => 'Delhi',
		'court_type' => 'HC',
		'decidedon' => '1968-12-17',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' I.D. Dua, C.J.',
		'judgement' => '<p>1. In this application for a certificate of fitness for appeal to the Supreme Court from an order made on revision by this Court in proceedings under Section 488, Cr. P. C, a preliminary objection has been raised that Article 134(1)(c) of the Constitution is inapplicable because proceedings under Section 488 are civil proceedings and nto criminal proceedings. Reliance in support of this preliminary objection has been placed on a decision of the Supreme Court in Nand Lal Misra v. K.L. Misra, : 1960CriLJ1246 . Emphasis has been laid on the observations In this Judgment that Chapter xxxvi of the Code of Criminal Procedure is a self-contained one and the relief given under it is essentially of a civil nature. From this sentence, it is sought to be argued that the proceedings under section 488 are civil proceedings and nto criminal proceedings. Reliance has also been placed on a still more recent Judgment of the Supreme Court in Narayan Row v. Ishwar Lal, : [1965]57ITR149(SC) , in which while dealing with an appeal from an order made by the Bombay High Court under Article 226 of the Constitution, in a matter pertaining to recovery of income-tax, it was observed that the proceedings were civil proceedings within the meaning of Article 133(1)(c) of the Constitution. Reference has next been made to a Full Bench decision of the Punjab High Court in Kapur Singh v. Union of India, where also the question about the nature of proceedings under Articles 133 and 226 of the Constitution came up for discussion. In my opinion, none of these decisions throw helpful light on the question which the preliminary objection poses. Section 488 reads as under:</p><p>'488. Order for maintenance of wives and children.--(1) If any person having sufficient means neglects or refuses to maintain his wife or his legitimate or illegitimate child unable to maintain itself, the District Magistrate, a Presidency Magistrate, a Sub-Divisional Magistrate or 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, at such monthly rate, nto exceeding five hundred rupees in the whole, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate from time to time directs.</p><p> (2) Such allowance shall be payable from the date of the order, or if so ordered from the date of the application for maintenance.</p><p> (3) If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in manner hereinbefore provided for levying fines, and may sentence such person, for the whole or any part of each month's allowance remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made:</p><p> Provided that, if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if ho is satisfied that there is just ground for so doing.</p><p> If a husband has contracted marriage with another wife or keeps a mistress, it shall be considered to be just ground for his wife's refusal to live with him:</p><p> Provided, further that no warrant shall be issued for the recovery of any amount due under this direction unless application be made to the Court to levy such amount within a period of one year from the date on which it became due.</p><p> (4) No wife shall be entitled to receive an allowance from her husband under this section if she is living in adultery, or if, without any sufficient reason she refuses to live with her husband, or if they are living separately by mutual consent.</p><p> (5) On proof that any wife in whose favor an order has been made under this section is living in adultery, or that without sufficient reason she refuses to live with her husband, or that they are living separately by mutual consent, the Magistrate shall cancel the order.</p><p> (6) All evidence under this Chapter shall be taken in the presence of the husband or father, as the case may be, or, when his personal attendance is dispensed with, in the presence of his pleader, and shall be recorded in :he manner prescribed in the case of summons-cases:</p><p> Provided that if the Magistrate is satisfied that he is willfully avoiding service, or willfully neglects to attend the Court, the Magistrate may proceed to hear and determine the case ex parte. Any order so made may be set aside for good cause shown, on application made within three months from the date thereof.</p><p> (7) The Court in dealing with applications under this section shall have power to make such order as to costs as may be just.</p><p> (8) Proceedings under this section may be taken against any person in any district where he resides or is, or where he last resided with his wife or, as the case may be, the mother of the illegitimate child.' </p><p>It is obvious that it confers power to order maintenance, on District Magistrates, Presidency Magistrates, Sub-Divisional Magistrates and Magistrates of the 1st Class: Courts which are indisputably criminal Courts and nto civil Courts. Sub-section (6) provides that all evidence under this Chapter has to be taken in the presence of the husband or father, as the case may be, or when his personal attendance is dispensed with, in the presence of his pleader and it is to be recorded in the manner prescribed in the case of summons-cases. This is a further indication that the proceedings are criminal proceedings and nto civil proceedings. The argument that there is no penalty imposed by this section and the proceedings thereforee, cannto be described as 'criminal' is also unacceptable because according to Section 488(3), which provides for enforcement of orders, in certain circumstances, the person in default can be imprisoned for a term which may extend to one month or until payment, if sooner made, though I should nto be understood to hold this consideration to be conclusive on the point either way. It is obvious that the proceedings envisaged by Chapter xxxvi of the Code cannto be considered to be purely civil proceedings, though the person in default, against whom maintenance order is sought, may nto be an accused person whose examination without oath is mandatory as prescribed by Section 342 of the Code and he may be entitled to appear as a witness as well. I am aware of some conflict of judicial opinion in some old cases where on the ground that the procedure of trying maintenance applications being that of a summons case, failure to examine the person proceeded against under Section 342 of the Code, was held to vitiate the proceedings, but that conflict was set at rest by later decisions in which this section was held inapplicable to proceedings under S. 488. However, consistently all the Courts dealing with that question had assumed that the proceedings were criminal proceedings governed by the Code of Criminal Procedure, both in regard to the trial and the power of revision of the Court of the Sessions Judge and of the High Court.</p><p>2. Chapter 7-A of Vol. Iii of Rules and Orders of the Punjab High Court dealing with the maintenance cases also recites that proceedings under Section 488 of the Code of Criminal Procedure are of a criminal character and the provisions contained therein must, thereforee, be strictly followed. Keeping in view the scheme of Chapter xxxvi of the Code of Criminal Procedure and also the scheme of Articles 133 and 134 of the Constitution, I have little hesitation in holding that proceedings under Section 488, Cr. P. C., do fall within the contemplation of criminal proceedings within the meaning of Article 134. The expression 'criminal proceedings' in this Article, seems to me to be wide enough to include maintenance proceedings adjudicated upon by Magistrates initiated under Chapter xxxvI. Such maintenance proceedings are, in my view, criminal proceedings, designed by way of summary process to provide to deserted wives and neglected children, adjudication of their civil right of maintenance up to al limited amount, enforceable through criminal Courts, to avoid the notorious delays of civil proceedings, which may still be utilised for fuller relief under the general law in the ordinary civil Courts.</p><p>3. And then, what directly concerns this Court is the question of the nature of the proceedings on revision in this Court. These proceedings seem to me to be clearly criminal proceedings and I find no logical and rational basis for holding them to be civil proceedings so as to exclude the applicability of Article 134 of the Constitution. Nto only are they registered in this Court as criminal revisions but they are also presented in this Court under the Cr. P. C. and nto under the Civil P. C. The difference between the relative scope of a civil revision and of a criminal revision is well known and revision against an order under Section 488, Cr. P. C. has never been held to my knowledge to be a civil revision so as to exclude the applicability of Art. 134(1)(c) of the Constitution. The preliminary objection is, thereforee, nto easy to sustain.</p><p>4. Coming now to the merits, the learned counsel for the petitioner has very strongly argued that according to Section 488 of the Code, a separate order should have been made granting maintenance to the children. In my opinion, the question which concerns this Court in this present proceedings is nto so much as to what should have been done by the Magistrate while dealing with Section 488, Cr. P. C., but whether there is any such infirmity in the order of this Court as would justify a certificate of fitness within the contemplation of Article 134(1)(c) of the Constitution. It is nto argued, and it cannto be argued, that clause (a) or clause (b) of Article 134(1) covers this case. Clause (c) of this sub-article postulates a case in which a difficult question involving an unsettled principle requires to be finally determined by the Supreme Court. That does nto seem to be the case before me, and indeed no attempt has been made to show that there is any question of principle involved in the impugned order which requires authoritative decision by the Supreme Court. But this apart, the grant of maintenance in this case is a tentative order and it is always open to the authorities to ask for re-consideration and re-determination on account of change of circumstances. The children in these proceedings may, if they are so advised, even now apply to a competent Court under Section 488 for maintenance and if they make out a good claim to the satisfaction of the Court, I have nto the least doubt that suitable orders would be made in accordance with law. The revision on their behalf was held to be barred by time and this Court did nto consider it proper to exercise its suo motu power of revision in this regard. There is no decision on the merits against them by this Court and it has nto been shown that the impugned decision is based on any wrong principle of law which requires further examination by the Supreme Court.</p><p>5. For the foregoing reasons, this application fails and is dismissed.</p><p>6. Application dismissed.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'AIR1969Delhi298; 1969CriLJ1243; ILR1968Delhi545',
		'ratiodecidendi' => '',
		'respondent' => 'Sant Singh',
		'sub' => 'Criminal;Constitution',
		'link' => null,
		'circuit' => null
	)
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	(int) 0 => '<p>1. In this application for a certificate of fitness for appeal to the Supreme Court from an order made on revision by this Court in proceedings under Section 488, Cr. P. C, a preliminary objection has been raised that Article 134(1)(c) of the Constitution is inapplicable because proceedings under Section 488 are civil proceedings and nto criminal proceedings. Reliance in support of this preliminary objection has been placed on a decision of the Supreme Court in Nand Lal Misra v. K.L. Misra, : 1960CriLJ1246 . Emphasis has been laid on the observations In this Judgment that Chapter xxxvi of the Code of Criminal Procedure is a self-contained one and the relief given under it is essentially of a civil nature. From this sentence, it is sought to be argued that the proceedings under section 488 are civil proceedings and nto criminal proceedings. Reliance has also been placed on a still more recent Judgment of the Supreme Court in Narayan Row v. Ishwar Lal, : [1965]57ITR149(SC) , in which while dealing with an appeal from an order made by the Bombay High Court under Article 226 of the Constitution, in a matter pertaining to recovery of income-tax, it was observed that the proceedings were civil proceedings within the meaning of Article 133(1)(c) of the Constitution. Reference has next been made to a Full Bench decision of the Punjab High Court in Kapur Singh v. Union of India, where also the question about the nature of proceedings under Articles 133 and 226 of the Constitution came up for discussion. In my opinion, none of these decisions throw helpful light on the question which the preliminary objection poses. Section 488 reads as under:',
	(int) 1 => '<p>'488. Order for maintenance of wives and children.--(1) If any person having sufficient means neglects or refuses to maintain his wife or his legitimate or illegitimate child unable to maintain itself, the District Magistrate, a Presidency Magistrate, a Sub-Divisional Magistrate or 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, at such monthly rate, nto exceeding five hundred rupees in the whole, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate from time to time directs.',
	(int) 2 => '<p> (2) Such allowance shall be payable from the date of the order, or if so ordered from the date of the application for maintenance.',
	(int) 3 => '<p> (3) If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in manner hereinbefore provided for levying fines, and may sentence such person, for the whole or any part of each month's allowance remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made:',
	(int) 4 => '<p> Provided that, if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if ho is satisfied that there is just ground for so doing.',
	(int) 5 => '<p> If a husband has contracted marriage with another wife or keeps a mistress, it shall be considered to be just ground for his wife's refusal to live with him:',
	(int) 6 => '<p> Provided, further that no warrant shall be issued for the recovery of any amount due under this direction unless application be made to the Court to levy such amount within a period of one year from the date on which it became due.',
	(int) 7 => '<p> (4) No wife shall be entitled to receive an allowance from her husband under this section if she is living in adultery, or if, without any sufficient reason she refuses to live with her husband, or if they are living separately by mutual consent.',
	(int) 8 => '<p> (5) On proof that any wife in whose favor an order has been made under this section is living in adultery, or that without sufficient reason she refuses to live with her husband, or that they are living separately by mutual consent, the Magistrate shall cancel the order.',
	(int) 9 => '<p> (6) All evidence under this Chapter shall be taken in the presence of the husband or father, as the case may be, or, when his personal attendance is dispensed with, in the presence of his pleader, and shall be recorded in :he manner prescribed in the case of summons-cases:',
	(int) 10 => '<p> Provided that if the Magistrate is satisfied that he is willfully avoiding service, or willfully neglects to attend the Court, the Magistrate may proceed to hear and determine the case ex parte. Any order so made may be set aside for good cause shown, on application made within three months from the date thereof.',
	(int) 11 => '<p> (7) The Court in dealing with applications under this section shall have power to make such order as to costs as may be just.',
	(int) 12 => '<p> (8) Proceedings under this section may be taken against any person in any district where he resides or is, or where he last resided with his wife or, as the case may be, the mother of the illegitimate child.' ',
	(int) 13 => '<p>It is obvious that it confers power to order maintenance, on District Magistrates, Presidency Magistrates, Sub-Divisional Magistrates and Magistrates of the 1st Class: Courts which are indisputably criminal Courts and nto civil Courts. Sub-section (6) provides that all evidence under this Chapter has to be taken in the presence of the husband or father, as the case may be, or when his personal attendance is dispensed with, in the presence of his pleader and it is to be recorded in the manner prescribed in the case of summons-cases. This is a further indication that the proceedings are criminal proceedings and nto civil proceedings. The argument that there is no penalty imposed by this section and the proceedings thereforee, cannto be described as 'criminal' is also unacceptable because according to Section 488(3), which provides for enforcement of orders, in certain circumstances, the person in default can be imprisoned for a term which may extend to one month or until payment, if sooner made, though I should nto be understood to hold this consideration to be conclusive on the point either way. It is obvious that the proceedings envisaged by Chapter xxxvi of the Code cannto be considered to be purely civil proceedings, though the person in default, against whom maintenance order is sought, may nto be an accused person whose examination without oath is mandatory as prescribed by Section 342 of the Code and he may be entitled to appear as a witness as well. I am aware of some conflict of judicial opinion in some old cases where on the ground that the procedure of trying maintenance applications being that of a summons case, failure to examine the person proceeded against under Section 342 of the Code, was held to vitiate the proceedings, but that conflict was set at rest by later decisions in which this section was held inapplicable to proceedings under S. 488. However, consistently all the Courts dealing with that question had assumed that the proceedings were criminal proceedings governed by the Code of Criminal Procedure, both in regard to the trial and the power of revision of the Court of the Sessions Judge and of the High Court.',
	(int) 14 => '<p>2. Chapter 7-A of Vol. Iii of Rules and Orders of the Punjab High Court dealing with the maintenance cases also recites that proceedings under Section 488 of the Code of Criminal Procedure are of a criminal character and the provisions contained therein must, thereforee, be strictly followed. Keeping in view the scheme of Chapter xxxvi of the Code of Criminal Procedure and also the scheme of Articles 133 and 134 of the Constitution, I have little hesitation in holding that proceedings under Section 488, Cr. P. C., do fall within the contemplation of criminal proceedings within the meaning of Article 134. The expression 'criminal proceedings' in this Article, seems to me to be wide enough to include maintenance proceedings adjudicated upon by Magistrates initiated under Chapter xxxvI. Such maintenance proceedings are, in my view, criminal proceedings, designed by way of summary process to provide to deserted wives and neglected children, adjudication of their civil right of maintenance up to al limited amount, enforceable through criminal Courts, to avoid the notorious delays of civil proceedings, which may still be utilised for fuller relief under the general law in the ordinary civil Courts.',
	(int) 15 => '<p>3. And then, what directly concerns this Court is the question of the nature of the proceedings on revision in this Court. These proceedings seem to me to be clearly criminal proceedings and I find no logical and rational basis for holding them to be civil proceedings so as to exclude the applicability of Article 134 of the Constitution. Nto only are they registered in this Court as criminal revisions but they are also presented in this Court under the Cr. P. C. and nto under the Civil P. C. The difference between the relative scope of a civil revision and of a criminal revision is well known and revision against an order under Section 488, Cr. P. C. has never been held to my knowledge to be a civil revision so as to exclude the applicability of Art. 134(1)(c) of the Constitution. The preliminary objection is, thereforee, nto easy to sustain.',
	(int) 16 => '<p>4. Coming now to the merits, the learned counsel for the petitioner has very strongly argued that according to Section 488 of the Code, a separate order should have been made granting maintenance to the children. In my opinion, the question which concerns this Court in this present proceedings is nto so much as to what should have been done by the Magistrate while dealing with Section 488, Cr. P. C., but whether there is any such infirmity in the order of this Court as would justify a certificate of fitness within the contemplation of Article 134(1)(c) of the Constitution. It is nto argued, and it cannto be argued, that clause (a) or clause (b) of Article 134(1) covers this case. Clause (c) of this sub-article postulates a case in which a difficult question involving an unsettled principle requires to be finally determined by the Supreme Court. That does nto seem to be the case before me, and indeed no attempt has been made to show that there is any question of principle involved in the impugned order which requires authoritative decision by the Supreme Court. But this apart, the grant of maintenance in this case is a tentative order and it is always open to the authorities to ask for re-consideration and re-determination on account of change of circumstances. The children in these proceedings may, if they are so advised, even now apply to a competent Court under Section 488 for maintenance and if they make out a good claim to the satisfaction of the Court, I have nto the least doubt that suitable orders would be made in accordance with law. The revision on their behalf was held to be barred by time and this Court did nto consider it proper to exercise its suo motu power of revision in this regard. There is no decision on the merits against them by this Court and it has nto been shown that the impugned decision is based on any wrong principle of law which requires further examination by the Supreme Court.',
	(int) 17 => '<p>5. For the foregoing reasons, this application fails and is dismissed.',
	(int) 18 => '<p>6. Application dismissed.<p>',
	(int) 19 => '<p>'
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(3) If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in manner hereinbefore provided for levying fines, and may sentence such person, for the whole or any part of each month's allowance remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made:

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Code Context
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	'title_for_layout' => 'Harbhajan Kaur Vs Sant Singh - Citation 681173 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '681173',
			'acts' => '<a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 133, 134, 134(1) and 226; <a href="/act/133280/code-of-criminal-procedure-1898-complete-act">Code of Criminal Procedure (CrPC) , 1898</a> - Sections 342, 488, 488(3) and 488(6)',
			'appealno' => 'Criminal Misc. (SCA) No. 855 of 1968',
			'appellant' => 'Harbhajan Kaur',
			'authreffered' => '',
			'casename' => 'Harbhajan Kaur Vs. Sant Singh',
			'casenote' => ' (i) 
Criminal Procedure Code (V of 1898)- Section 488--Proceedings under--nature of--are criminal proceedings and nto Civil proceedings.; The proceedings envisaged by  Chapter xxxvI of the Code cannto be considered 
purely civil proceedings, though the person in default, against whom maintenance order is sought, may nto be an accused person, whose examination without oath is mandatory as prescribed by section 342 of the Code and he may be entitled to appear as a witness as 
well.; Chapter 7-A of Vol. III of Rules and Orders of the Punjab High Court dealing with the maintenance cases also recites that proceedings under section 488 of the Code of Criminal Procedure are of criminal character and the provisions contained therein must, thereforee, be strictly followed.; (ii) Constitution of India - Article 134--Proceedings under Section 488 within the contemplation of--expression--'Criminal proceedings'--scope of.;  That the proceedings under Section 488 Cr. P.C. do fall within the contemplation of criminal proceedings within the meaning of Article 134. 
The expression 'Criminal Proceedings' in this Article is wide enough to include maintenance proceedings adjucated upon by Magistrate initiated under Chapter xxxvI. Such maintenance proceedings are criminal proceedings designed by way of summary process to provide to deserted wives and neglected children adjudication of their civil right of maintenance up to a limited amount enforceable through criminal courts, to avoid the notorious delays of civil proceedings, which may still be utilised for fuller relief under the general law 
in the ordinary civil courts. - Section 13: [Altamas Kabir & Cyriac Joseph,JJ] Custody of child - Welfare of child vis--vis comity of Courts - The minor girl child of 3 1/2 years was brought to India by her mother. The minor girl was a citizen of U.K. being born in U.K. her parents had set up their matrimonial home in U.K. and had acquired status of permanent residents of U.K. The child with her mother was supposed to return to U.K. but the mother cancelled her tickets and remained behind in India. The husband thereupon started procededings before the High Court of Justice, Family Division. U.K. praying for an order that the minor child be made a ward of the Court and for a direction upon the wife to return the minor child to the jurisdiction of the said Court. A further direction was given for the passport and other international travel documents of the minor child to be handed over to the Solicitors of the husband. A petition seeking protection of minor child was thereupon filed by father of the husband before Delhi High Court. A direction for handing over custody of child to father of husband was also sought. The High Court considering fact that the U.K. court was already in seisin of  matter and had passed an interim order and by relying on principle of comity of Nations and Comity of Judgments of the courts of two different countries in deciding the matter directed the wife to take the child of her own to U.K.or hand it over to father of husband to be taken to U.K. as measure of interim custody and that it would be for the U.K. Court to decide the question of custody  -  Order was challenged by wife -  Held, the order of High Court was not liable to be interfered with. Although, on first impression, it would appear that the interests of the minor child would best be served if she is allowed to remain with the wife, the order of U.K. court cannot be lost sight of., The order of U.K. Court except for insisiting that the minor be returned to its jurisdiction, the English Court did not intend to separate the child from the mother until a final decision was taken with regard to the custody of the child. The ultimate decision in that regard has to be left to the English Court having regard to the nationality of the child and the fact that both the parents had worked for gain in the U.K. and had also acquired permanent resident status in the U.K. English Court has not directed that the custody of the child should be handed over to  the father but that the child should be returned to the jurisdiction of the Courts in the U.K. which would then proceed to determine as to who would be best suited to have the custody of the child. The High Court has taken into consideration both the questions relating to the Comity of Courts as well as the interest of the minor child, which, no doubt, is one of the most important considerations in matters relating to custody of a minor child.  -  Provided that, if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if ho is satisfied that there is just ground for so doing. Provided that if the Magistrate is satisfied that he is willfully avoiding service, or willfully neglects to attend the Court, the Magistrate may proceed to hear and determine the case ex parte. Any order so made may be set aside for good cause shown, on application made within three months from the date thereof. It is obvious that the proceedings envisaged by Chapter xxxvi of the Code cannto be considered to be purely civil proceedings, though the person in default, against whom maintenance order is sought, may nto be an accused person whose examination without oath is mandatory as prescribed by Section 342 of the Code and he may be entitled to appear as a witness as well. I am aware of some conflict of judicial opinion in some old cases where on the ground that the procedure of trying maintenance applications being that of a summons case, failure to examine the person proceeded against under Section 342 of the Code, was held to vitiate the proceedings, but that conflict was set at rest by later decisions in which this section was held inapplicable to proceedings under S. These proceedings seem to me to be clearly criminal proceedings and I find no logical and rational basis for holding them to be civil proceedings so as to exclude the applicability of Article 134 of the Constitution. The difference between the relative scope of a civil revision and of a criminal revision is well known and revision against an order under Section 488, Cr. The children in these proceedings may, if they are so advised, even now apply to a competent Court under Section 488 for maintenance and if they make out a good claim to the satisfaction of the Court, I have nto the least doubt that suitable orders would be made in accordance with law.',
			'caseanalysis' => null,
			'casesref' => 'Kapur Singh v. Union of India;',
			'citingcases' => '',
			'counselplain' => ' O.P. Sharma, Adv',
			'counseldef' => ' Madan Bhatia, Adv.',
			'court' => 'Delhi',
			'court_type' => 'HC',
			'decidedon' => '1968-12-17',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' I.D. Dua, C.J.',
			'judgement' => '<p style="text-align: justify;">1. In this application for a certificate of fitness for appeal to the Supreme Court from an order made on revision by this Court in proceedings under Section 488, Cr. P. C, a preliminary objection has been raised that Article 134(1)(c) of the Constitution is inapplicable because proceedings under Section 488 are civil proceedings and nto criminal proceedings. Reliance in support of this preliminary objection has been placed on a decision of the Supreme Court in Nand Lal Misra v. K.L. Misra, : 1960CriLJ1246 . Emphasis has been laid on the observations In this Judgment that Chapter xxxvi of the Code of Criminal Procedure is a self-contained one and the relief given under it is essentially of a civil nature. From this sentence, it is sought to be argued that the proceedings under section 488 are civil proceedings and nto criminal proceedings. Reliance has also been placed on a still more recent Judgment of the Supreme Court in Narayan Row v. Ishwar Lal, : [1965]57ITR149(SC) , in which while dealing with an appeal from an order made by the Bombay High Court under Article 226 of the Constitution, in a matter pertaining to recovery of income-tax, it was observed that the proceedings were civil proceedings within the meaning of Article 133(1)(c) of the Constitution. Reference has next been made to a Full Bench decision of the Punjab High Court in Kapur Singh v. Union of India, where also the question about the nature of proceedings under Articles 133 and 226 of the Constitution came up for discussion. In my opinion, none of these decisions throw helpful light on the question which the preliminary objection poses. Section 488 reads as under:</p><p style="text-align: justify;">'488. Order for maintenance of wives and children.--(1) If any person having sufficient means neglects or refuses to maintain his wife or his legitimate or illegitimate child unable to maintain itself, the District Magistrate, a Presidency Magistrate, a Sub-Divisional Magistrate or 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, at such monthly rate, nto exceeding five hundred rupees in the whole, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate from time to time directs.</p><p style="text-align: justify;"> (2) Such allowance shall be payable from the date of the order, or if so ordered from the date of the application for maintenance.</p><p style="text-align: justify;"> (3) If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in manner hereinbefore provided for levying fines, and may sentence such person, for the whole or any part of each month's allowance remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made:</p><p style="text-align: justify;"> Provided that, if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if ho is satisfied that there is just ground for so doing.</p><p style="text-align: justify;"> If a husband has contracted marriage with another wife or keeps a mistress, it shall be considered to be just ground for his wife's refusal to live with him:</p><p style="text-align: justify;"> Provided, further that no warrant shall be issued for the recovery of any amount due under this direction unless application be made to the Court to levy such amount within a period of one year from the date on which it became due.</p><p style="text-align: justify;"> (4) No wife shall be entitled to receive an allowance from her husband under this section if she is living in adultery, or if, without any sufficient reason she refuses to live with her husband, or if they are living separately by mutual consent.</p><p style="text-align: justify;"> (5) On proof that any wife in whose favor an order has been made under this section is living in adultery, or that without sufficient reason she refuses to live with her husband, or that they are living separately by mutual consent, the Magistrate shall cancel the order.</p><p style="text-align: justify;"> (6) All evidence under this Chapter shall be taken in the presence of the husband or father, as the case may be, or, when his personal attendance is dispensed with, in the presence of his pleader, and shall be recorded in :he manner prescribed in the case of summons-cases:</p><p style="text-align: justify;"> Provided that if the Magistrate is satisfied that he is willfully avoiding service, or willfully neglects to attend the Court, the Magistrate may proceed to hear and determine the case ex parte. Any order so made may be set aside for good cause shown, on application made within three months from the date thereof.</p><p style="text-align: justify;"> (7) The Court in dealing with applications under this section shall have power to make such order as to costs as may be just.</p><p style="text-align: justify;"> (8) Proceedings under this section may be taken against any person in any district where he resides or is, or where he last resided with his wife or, as the case may be, the mother of the illegitimate child.' </p><p style="text-align: justify;">It is obvious that it confers power to order maintenance, on District Magistrates, Presidency Magistrates, Sub-Divisional Magistrates and Magistrates of the 1st Class: Courts which are indisputably criminal Courts and nto civil Courts. Sub-section (6) provides that all evidence under this Chapter has to be taken in the presence of the husband or father, as the case may be, or when his personal attendance is dispensed with, in the presence of his pleader and it is to be recorded in the manner prescribed in the case of summons-cases. This is a further indication that the proceedings are criminal proceedings and nto civil proceedings. The argument that there is no penalty imposed by this section and the proceedings thereforee, cannto be described as 'criminal' is also unacceptable because according to Section 488(3), which provides for enforcement of orders, in certain circumstances, the person in default can be imprisoned for a term which may extend to one month or until payment, if sooner made, though I should nto be understood to hold this consideration to be conclusive on the point either way. It is obvious that the proceedings envisaged by Chapter xxxvi of the Code cannto be considered to be purely civil proceedings, though the person in default, against whom maintenance order is sought, may nto be an accused person whose examination without oath is mandatory as prescribed by Section 342 of the Code and he may be entitled to appear as a witness as well. I am aware of some conflict of judicial opinion in some old cases where on the ground that the procedure of trying maintenance applications being that of a summons case, failure to examine the person proceeded against under Section 342 of the Code, was held to vitiate the proceedings, but that conflict was set at rest by later decisions in which this section was held inapplicable to proceedings under S. 488. However, consistently all the Courts dealing with that question had assumed that the proceedings were criminal proceedings governed by the Code of Criminal Procedure, both in regard to the trial and the power of revision of the Court of the Sessions Judge and of the High Court.</p><p style="text-align: justify;">2. Chapter 7-A of Vol. Iii of Rules and Orders of the Punjab High Court dealing with the maintenance cases also recites that proceedings under Section 488 of the Code of Criminal Procedure are of a criminal character and the provisions contained therein must, thereforee, be strictly followed. Keeping in view the scheme of Chapter xxxvi of the Code of Criminal Procedure and also the scheme of Articles 133 and 134 of the Constitution, I have little hesitation in holding that proceedings under Section 488, Cr. P. C., do fall within the contemplation of criminal proceedings within the meaning of Article 134. The expression 'criminal proceedings' in this Article, seems to me to be wide enough to include maintenance proceedings adjudicated upon by Magistrates initiated under Chapter xxxvI. Such maintenance proceedings are, in my view, criminal proceedings, designed by way of summary process to provide to deserted wives and neglected children, adjudication of their civil right of maintenance up to al limited amount, enforceable through criminal Courts, to avoid the notorious delays of civil proceedings, which may still be utilised for fuller relief under the general law in the ordinary civil Courts.</p><p style="text-align: justify;">3. And then, what directly concerns this Court is the question of the nature of the proceedings on revision in this Court. These proceedings seem to me to be clearly criminal proceedings and I find no logical and rational basis for holding them to be civil proceedings so as to exclude the applicability of Article 134 of the Constitution. Nto only are they registered in this Court as criminal revisions but they are also presented in this Court under the Cr. P. C. and nto under the Civil P. C. The difference between the relative scope of a civil revision and of a criminal revision is well known and revision against an order under Section 488, Cr. P. C. has never been held to my knowledge to be a civil revision so as to exclude the applicability of Art. 134(1)(c) of the Constitution. The preliminary objection is, thereforee, nto easy to sustain.</p><p style="text-align: justify;">4. Coming now to the merits, the learned counsel for the petitioner has very strongly argued that according to Section 488 of the Code, a separate order should have been made granting maintenance to the children. In my opinion, the question which concerns this Court in this present proceedings is nto so much as to what should have been done by the Magistrate while dealing with Section 488, Cr. P. C., but whether there is any such infirmity in the order of this Court as would justify a certificate of fitness within the contemplation of Article 134(1)(c) of the Constitution. It is nto argued, and it cannto be argued, that clause (a) or clause (b) of Article 134(1) covers this case. Clause (c) of this sub-article postulates a case in which a difficult question involving an unsettled principle requires to be finally determined by the Supreme Court. That does nto seem to be the case before me, and indeed no attempt has been made to show that there is any question of principle involved in the impugned order which requires authoritative decision by the Supreme Court. But this apart, the grant of maintenance in this case is a tentative order and it is always open to the authorities to ask for re-consideration and re-determination on account of change of circumstances. The children in these proceedings may, if they are so advised, even now apply to a competent Court under Section 488 for maintenance and if they make out a good claim to the satisfaction of the Court, I have nto the least doubt that suitable orders would be made in accordance with law. The revision on their behalf was held to be barred by time and this Court did nto consider it proper to exercise its suo motu power of revision in this regard. There is no decision on the merits against them by this Court and it has nto been shown that the impugned decision is based on any wrong principle of law which requires further examination by the Supreme Court.</p><p style="text-align: justify;">5. For the foregoing reasons, this application fails and is dismissed.</p><p style="text-align: justify;">6. Application dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => 'AIR1969Delhi298; 1969CriLJ1243; ILR1968Delhi545',
			'ratiodecidendi' => '',
			'respondent' => 'Sant Singh',
			'sub' => 'Criminal;Constitution',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'harbhajan-kaur-vs-sant-singh',
	'args' => array(
		(int) 0 => '681173',
		(int) 1 => 'harbhajan-kaur-vs-sant-singh'
	)
)
$title_for_layout = 'Harbhajan Kaur Vs Sant Singh - Citation 681173 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '681173',
		'acts' => '<a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 133, 134, 134(1) and 226; <a href="/act/133280/code-of-criminal-procedure-1898-complete-act">Code of Criminal Procedure (CrPC) , 1898</a> - Sections 342, 488, 488(3) and 488(6)',
		'appealno' => 'Criminal Misc. (SCA) No. 855 of 1968',
		'appellant' => 'Harbhajan Kaur',
		'authreffered' => '',
		'casename' => 'Harbhajan Kaur Vs. Sant Singh',
		'casenote' => ' (i) 
Criminal Procedure Code (V of 1898)- Section 488--Proceedings under--nature of--are criminal proceedings and nto Civil proceedings.; The proceedings envisaged by  Chapter xxxvI of the Code cannto be considered 
purely civil proceedings, though the person in default, against whom maintenance order is sought, may nto be an accused person, whose examination without oath is mandatory as prescribed by section 342 of the Code and he may be entitled to appear as a witness as 
well.; Chapter 7-A of Vol. III of Rules and Orders of the Punjab High Court dealing with the maintenance cases also recites that proceedings under section 488 of the Code of Criminal Procedure are of criminal character and the provisions contained therein must, thereforee, be strictly followed.; (ii) Constitution of India - Article 134--Proceedings under Section 488 within the contemplation of--expression--'Criminal proceedings'--scope of.;  That the proceedings under Section 488 Cr. P.C. do fall within the contemplation of criminal proceedings within the meaning of Article 134. 
The expression 'Criminal Proceedings' in this Article is wide enough to include maintenance proceedings adjucated upon by Magistrate initiated under Chapter xxxvI. Such maintenance proceedings are criminal proceedings designed by way of summary process to provide to deserted wives and neglected children adjudication of their civil right of maintenance up to a limited amount enforceable through criminal courts, to avoid the notorious delays of civil proceedings, which may still be utilised for fuller relief under the general law 
in the ordinary civil courts. - Section 13: [Altamas Kabir & Cyriac Joseph,JJ] Custody of child - Welfare of child vis--vis comity of Courts - The minor girl child of 3 1/2 years was brought to India by her mother. The minor girl was a citizen of U.K. being born in U.K. her parents had set up their matrimonial home in U.K. and had acquired status of permanent residents of U.K. The child with her mother was supposed to return to U.K. but the mother cancelled her tickets and remained behind in India. The husband thereupon started procededings before the High Court of Justice, Family Division. U.K. praying for an order that the minor child be made a ward of the Court and for a direction upon the wife to return the minor child to the jurisdiction of the said Court. A further direction was given for the passport and other international travel documents of the minor child to be handed over to the Solicitors of the husband. A petition seeking protection of minor child was thereupon filed by father of the husband before Delhi High Court. A direction for handing over custody of child to father of husband was also sought. The High Court considering fact that the U.K. court was already in seisin of  matter and had passed an interim order and by relying on principle of comity of Nations and Comity of Judgments of the courts of two different countries in deciding the matter directed the wife to take the child of her own to U.K.or hand it over to father of husband to be taken to U.K. as measure of interim custody and that it would be for the U.K. Court to decide the question of custody  -  Order was challenged by wife -  Held, the order of High Court was not liable to be interfered with. Although, on first impression, it would appear that the interests of the minor child would best be served if she is allowed to remain with the wife, the order of U.K. court cannot be lost sight of., The order of U.K. Court except for insisiting that the minor be returned to its jurisdiction, the English Court did not intend to separate the child from the mother until a final decision was taken with regard to the custody of the child. The ultimate decision in that regard has to be left to the English Court having regard to the nationality of the child and the fact that both the parents had worked for gain in the U.K. and had also acquired permanent resident status in the U.K. English Court has not directed that the custody of the child should be handed over to  the father but that the child should be returned to the jurisdiction of the Courts in the U.K. which would then proceed to determine as to who would be best suited to have the custody of the child. The High Court has taken into consideration both the questions relating to the Comity of Courts as well as the interest of the minor child, which, no doubt, is one of the most important considerations in matters relating to custody of a minor child.  -  Provided that, if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if ho is satisfied that there is just ground for so doing. Provided that if the Magistrate is satisfied that he is willfully avoiding service, or willfully neglects to attend the Court, the Magistrate may proceed to hear and determine the case ex parte. Any order so made may be set aside for good cause shown, on application made within three months from the date thereof. It is obvious that the proceedings envisaged by Chapter xxxvi of the Code cannto be considered to be purely civil proceedings, though the person in default, against whom maintenance order is sought, may nto be an accused person whose examination without oath is mandatory as prescribed by Section 342 of the Code and he may be entitled to appear as a witness as well. I am aware of some conflict of judicial opinion in some old cases where on the ground that the procedure of trying maintenance applications being that of a summons case, failure to examine the person proceeded against under Section 342 of the Code, was held to vitiate the proceedings, but that conflict was set at rest by later decisions in which this section was held inapplicable to proceedings under S. These proceedings seem to me to be clearly criminal proceedings and I find no logical and rational basis for holding them to be civil proceedings so as to exclude the applicability of Article 134 of the Constitution. The difference between the relative scope of a civil revision and of a criminal revision is well known and revision against an order under Section 488, Cr. The children in these proceedings may, if they are so advised, even now apply to a competent Court under Section 488 for maintenance and if they make out a good claim to the satisfaction of the Court, I have nto the least doubt that suitable orders would be made in accordance with law.',
		'caseanalysis' => null,
		'casesref' => 'Kapur Singh v. Union of India;',
		'citingcases' => '',
		'counselplain' => ' O.P. Sharma, Adv',
		'counseldef' => ' Madan Bhatia, Adv.',
		'court' => 'Delhi',
		'court_type' => 'HC',
		'decidedon' => '1968-12-17',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' I.D. Dua, C.J.',
		'judgement' => '<p>1. In this application for a certificate of fitness for appeal to the Supreme Court from an order made on revision by this Court in proceedings under Section 488, Cr. P. C, a preliminary objection has been raised that Article 134(1)(c) of the Constitution is inapplicable because proceedings under Section 488 are civil proceedings and nto criminal proceedings. Reliance in support of this preliminary objection has been placed on a decision of the Supreme Court in Nand Lal Misra v. K.L. Misra, : 1960CriLJ1246 . Emphasis has been laid on the observations In this Judgment that Chapter xxxvi of the Code of Criminal Procedure is a self-contained one and the relief given under it is essentially of a civil nature. From this sentence, it is sought to be argued that the proceedings under section 488 are civil proceedings and nto criminal proceedings. Reliance has also been placed on a still more recent Judgment of the Supreme Court in Narayan Row v. Ishwar Lal, : [1965]57ITR149(SC) , in which while dealing with an appeal from an order made by the Bombay High Court under Article 226 of the Constitution, in a matter pertaining to recovery of income-tax, it was observed that the proceedings were civil proceedings within the meaning of Article 133(1)(c) of the Constitution. Reference has next been made to a Full Bench decision of the Punjab High Court in Kapur Singh v. Union of India, where also the question about the nature of proceedings under Articles 133 and 226 of the Constitution came up for discussion. In my opinion, none of these decisions throw helpful light on the question which the preliminary objection poses. Section 488 reads as under:</p><p>'488. Order for maintenance of wives and children.--(1) If any person having sufficient means neglects or refuses to maintain his wife or his legitimate or illegitimate child unable to maintain itself, the District Magistrate, a Presidency Magistrate, a Sub-Divisional Magistrate or 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, at such monthly rate, nto exceeding five hundred rupees in the whole, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate from time to time directs.</p><p> (2) Such allowance shall be payable from the date of the order, or if so ordered from the date of the application for maintenance.</p><p> (3) If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in manner hereinbefore provided for levying fines, and may sentence such person, for the whole or any part of each month's allowance remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made:</p><p> Provided that, if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if ho is satisfied that there is just ground for so doing.</p><p> If a husband has contracted marriage with another wife or keeps a mistress, it shall be considered to be just ground for his wife's refusal to live with him:</p><p> Provided, further that no warrant shall be issued for the recovery of any amount due under this direction unless application be made to the Court to levy such amount within a period of one year from the date on which it became due.</p><p> (4) No wife shall be entitled to receive an allowance from her husband under this section if she is living in adultery, or if, without any sufficient reason she refuses to live with her husband, or if they are living separately by mutual consent.</p><p> (5) On proof that any wife in whose favor an order has been made under this section is living in adultery, or that without sufficient reason she refuses to live with her husband, or that they are living separately by mutual consent, the Magistrate shall cancel the order.</p><p> (6) All evidence under this Chapter shall be taken in the presence of the husband or father, as the case may be, or, when his personal attendance is dispensed with, in the presence of his pleader, and shall be recorded in :he manner prescribed in the case of summons-cases:</p><p> Provided that if the Magistrate is satisfied that he is willfully avoiding service, or willfully neglects to attend the Court, the Magistrate may proceed to hear and determine the case ex parte. Any order so made may be set aside for good cause shown, on application made within three months from the date thereof.</p><p> (7) The Court in dealing with applications under this section shall have power to make such order as to costs as may be just.</p><p> (8) Proceedings under this section may be taken against any person in any district where he resides or is, or where he last resided with his wife or, as the case may be, the mother of the illegitimate child.' </p><p>It is obvious that it confers power to order maintenance, on District Magistrates, Presidency Magistrates, Sub-Divisional Magistrates and Magistrates of the 1st Class: Courts which are indisputably criminal Courts and nto civil Courts. Sub-section (6) provides that all evidence under this Chapter has to be taken in the presence of the husband or father, as the case may be, or when his personal attendance is dispensed with, in the presence of his pleader and it is to be recorded in the manner prescribed in the case of summons-cases. This is a further indication that the proceedings are criminal proceedings and nto civil proceedings. The argument that there is no penalty imposed by this section and the proceedings thereforee, cannto be described as 'criminal' is also unacceptable because according to Section 488(3), which provides for enforcement of orders, in certain circumstances, the person in default can be imprisoned for a term which may extend to one month or until payment, if sooner made, though I should nto be understood to hold this consideration to be conclusive on the point either way. It is obvious that the proceedings envisaged by Chapter xxxvi of the Code cannto be considered to be purely civil proceedings, though the person in default, against whom maintenance order is sought, may nto be an accused person whose examination without oath is mandatory as prescribed by Section 342 of the Code and he may be entitled to appear as a witness as well. I am aware of some conflict of judicial opinion in some old cases where on the ground that the procedure of trying maintenance applications being that of a summons case, failure to examine the person proceeded against under Section 342 of the Code, was held to vitiate the proceedings, but that conflict was set at rest by later decisions in which this section was held inapplicable to proceedings under S. 488. However, consistently all the Courts dealing with that question had assumed that the proceedings were criminal proceedings governed by the Code of Criminal Procedure, both in regard to the trial and the power of revision of the Court of the Sessions Judge and of the High Court.</p><p>2. Chapter 7-A of Vol. Iii of Rules and Orders of the Punjab High Court dealing with the maintenance cases also recites that proceedings under Section 488 of the Code of Criminal Procedure are of a criminal character and the provisions contained therein must, thereforee, be strictly followed. Keeping in view the scheme of Chapter xxxvi of the Code of Criminal Procedure and also the scheme of Articles 133 and 134 of the Constitution, I have little hesitation in holding that proceedings under Section 488, Cr. P. C., do fall within the contemplation of criminal proceedings within the meaning of Article 134. The expression 'criminal proceedings' in this Article, seems to me to be wide enough to include maintenance proceedings adjudicated upon by Magistrates initiated under Chapter xxxvI. Such maintenance proceedings are, in my view, criminal proceedings, designed by way of summary process to provide to deserted wives and neglected children, adjudication of their civil right of maintenance up to al limited amount, enforceable through criminal Courts, to avoid the notorious delays of civil proceedings, which may still be utilised for fuller relief under the general law in the ordinary civil Courts.</p><p>3. And then, what directly concerns this Court is the question of the nature of the proceedings on revision in this Court. These proceedings seem to me to be clearly criminal proceedings and I find no logical and rational basis for holding them to be civil proceedings so as to exclude the applicability of Article 134 of the Constitution. Nto only are they registered in this Court as criminal revisions but they are also presented in this Court under the Cr. P. C. and nto under the Civil P. C. The difference between the relative scope of a civil revision and of a criminal revision is well known and revision against an order under Section 488, Cr. P. C. has never been held to my knowledge to be a civil revision so as to exclude the applicability of Art. 134(1)(c) of the Constitution. The preliminary objection is, thereforee, nto easy to sustain.</p><p>4. Coming now to the merits, the learned counsel for the petitioner has very strongly argued that according to Section 488 of the Code, a separate order should have been made granting maintenance to the children. In my opinion, the question which concerns this Court in this present proceedings is nto so much as to what should have been done by the Magistrate while dealing with Section 488, Cr. P. C., but whether there is any such infirmity in the order of this Court as would justify a certificate of fitness within the contemplation of Article 134(1)(c) of the Constitution. It is nto argued, and it cannto be argued, that clause (a) or clause (b) of Article 134(1) covers this case. Clause (c) of this sub-article postulates a case in which a difficult question involving an unsettled principle requires to be finally determined by the Supreme Court. That does nto seem to be the case before me, and indeed no attempt has been made to show that there is any question of principle involved in the impugned order which requires authoritative decision by the Supreme Court. But this apart, the grant of maintenance in this case is a tentative order and it is always open to the authorities to ask for re-consideration and re-determination on account of change of circumstances. The children in these proceedings may, if they are so advised, even now apply to a competent Court under Section 488 for maintenance and if they make out a good claim to the satisfaction of the Court, I have nto the least doubt that suitable orders would be made in accordance with law. The revision on their behalf was held to be barred by time and this Court did nto consider it proper to exercise its suo motu power of revision in this regard. There is no decision on the merits against them by this Court and it has nto been shown that the impugned decision is based on any wrong principle of law which requires further examination by the Supreme Court.</p><p>5. For the foregoing reasons, this application fails and is dismissed.</p><p>6. Application dismissed.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'AIR1969Delhi298; 1969CriLJ1243; ILR1968Delhi545',
		'ratiodecidendi' => '',
		'respondent' => 'Sant Singh',
		'sub' => 'Criminal;Constitution',
		'link' => null,
		'circuit' => null
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	(int) 0 => '<p>1. In this application for a certificate of fitness for appeal to the Supreme Court from an order made on revision by this Court in proceedings under Section 488, Cr. P. C, a preliminary objection has been raised that Article 134(1)(c) of the Constitution is inapplicable because proceedings under Section 488 are civil proceedings and nto criminal proceedings. Reliance in support of this preliminary objection has been placed on a decision of the Supreme Court in Nand Lal Misra v. K.L. Misra, : 1960CriLJ1246 . Emphasis has been laid on the observations In this Judgment that Chapter xxxvi of the Code of Criminal Procedure is a self-contained one and the relief given under it is essentially of a civil nature. From this sentence, it is sought to be argued that the proceedings under section 488 are civil proceedings and nto criminal proceedings. Reliance has also been placed on a still more recent Judgment of the Supreme Court in Narayan Row v. Ishwar Lal, : [1965]57ITR149(SC) , in which while dealing with an appeal from an order made by the Bombay High Court under Article 226 of the Constitution, in a matter pertaining to recovery of income-tax, it was observed that the proceedings were civil proceedings within the meaning of Article 133(1)(c) of the Constitution. Reference has next been made to a Full Bench decision of the Punjab High Court in Kapur Singh v. Union of India, where also the question about the nature of proceedings under Articles 133 and 226 of the Constitution came up for discussion. In my opinion, none of these decisions throw helpful light on the question which the preliminary objection poses. Section 488 reads as under:',
	(int) 1 => '<p>'488. Order for maintenance of wives and children.--(1) If any person having sufficient means neglects or refuses to maintain his wife or his legitimate or illegitimate child unable to maintain itself, the District Magistrate, a Presidency Magistrate, a Sub-Divisional Magistrate or 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, at such monthly rate, nto exceeding five hundred rupees in the whole, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate from time to time directs.',
	(int) 2 => '<p> (2) Such allowance shall be payable from the date of the order, or if so ordered from the date of the application for maintenance.',
	(int) 3 => '<p> (3) If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in manner hereinbefore provided for levying fines, and may sentence such person, for the whole or any part of each month's allowance remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made:',
	(int) 4 => '<p> Provided that, if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if ho is satisfied that there is just ground for so doing.',
	(int) 5 => '<p> If a husband has contracted marriage with another wife or keeps a mistress, it shall be considered to be just ground for his wife's refusal to live with him:',
	(int) 6 => '<p> Provided, further that no warrant shall be issued for the recovery of any amount due under this direction unless application be made to the Court to levy such amount within a period of one year from the date on which it became due.',
	(int) 7 => '<p> (4) No wife shall be entitled to receive an allowance from her husband under this section if she is living in adultery, or if, without any sufficient reason she refuses to live with her husband, or if they are living separately by mutual consent.',
	(int) 8 => '<p> (5) On proof that any wife in whose favor an order has been made under this section is living in adultery, or that without sufficient reason she refuses to live with her husband, or that they are living separately by mutual consent, the Magistrate shall cancel the order.',
	(int) 9 => '<p> (6) All evidence under this Chapter shall be taken in the presence of the husband or father, as the case may be, or, when his personal attendance is dispensed with, in the presence of his pleader, and shall be recorded in :he manner prescribed in the case of summons-cases:',
	(int) 10 => '<p> Provided that if the Magistrate is satisfied that he is willfully avoiding service, or willfully neglects to attend the Court, the Magistrate may proceed to hear and determine the case ex parte. Any order so made may be set aside for good cause shown, on application made within three months from the date thereof.',
	(int) 11 => '<p> (7) The Court in dealing with applications under this section shall have power to make such order as to costs as may be just.',
	(int) 12 => '<p> (8) Proceedings under this section may be taken against any person in any district where he resides or is, or where he last resided with his wife or, as the case may be, the mother of the illegitimate child.' ',
	(int) 13 => '<p>It is obvious that it confers power to order maintenance, on District Magistrates, Presidency Magistrates, Sub-Divisional Magistrates and Magistrates of the 1st Class: Courts which are indisputably criminal Courts and nto civil Courts. Sub-section (6) provides that all evidence under this Chapter has to be taken in the presence of the husband or father, as the case may be, or when his personal attendance is dispensed with, in the presence of his pleader and it is to be recorded in the manner prescribed in the case of summons-cases. This is a further indication that the proceedings are criminal proceedings and nto civil proceedings. The argument that there is no penalty imposed by this section and the proceedings thereforee, cannto be described as 'criminal' is also unacceptable because according to Section 488(3), which provides for enforcement of orders, in certain circumstances, the person in default can be imprisoned for a term which may extend to one month or until payment, if sooner made, though I should nto be understood to hold this consideration to be conclusive on the point either way. It is obvious that the proceedings envisaged by Chapter xxxvi of the Code cannto be considered to be purely civil proceedings, though the person in default, against whom maintenance order is sought, may nto be an accused person whose examination without oath is mandatory as prescribed by Section 342 of the Code and he may be entitled to appear as a witness as well. I am aware of some conflict of judicial opinion in some old cases where on the ground that the procedure of trying maintenance applications being that of a summons case, failure to examine the person proceeded against under Section 342 of the Code, was held to vitiate the proceedings, but that conflict was set at rest by later decisions in which this section was held inapplicable to proceedings under S. 488. However, consistently all the Courts dealing with that question had assumed that the proceedings were criminal proceedings governed by the Code of Criminal Procedure, both in regard to the trial and the power of revision of the Court of the Sessions Judge and of the High Court.',
	(int) 14 => '<p>2. Chapter 7-A of Vol. Iii of Rules and Orders of the Punjab High Court dealing with the maintenance cases also recites that proceedings under Section 488 of the Code of Criminal Procedure are of a criminal character and the provisions contained therein must, thereforee, be strictly followed. Keeping in view the scheme of Chapter xxxvi of the Code of Criminal Procedure and also the scheme of Articles 133 and 134 of the Constitution, I have little hesitation in holding that proceedings under Section 488, Cr. P. C., do fall within the contemplation of criminal proceedings within the meaning of Article 134. The expression 'criminal proceedings' in this Article, seems to me to be wide enough to include maintenance proceedings adjudicated upon by Magistrates initiated under Chapter xxxvI. Such maintenance proceedings are, in my view, criminal proceedings, designed by way of summary process to provide to deserted wives and neglected children, adjudication of their civil right of maintenance up to al limited amount, enforceable through criminal Courts, to avoid the notorious delays of civil proceedings, which may still be utilised for fuller relief under the general law in the ordinary civil Courts.',
	(int) 15 => '<p>3. And then, what directly concerns this Court is the question of the nature of the proceedings on revision in this Court. These proceedings seem to me to be clearly criminal proceedings and I find no logical and rational basis for holding them to be civil proceedings so as to exclude the applicability of Article 134 of the Constitution. Nto only are they registered in this Court as criminal revisions but they are also presented in this Court under the Cr. P. C. and nto under the Civil P. C. The difference between the relative scope of a civil revision and of a criminal revision is well known and revision against an order under Section 488, Cr. P. C. has never been held to my knowledge to be a civil revision so as to exclude the applicability of Art. 134(1)(c) of the Constitution. The preliminary objection is, thereforee, nto easy to sustain.',
	(int) 16 => '<p>4. Coming now to the merits, the learned counsel for the petitioner has very strongly argued that according to Section 488 of the Code, a separate order should have been made granting maintenance to the children. In my opinion, the question which concerns this Court in this present proceedings is nto so much as to what should have been done by the Magistrate while dealing with Section 488, Cr. P. C., but whether there is any such infirmity in the order of this Court as would justify a certificate of fitness within the contemplation of Article 134(1)(c) of the Constitution. It is nto argued, and it cannto be argued, that clause (a) or clause (b) of Article 134(1) covers this case. Clause (c) of this sub-article postulates a case in which a difficult question involving an unsettled principle requires to be finally determined by the Supreme Court. That does nto seem to be the case before me, and indeed no attempt has been made to show that there is any question of principle involved in the impugned order which requires authoritative decision by the Supreme Court. But this apart, the grant of maintenance in this case is a tentative order and it is always open to the authorities to ask for re-consideration and re-determination on account of change of circumstances. The children in these proceedings may, if they are so advised, even now apply to a competent Court under Section 488 for maintenance and if they make out a good claim to the satisfaction of the Court, I have nto the least doubt that suitable orders would be made in accordance with law. The revision on their behalf was held to be barred by time and this Court did nto consider it proper to exercise its suo motu power of revision in this regard. There is no decision on the merits against them by this Court and it has nto been shown that the impugned decision is based on any wrong principle of law which requires further examination by the Supreme Court.',
	(int) 17 => '<p>5. For the foregoing reasons, this application fails and is dismissed.',
	(int) 18 => '<p>6. Application dismissed.<p>',
	(int) 19 => '<p>'
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Provided that, if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if ho is satisfied that there is just ground for so doing.

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	'title_for_layout' => 'Harbhajan Kaur Vs Sant Singh - Citation 681173 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '681173',
			'acts' => '<a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 133, 134, 134(1) and 226; <a href="/act/133280/code-of-criminal-procedure-1898-complete-act">Code of Criminal Procedure (CrPC) , 1898</a> - Sections 342, 488, 488(3) and 488(6)',
			'appealno' => 'Criminal Misc. (SCA) No. 855 of 1968',
			'appellant' => 'Harbhajan Kaur',
			'authreffered' => '',
			'casename' => 'Harbhajan Kaur Vs. Sant Singh',
			'casenote' => ' (i) 
Criminal Procedure Code (V of 1898)- Section 488--Proceedings under--nature of--are criminal proceedings and nto Civil proceedings.; The proceedings envisaged by  Chapter xxxvI of the Code cannto be considered 
purely civil proceedings, though the person in default, against whom maintenance order is sought, may nto be an accused person, whose examination without oath is mandatory as prescribed by section 342 of the Code and he may be entitled to appear as a witness as 
well.; Chapter 7-A of Vol. III of Rules and Orders of the Punjab High Court dealing with the maintenance cases also recites that proceedings under section 488 of the Code of Criminal Procedure are of criminal character and the provisions contained therein must, thereforee, be strictly followed.; (ii) Constitution of India - Article 134--Proceedings under Section 488 within the contemplation of--expression--'Criminal proceedings'--scope of.;  That the proceedings under Section 488 Cr. P.C. do fall within the contemplation of criminal proceedings within the meaning of Article 134. 
The expression 'Criminal Proceedings' in this Article is wide enough to include maintenance proceedings adjucated upon by Magistrate initiated under Chapter xxxvI. Such maintenance proceedings are criminal proceedings designed by way of summary process to provide to deserted wives and neglected children adjudication of their civil right of maintenance up to a limited amount enforceable through criminal courts, to avoid the notorious delays of civil proceedings, which may still be utilised for fuller relief under the general law 
in the ordinary civil courts. - Section 13: [Altamas Kabir & Cyriac Joseph,JJ] Custody of child - Welfare of child vis--vis comity of Courts - The minor girl child of 3 1/2 years was brought to India by her mother. The minor girl was a citizen of U.K. being born in U.K. her parents had set up their matrimonial home in U.K. and had acquired status of permanent residents of U.K. The child with her mother was supposed to return to U.K. but the mother cancelled her tickets and remained behind in India. The husband thereupon started procededings before the High Court of Justice, Family Division. U.K. praying for an order that the minor child be made a ward of the Court and for a direction upon the wife to return the minor child to the jurisdiction of the said Court. A further direction was given for the passport and other international travel documents of the minor child to be handed over to the Solicitors of the husband. A petition seeking protection of minor child was thereupon filed by father of the husband before Delhi High Court. A direction for handing over custody of child to father of husband was also sought. The High Court considering fact that the U.K. court was already in seisin of  matter and had passed an interim order and by relying on principle of comity of Nations and Comity of Judgments of the courts of two different countries in deciding the matter directed the wife to take the child of her own to U.K.or hand it over to father of husband to be taken to U.K. as measure of interim custody and that it would be for the U.K. Court to decide the question of custody  -  Order was challenged by wife -  Held, the order of High Court was not liable to be interfered with. Although, on first impression, it would appear that the interests of the minor child would best be served if she is allowed to remain with the wife, the order of U.K. court cannot be lost sight of., The order of U.K. Court except for insisiting that the minor be returned to its jurisdiction, the English Court did not intend to separate the child from the mother until a final decision was taken with regard to the custody of the child. The ultimate decision in that regard has to be left to the English Court having regard to the nationality of the child and the fact that both the parents had worked for gain in the U.K. and had also acquired permanent resident status in the U.K. English Court has not directed that the custody of the child should be handed over to  the father but that the child should be returned to the jurisdiction of the Courts in the U.K. which would then proceed to determine as to who would be best suited to have the custody of the child. The High Court has taken into consideration both the questions relating to the Comity of Courts as well as the interest of the minor child, which, no doubt, is one of the most important considerations in matters relating to custody of a minor child.  -  Provided that, if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if ho is satisfied that there is just ground for so doing. Provided that if the Magistrate is satisfied that he is willfully avoiding service, or willfully neglects to attend the Court, the Magistrate may proceed to hear and determine the case ex parte. Any order so made may be set aside for good cause shown, on application made within three months from the date thereof. It is obvious that the proceedings envisaged by Chapter xxxvi of the Code cannto be considered to be purely civil proceedings, though the person in default, against whom maintenance order is sought, may nto be an accused person whose examination without oath is mandatory as prescribed by Section 342 of the Code and he may be entitled to appear as a witness as well. I am aware of some conflict of judicial opinion in some old cases where on the ground that the procedure of trying maintenance applications being that of a summons case, failure to examine the person proceeded against under Section 342 of the Code, was held to vitiate the proceedings, but that conflict was set at rest by later decisions in which this section was held inapplicable to proceedings under S. These proceedings seem to me to be clearly criminal proceedings and I find no logical and rational basis for holding them to be civil proceedings so as to exclude the applicability of Article 134 of the Constitution. The difference between the relative scope of a civil revision and of a criminal revision is well known and revision against an order under Section 488, Cr. The children in these proceedings may, if they are so advised, even now apply to a competent Court under Section 488 for maintenance and if they make out a good claim to the satisfaction of the Court, I have nto the least doubt that suitable orders would be made in accordance with law.',
			'caseanalysis' => null,
			'casesref' => 'Kapur Singh v. Union of India;',
			'citingcases' => '',
			'counselplain' => ' O.P. Sharma, Adv',
			'counseldef' => ' Madan Bhatia, Adv.',
			'court' => 'Delhi',
			'court_type' => 'HC',
			'decidedon' => '1968-12-17',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' I.D. Dua, C.J.',
			'judgement' => '<p style="text-align: justify;">1. In this application for a certificate of fitness for appeal to the Supreme Court from an order made on revision by this Court in proceedings under Section 488, Cr. P. C, a preliminary objection has been raised that Article 134(1)(c) of the Constitution is inapplicable because proceedings under Section 488 are civil proceedings and nto criminal proceedings. Reliance in support of this preliminary objection has been placed on a decision of the Supreme Court in Nand Lal Misra v. K.L. Misra, : 1960CriLJ1246 . Emphasis has been laid on the observations In this Judgment that Chapter xxxvi of the Code of Criminal Procedure is a self-contained one and the relief given under it is essentially of a civil nature. From this sentence, it is sought to be argued that the proceedings under section 488 are civil proceedings and nto criminal proceedings. Reliance has also been placed on a still more recent Judgment of the Supreme Court in Narayan Row v. Ishwar Lal, : [1965]57ITR149(SC) , in which while dealing with an appeal from an order made by the Bombay High Court under Article 226 of the Constitution, in a matter pertaining to recovery of income-tax, it was observed that the proceedings were civil proceedings within the meaning of Article 133(1)(c) of the Constitution. Reference has next been made to a Full Bench decision of the Punjab High Court in Kapur Singh v. Union of India, where also the question about the nature of proceedings under Articles 133 and 226 of the Constitution came up for discussion. In my opinion, none of these decisions throw helpful light on the question which the preliminary objection poses. Section 488 reads as under:</p><p style="text-align: justify;">'488. Order for maintenance of wives and children.--(1) If any person having sufficient means neglects or refuses to maintain his wife or his legitimate or illegitimate child unable to maintain itself, the District Magistrate, a Presidency Magistrate, a Sub-Divisional Magistrate or 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, at such monthly rate, nto exceeding five hundred rupees in the whole, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate from time to time directs.</p><p style="text-align: justify;"> (2) Such allowance shall be payable from the date of the order, or if so ordered from the date of the application for maintenance.</p><p style="text-align: justify;"> (3) If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in manner hereinbefore provided for levying fines, and may sentence such person, for the whole or any part of each month's allowance remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made:</p><p style="text-align: justify;"> Provided that, if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if ho is satisfied that there is just ground for so doing.</p><p style="text-align: justify;"> If a husband has contracted marriage with another wife or keeps a mistress, it shall be considered to be just ground for his wife's refusal to live with him:</p><p style="text-align: justify;"> Provided, further that no warrant shall be issued for the recovery of any amount due under this direction unless application be made to the Court to levy such amount within a period of one year from the date on which it became due.</p><p style="text-align: justify;"> (4) No wife shall be entitled to receive an allowance from her husband under this section if she is living in adultery, or if, without any sufficient reason she refuses to live with her husband, or if they are living separately by mutual consent.</p><p style="text-align: justify;"> (5) On proof that any wife in whose favor an order has been made under this section is living in adultery, or that without sufficient reason she refuses to live with her husband, or that they are living separately by mutual consent, the Magistrate shall cancel the order.</p><p style="text-align: justify;"> (6) All evidence under this Chapter shall be taken in the presence of the husband or father, as the case may be, or, when his personal attendance is dispensed with, in the presence of his pleader, and shall be recorded in :he manner prescribed in the case of summons-cases:</p><p style="text-align: justify;"> Provided that if the Magistrate is satisfied that he is willfully avoiding service, or willfully neglects to attend the Court, the Magistrate may proceed to hear and determine the case ex parte. Any order so made may be set aside for good cause shown, on application made within three months from the date thereof.</p><p style="text-align: justify;"> (7) The Court in dealing with applications under this section shall have power to make such order as to costs as may be just.</p><p style="text-align: justify;"> (8) Proceedings under this section may be taken against any person in any district where he resides or is, or where he last resided with his wife or, as the case may be, the mother of the illegitimate child.' </p><p style="text-align: justify;">It is obvious that it confers power to order maintenance, on District Magistrates, Presidency Magistrates, Sub-Divisional Magistrates and Magistrates of the 1st Class: Courts which are indisputably criminal Courts and nto civil Courts. Sub-section (6) provides that all evidence under this Chapter has to be taken in the presence of the husband or father, as the case may be, or when his personal attendance is dispensed with, in the presence of his pleader and it is to be recorded in the manner prescribed in the case of summons-cases. This is a further indication that the proceedings are criminal proceedings and nto civil proceedings. The argument that there is no penalty imposed by this section and the proceedings thereforee, cannto be described as 'criminal' is also unacceptable because according to Section 488(3), which provides for enforcement of orders, in certain circumstances, the person in default can be imprisoned for a term which may extend to one month or until payment, if sooner made, though I should nto be understood to hold this consideration to be conclusive on the point either way. It is obvious that the proceedings envisaged by Chapter xxxvi of the Code cannto be considered to be purely civil proceedings, though the person in default, against whom maintenance order is sought, may nto be an accused person whose examination without oath is mandatory as prescribed by Section 342 of the Code and he may be entitled to appear as a witness as well. I am aware of some conflict of judicial opinion in some old cases where on the ground that the procedure of trying maintenance applications being that of a summons case, failure to examine the person proceeded against under Section 342 of the Code, was held to vitiate the proceedings, but that conflict was set at rest by later decisions in which this section was held inapplicable to proceedings under S. 488. However, consistently all the Courts dealing with that question had assumed that the proceedings were criminal proceedings governed by the Code of Criminal Procedure, both in regard to the trial and the power of revision of the Court of the Sessions Judge and of the High Court.</p><p style="text-align: justify;">2. Chapter 7-A of Vol. Iii of Rules and Orders of the Punjab High Court dealing with the maintenance cases also recites that proceedings under Section 488 of the Code of Criminal Procedure are of a criminal character and the provisions contained therein must, thereforee, be strictly followed. Keeping in view the scheme of Chapter xxxvi of the Code of Criminal Procedure and also the scheme of Articles 133 and 134 of the Constitution, I have little hesitation in holding that proceedings under Section 488, Cr. P. C., do fall within the contemplation of criminal proceedings within the meaning of Article 134. The expression 'criminal proceedings' in this Article, seems to me to be wide enough to include maintenance proceedings adjudicated upon by Magistrates initiated under Chapter xxxvI. Such maintenance proceedings are, in my view, criminal proceedings, designed by way of summary process to provide to deserted wives and neglected children, adjudication of their civil right of maintenance up to al limited amount, enforceable through criminal Courts, to avoid the notorious delays of civil proceedings, which may still be utilised for fuller relief under the general law in the ordinary civil Courts.</p><p style="text-align: justify;">3. And then, what directly concerns this Court is the question of the nature of the proceedings on revision in this Court. These proceedings seem to me to be clearly criminal proceedings and I find no logical and rational basis for holding them to be civil proceedings so as to exclude the applicability of Article 134 of the Constitution. Nto only are they registered in this Court as criminal revisions but they are also presented in this Court under the Cr. P. C. and nto under the Civil P. C. The difference between the relative scope of a civil revision and of a criminal revision is well known and revision against an order under Section 488, Cr. P. C. has never been held to my knowledge to be a civil revision so as to exclude the applicability of Art. 134(1)(c) of the Constitution. The preliminary objection is, thereforee, nto easy to sustain.</p><p style="text-align: justify;">4. Coming now to the merits, the learned counsel for the petitioner has very strongly argued that according to Section 488 of the Code, a separate order should have been made granting maintenance to the children. In my opinion, the question which concerns this Court in this present proceedings is nto so much as to what should have been done by the Magistrate while dealing with Section 488, Cr. P. C., but whether there is any such infirmity in the order of this Court as would justify a certificate of fitness within the contemplation of Article 134(1)(c) of the Constitution. It is nto argued, and it cannto be argued, that clause (a) or clause (b) of Article 134(1) covers this case. Clause (c) of this sub-article postulates a case in which a difficult question involving an unsettled principle requires to be finally determined by the Supreme Court. That does nto seem to be the case before me, and indeed no attempt has been made to show that there is any question of principle involved in the impugned order which requires authoritative decision by the Supreme Court. But this apart, the grant of maintenance in this case is a tentative order and it is always open to the authorities to ask for re-consideration and re-determination on account of change of circumstances. The children in these proceedings may, if they are so advised, even now apply to a competent Court under Section 488 for maintenance and if they make out a good claim to the satisfaction of the Court, I have nto the least doubt that suitable orders would be made in accordance with law. The revision on their behalf was held to be barred by time and this Court did nto consider it proper to exercise its suo motu power of revision in this regard. There is no decision on the merits against them by this Court and it has nto been shown that the impugned decision is based on any wrong principle of law which requires further examination by the Supreme Court.</p><p style="text-align: justify;">5. For the foregoing reasons, this application fails and is dismissed.</p><p style="text-align: justify;">6. Application dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => 'AIR1969Delhi298; 1969CriLJ1243; ILR1968Delhi545',
			'ratiodecidendi' => '',
			'respondent' => 'Sant Singh',
			'sub' => 'Criminal;Constitution',
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			'circuit' => null
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$title_for_layout = 'Harbhajan Kaur Vs Sant Singh - Citation 681173 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '681173',
		'acts' => '<a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 133, 134, 134(1) and 226; <a href="/act/133280/code-of-criminal-procedure-1898-complete-act">Code of Criminal Procedure (CrPC) , 1898</a> - Sections 342, 488, 488(3) and 488(6)',
		'appealno' => 'Criminal Misc. (SCA) No. 855 of 1968',
		'appellant' => 'Harbhajan Kaur',
		'authreffered' => '',
		'casename' => 'Harbhajan Kaur Vs. Sant Singh',
		'casenote' => ' (i) 
Criminal Procedure Code (V of 1898)- Section 488--Proceedings under--nature of--are criminal proceedings and nto Civil proceedings.; The proceedings envisaged by  Chapter xxxvI of the Code cannto be considered 
purely civil proceedings, though the person in default, against whom maintenance order is sought, may nto be an accused person, whose examination without oath is mandatory as prescribed by section 342 of the Code and he may be entitled to appear as a witness as 
well.; Chapter 7-A of Vol. III of Rules and Orders of the Punjab High Court dealing with the maintenance cases also recites that proceedings under section 488 of the Code of Criminal Procedure are of criminal character and the provisions contained therein must, thereforee, be strictly followed.; (ii) Constitution of India - Article 134--Proceedings under Section 488 within the contemplation of--expression--'Criminal proceedings'--scope of.;  That the proceedings under Section 488 Cr. P.C. do fall within the contemplation of criminal proceedings within the meaning of Article 134. 
The expression 'Criminal Proceedings' in this Article is wide enough to include maintenance proceedings adjucated upon by Magistrate initiated under Chapter xxxvI. Such maintenance proceedings are criminal proceedings designed by way of summary process to provide to deserted wives and neglected children adjudication of their civil right of maintenance up to a limited amount enforceable through criminal courts, to avoid the notorious delays of civil proceedings, which may still be utilised for fuller relief under the general law 
in the ordinary civil courts. - Section 13: [Altamas Kabir & Cyriac Joseph,JJ] Custody of child - Welfare of child vis--vis comity of Courts - The minor girl child of 3 1/2 years was brought to India by her mother. The minor girl was a citizen of U.K. being born in U.K. her parents had set up their matrimonial home in U.K. and had acquired status of permanent residents of U.K. The child with her mother was supposed to return to U.K. but the mother cancelled her tickets and remained behind in India. The husband thereupon started procededings before the High Court of Justice, Family Division. U.K. praying for an order that the minor child be made a ward of the Court and for a direction upon the wife to return the minor child to the jurisdiction of the said Court. A further direction was given for the passport and other international travel documents of the minor child to be handed over to the Solicitors of the husband. A petition seeking protection of minor child was thereupon filed by father of the husband before Delhi High Court. A direction for handing over custody of child to father of husband was also sought. The High Court considering fact that the U.K. court was already in seisin of  matter and had passed an interim order and by relying on principle of comity of Nations and Comity of Judgments of the courts of two different countries in deciding the matter directed the wife to take the child of her own to U.K.or hand it over to father of husband to be taken to U.K. as measure of interim custody and that it would be for the U.K. Court to decide the question of custody  -  Order was challenged by wife -  Held, the order of High Court was not liable to be interfered with. Although, on first impression, it would appear that the interests of the minor child would best be served if she is allowed to remain with the wife, the order of U.K. court cannot be lost sight of., The order of U.K. Court except for insisiting that the minor be returned to its jurisdiction, the English Court did not intend to separate the child from the mother until a final decision was taken with regard to the custody of the child. The ultimate decision in that regard has to be left to the English Court having regard to the nationality of the child and the fact that both the parents had worked for gain in the U.K. and had also acquired permanent resident status in the U.K. English Court has not directed that the custody of the child should be handed over to  the father but that the child should be returned to the jurisdiction of the Courts in the U.K. which would then proceed to determine as to who would be best suited to have the custody of the child. The High Court has taken into consideration both the questions relating to the Comity of Courts as well as the interest of the minor child, which, no doubt, is one of the most important considerations in matters relating to custody of a minor child.  -  Provided that, if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if ho is satisfied that there is just ground for so doing. Provided that if the Magistrate is satisfied that he is willfully avoiding service, or willfully neglects to attend the Court, the Magistrate may proceed to hear and determine the case ex parte. Any order so made may be set aside for good cause shown, on application made within three months from the date thereof. It is obvious that the proceedings envisaged by Chapter xxxvi of the Code cannto be considered to be purely civil proceedings, though the person in default, against whom maintenance order is sought, may nto be an accused person whose examination without oath is mandatory as prescribed by Section 342 of the Code and he may be entitled to appear as a witness as well. I am aware of some conflict of judicial opinion in some old cases where on the ground that the procedure of trying maintenance applications being that of a summons case, failure to examine the person proceeded against under Section 342 of the Code, was held to vitiate the proceedings, but that conflict was set at rest by later decisions in which this section was held inapplicable to proceedings under S. These proceedings seem to me to be clearly criminal proceedings and I find no logical and rational basis for holding them to be civil proceedings so as to exclude the applicability of Article 134 of the Constitution. The difference between the relative scope of a civil revision and of a criminal revision is well known and revision against an order under Section 488, Cr. The children in these proceedings may, if they are so advised, even now apply to a competent Court under Section 488 for maintenance and if they make out a good claim to the satisfaction of the Court, I have nto the least doubt that suitable orders would be made in accordance with law.',
		'caseanalysis' => null,
		'casesref' => 'Kapur Singh v. Union of India;',
		'citingcases' => '',
		'counselplain' => ' O.P. Sharma, Adv',
		'counseldef' => ' Madan Bhatia, Adv.',
		'court' => 'Delhi',
		'court_type' => 'HC',
		'decidedon' => '1968-12-17',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' I.D. Dua, C.J.',
		'judgement' => '<p>1. In this application for a certificate of fitness for appeal to the Supreme Court from an order made on revision by this Court in proceedings under Section 488, Cr. P. C, a preliminary objection has been raised that Article 134(1)(c) of the Constitution is inapplicable because proceedings under Section 488 are civil proceedings and nto criminal proceedings. Reliance in support of this preliminary objection has been placed on a decision of the Supreme Court in Nand Lal Misra v. K.L. Misra, : 1960CriLJ1246 . Emphasis has been laid on the observations In this Judgment that Chapter xxxvi of the Code of Criminal Procedure is a self-contained one and the relief given under it is essentially of a civil nature. From this sentence, it is sought to be argued that the proceedings under section 488 are civil proceedings and nto criminal proceedings. Reliance has also been placed on a still more recent Judgment of the Supreme Court in Narayan Row v. Ishwar Lal, : [1965]57ITR149(SC) , in which while dealing with an appeal from an order made by the Bombay High Court under Article 226 of the Constitution, in a matter pertaining to recovery of income-tax, it was observed that the proceedings were civil proceedings within the meaning of Article 133(1)(c) of the Constitution. Reference has next been made to a Full Bench decision of the Punjab High Court in Kapur Singh v. Union of India, where also the question about the nature of proceedings under Articles 133 and 226 of the Constitution came up for discussion. In my opinion, none of these decisions throw helpful light on the question which the preliminary objection poses. Section 488 reads as under:</p><p>'488. Order for maintenance of wives and children.--(1) If any person having sufficient means neglects or refuses to maintain his wife or his legitimate or illegitimate child unable to maintain itself, the District Magistrate, a Presidency Magistrate, a Sub-Divisional Magistrate or 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, at such monthly rate, nto exceeding five hundred rupees in the whole, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate from time to time directs.</p><p> (2) Such allowance shall be payable from the date of the order, or if so ordered from the date of the application for maintenance.</p><p> (3) If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in manner hereinbefore provided for levying fines, and may sentence such person, for the whole or any part of each month's allowance remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made:</p><p> Provided that, if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if ho is satisfied that there is just ground for so doing.</p><p> If a husband has contracted marriage with another wife or keeps a mistress, it shall be considered to be just ground for his wife's refusal to live with him:</p><p> Provided, further that no warrant shall be issued for the recovery of any amount due under this direction unless application be made to the Court to levy such amount within a period of one year from the date on which it became due.</p><p> (4) No wife shall be entitled to receive an allowance from her husband under this section if she is living in adultery, or if, without any sufficient reason she refuses to live with her husband, or if they are living separately by mutual consent.</p><p> (5) On proof that any wife in whose favor an order has been made under this section is living in adultery, or that without sufficient reason she refuses to live with her husband, or that they are living separately by mutual consent, the Magistrate shall cancel the order.</p><p> (6) All evidence under this Chapter shall be taken in the presence of the husband or father, as the case may be, or, when his personal attendance is dispensed with, in the presence of his pleader, and shall be recorded in :he manner prescribed in the case of summons-cases:</p><p> Provided that if the Magistrate is satisfied that he is willfully avoiding service, or willfully neglects to attend the Court, the Magistrate may proceed to hear and determine the case ex parte. Any order so made may be set aside for good cause shown, on application made within three months from the date thereof.</p><p> (7) The Court in dealing with applications under this section shall have power to make such order as to costs as may be just.</p><p> (8) Proceedings under this section may be taken against any person in any district where he resides or is, or where he last resided with his wife or, as the case may be, the mother of the illegitimate child.' </p><p>It is obvious that it confers power to order maintenance, on District Magistrates, Presidency Magistrates, Sub-Divisional Magistrates and Magistrates of the 1st Class: Courts which are indisputably criminal Courts and nto civil Courts. Sub-section (6) provides that all evidence under this Chapter has to be taken in the presence of the husband or father, as the case may be, or when his personal attendance is dispensed with, in the presence of his pleader and it is to be recorded in the manner prescribed in the case of summons-cases. This is a further indication that the proceedings are criminal proceedings and nto civil proceedings. The argument that there is no penalty imposed by this section and the proceedings thereforee, cannto be described as 'criminal' is also unacceptable because according to Section 488(3), which provides for enforcement of orders, in certain circumstances, the person in default can be imprisoned for a term which may extend to one month or until payment, if sooner made, though I should nto be understood to hold this consideration to be conclusive on the point either way. It is obvious that the proceedings envisaged by Chapter xxxvi of the Code cannto be considered to be purely civil proceedings, though the person in default, against whom maintenance order is sought, may nto be an accused person whose examination without oath is mandatory as prescribed by Section 342 of the Code and he may be entitled to appear as a witness as well. I am aware of some conflict of judicial opinion in some old cases where on the ground that the procedure of trying maintenance applications being that of a summons case, failure to examine the person proceeded against under Section 342 of the Code, was held to vitiate the proceedings, but that conflict was set at rest by later decisions in which this section was held inapplicable to proceedings under S. 488. However, consistently all the Courts dealing with that question had assumed that the proceedings were criminal proceedings governed by the Code of Criminal Procedure, both in regard to the trial and the power of revision of the Court of the Sessions Judge and of the High Court.</p><p>2. Chapter 7-A of Vol. Iii of Rules and Orders of the Punjab High Court dealing with the maintenance cases also recites that proceedings under Section 488 of the Code of Criminal Procedure are of a criminal character and the provisions contained therein must, thereforee, be strictly followed. Keeping in view the scheme of Chapter xxxvi of the Code of Criminal Procedure and also the scheme of Articles 133 and 134 of the Constitution, I have little hesitation in holding that proceedings under Section 488, Cr. P. C., do fall within the contemplation of criminal proceedings within the meaning of Article 134. The expression 'criminal proceedings' in this Article, seems to me to be wide enough to include maintenance proceedings adjudicated upon by Magistrates initiated under Chapter xxxvI. Such maintenance proceedings are, in my view, criminal proceedings, designed by way of summary process to provide to deserted wives and neglected children, adjudication of their civil right of maintenance up to al limited amount, enforceable through criminal Courts, to avoid the notorious delays of civil proceedings, which may still be utilised for fuller relief under the general law in the ordinary civil Courts.</p><p>3. And then, what directly concerns this Court is the question of the nature of the proceedings on revision in this Court. These proceedings seem to me to be clearly criminal proceedings and I find no logical and rational basis for holding them to be civil proceedings so as to exclude the applicability of Article 134 of the Constitution. Nto only are they registered in this Court as criminal revisions but they are also presented in this Court under the Cr. P. C. and nto under the Civil P. C. The difference between the relative scope of a civil revision and of a criminal revision is well known and revision against an order under Section 488, Cr. P. C. has never been held to my knowledge to be a civil revision so as to exclude the applicability of Art. 134(1)(c) of the Constitution. The preliminary objection is, thereforee, nto easy to sustain.</p><p>4. Coming now to the merits, the learned counsel for the petitioner has very strongly argued that according to Section 488 of the Code, a separate order should have been made granting maintenance to the children. In my opinion, the question which concerns this Court in this present proceedings is nto so much as to what should have been done by the Magistrate while dealing with Section 488, Cr. P. C., but whether there is any such infirmity in the order of this Court as would justify a certificate of fitness within the contemplation of Article 134(1)(c) of the Constitution. It is nto argued, and it cannto be argued, that clause (a) or clause (b) of Article 134(1) covers this case. Clause (c) of this sub-article postulates a case in which a difficult question involving an unsettled principle requires to be finally determined by the Supreme Court. That does nto seem to be the case before me, and indeed no attempt has been made to show that there is any question of principle involved in the impugned order which requires authoritative decision by the Supreme Court. But this apart, the grant of maintenance in this case is a tentative order and it is always open to the authorities to ask for re-consideration and re-determination on account of change of circumstances. The children in these proceedings may, if they are so advised, even now apply to a competent Court under Section 488 for maintenance and if they make out a good claim to the satisfaction of the Court, I have nto the least doubt that suitable orders would be made in accordance with law. The revision on their behalf was held to be barred by time and this Court did nto consider it proper to exercise its suo motu power of revision in this regard. There is no decision on the merits against them by this Court and it has nto been shown that the impugned decision is based on any wrong principle of law which requires further examination by the Supreme Court.</p><p>5. For the foregoing reasons, this application fails and is dismissed.</p><p>6. Application dismissed.<p></p><p>',
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		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'AIR1969Delhi298; 1969CriLJ1243; ILR1968Delhi545',
		'ratiodecidendi' => '',
		'respondent' => 'Sant Singh',
		'sub' => 'Criminal;Constitution',
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$content = array(
	(int) 0 => '<p>1. In this application for a certificate of fitness for appeal to the Supreme Court from an order made on revision by this Court in proceedings under Section 488, Cr. P. C, a preliminary objection has been raised that Article 134(1)(c) of the Constitution is inapplicable because proceedings under Section 488 are civil proceedings and nto criminal proceedings. Reliance in support of this preliminary objection has been placed on a decision of the Supreme Court in Nand Lal Misra v. K.L. Misra, : 1960CriLJ1246 . Emphasis has been laid on the observations In this Judgment that Chapter xxxvi of the Code of Criminal Procedure is a self-contained one and the relief given under it is essentially of a civil nature. From this sentence, it is sought to be argued that the proceedings under section 488 are civil proceedings and nto criminal proceedings. Reliance has also been placed on a still more recent Judgment of the Supreme Court in Narayan Row v. Ishwar Lal, : [1965]57ITR149(SC) , in which while dealing with an appeal from an order made by the Bombay High Court under Article 226 of the Constitution, in a matter pertaining to recovery of income-tax, it was observed that the proceedings were civil proceedings within the meaning of Article 133(1)(c) of the Constitution. Reference has next been made to a Full Bench decision of the Punjab High Court in Kapur Singh v. Union of India, where also the question about the nature of proceedings under Articles 133 and 226 of the Constitution came up for discussion. In my opinion, none of these decisions throw helpful light on the question which the preliminary objection poses. Section 488 reads as under:',
	(int) 1 => '<p>'488. Order for maintenance of wives and children.--(1) If any person having sufficient means neglects or refuses to maintain his wife or his legitimate or illegitimate child unable to maintain itself, the District Magistrate, a Presidency Magistrate, a Sub-Divisional Magistrate or 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, at such monthly rate, nto exceeding five hundred rupees in the whole, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate from time to time directs.',
	(int) 2 => '<p> (2) Such allowance shall be payable from the date of the order, or if so ordered from the date of the application for maintenance.',
	(int) 3 => '<p> (3) If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in manner hereinbefore provided for levying fines, and may sentence such person, for the whole or any part of each month's allowance remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made:',
	(int) 4 => '<p> Provided that, if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if ho is satisfied that there is just ground for so doing.',
	(int) 5 => '<p> If a husband has contracted marriage with another wife or keeps a mistress, it shall be considered to be just ground for his wife's refusal to live with him:',
	(int) 6 => '<p> Provided, further that no warrant shall be issued for the recovery of any amount due under this direction unless application be made to the Court to levy such amount within a period of one year from the date on which it became due.',
	(int) 7 => '<p> (4) No wife shall be entitled to receive an allowance from her husband under this section if she is living in adultery, or if, without any sufficient reason she refuses to live with her husband, or if they are living separately by mutual consent.',
	(int) 8 => '<p> (5) On proof that any wife in whose favor an order has been made under this section is living in adultery, or that without sufficient reason she refuses to live with her husband, or that they are living separately by mutual consent, the Magistrate shall cancel the order.',
	(int) 9 => '<p> (6) All evidence under this Chapter shall be taken in the presence of the husband or father, as the case may be, or, when his personal attendance is dispensed with, in the presence of his pleader, and shall be recorded in :he manner prescribed in the case of summons-cases:',
	(int) 10 => '<p> Provided that if the Magistrate is satisfied that he is willfully avoiding service, or willfully neglects to attend the Court, the Magistrate may proceed to hear and determine the case ex parte. Any order so made may be set aside for good cause shown, on application made within three months from the date thereof.',
	(int) 11 => '<p> (7) The Court in dealing with applications under this section shall have power to make such order as to costs as may be just.',
	(int) 12 => '<p> (8) Proceedings under this section may be taken against any person in any district where he resides or is, or where he last resided with his wife or, as the case may be, the mother of the illegitimate child.' ',
	(int) 13 => '<p>It is obvious that it confers power to order maintenance, on District Magistrates, Presidency Magistrates, Sub-Divisional Magistrates and Magistrates of the 1st Class: Courts which are indisputably criminal Courts and nto civil Courts. Sub-section (6) provides that all evidence under this Chapter has to be taken in the presence of the husband or father, as the case may be, or when his personal attendance is dispensed with, in the presence of his pleader and it is to be recorded in the manner prescribed in the case of summons-cases. This is a further indication that the proceedings are criminal proceedings and nto civil proceedings. The argument that there is no penalty imposed by this section and the proceedings thereforee, cannto be described as 'criminal' is also unacceptable because according to Section 488(3), which provides for enforcement of orders, in certain circumstances, the person in default can be imprisoned for a term which may extend to one month or until payment, if sooner made, though I should nto be understood to hold this consideration to be conclusive on the point either way. It is obvious that the proceedings envisaged by Chapter xxxvi of the Code cannto be considered to be purely civil proceedings, though the person in default, against whom maintenance order is sought, may nto be an accused person whose examination without oath is mandatory as prescribed by Section 342 of the Code and he may be entitled to appear as a witness as well. I am aware of some conflict of judicial opinion in some old cases where on the ground that the procedure of trying maintenance applications being that of a summons case, failure to examine the person proceeded against under Section 342 of the Code, was held to vitiate the proceedings, but that conflict was set at rest by later decisions in which this section was held inapplicable to proceedings under S. 488. However, consistently all the Courts dealing with that question had assumed that the proceedings were criminal proceedings governed by the Code of Criminal Procedure, both in regard to the trial and the power of revision of the Court of the Sessions Judge and of the High Court.',
	(int) 14 => '<p>2. Chapter 7-A of Vol. Iii of Rules and Orders of the Punjab High Court dealing with the maintenance cases also recites that proceedings under Section 488 of the Code of Criminal Procedure are of a criminal character and the provisions contained therein must, thereforee, be strictly followed. Keeping in view the scheme of Chapter xxxvi of the Code of Criminal Procedure and also the scheme of Articles 133 and 134 of the Constitution, I have little hesitation in holding that proceedings under Section 488, Cr. P. C., do fall within the contemplation of criminal proceedings within the meaning of Article 134. The expression 'criminal proceedings' in this Article, seems to me to be wide enough to include maintenance proceedings adjudicated upon by Magistrates initiated under Chapter xxxvI. Such maintenance proceedings are, in my view, criminal proceedings, designed by way of summary process to provide to deserted wives and neglected children, adjudication of their civil right of maintenance up to al limited amount, enforceable through criminal Courts, to avoid the notorious delays of civil proceedings, which may still be utilised for fuller relief under the general law in the ordinary civil Courts.',
	(int) 15 => '<p>3. And then, what directly concerns this Court is the question of the nature of the proceedings on revision in this Court. These proceedings seem to me to be clearly criminal proceedings and I find no logical and rational basis for holding them to be civil proceedings so as to exclude the applicability of Article 134 of the Constitution. Nto only are they registered in this Court as criminal revisions but they are also presented in this Court under the Cr. P. C. and nto under the Civil P. C. The difference between the relative scope of a civil revision and of a criminal revision is well known and revision against an order under Section 488, Cr. P. C. has never been held to my knowledge to be a civil revision so as to exclude the applicability of Art. 134(1)(c) of the Constitution. The preliminary objection is, thereforee, nto easy to sustain.',
	(int) 16 => '<p>4. Coming now to the merits, the learned counsel for the petitioner has very strongly argued that according to Section 488 of the Code, a separate order should have been made granting maintenance to the children. In my opinion, the question which concerns this Court in this present proceedings is nto so much as to what should have been done by the Magistrate while dealing with Section 488, Cr. P. C., but whether there is any such infirmity in the order of this Court as would justify a certificate of fitness within the contemplation of Article 134(1)(c) of the Constitution. It is nto argued, and it cannto be argued, that clause (a) or clause (b) of Article 134(1) covers this case. Clause (c) of this sub-article postulates a case in which a difficult question involving an unsettled principle requires to be finally determined by the Supreme Court. That does nto seem to be the case before me, and indeed no attempt has been made to show that there is any question of principle involved in the impugned order which requires authoritative decision by the Supreme Court. But this apart, the grant of maintenance in this case is a tentative order and it is always open to the authorities to ask for re-consideration and re-determination on account of change of circumstances. The children in these proceedings may, if they are so advised, even now apply to a competent Court under Section 488 for maintenance and if they make out a good claim to the satisfaction of the Court, I have nto the least doubt that suitable orders would be made in accordance with law. The revision on their behalf was held to be barred by time and this Court did nto consider it proper to exercise its suo motu power of revision in this regard. There is no decision on the merits against them by this Court and it has nto been shown that the impugned decision is based on any wrong principle of law which requires further examination by the Supreme Court.',
	(int) 17 => '<p>5. For the foregoing reasons, this application fails and is dismissed.',
	(int) 18 => '<p>6. Application dismissed.<p>',
	(int) 19 => '<p>'
)
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If a husband has contracted marriage with another wife or keeps a mistress, it shall be considered to be just ground for his wife's refusal to live with him:

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	'title_for_layout' => 'Harbhajan Kaur Vs Sant Singh - Citation 681173 - Court Judgment | ',
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			'id' => '681173',
			'acts' => '<a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 133, 134, 134(1) and 226; <a href="/act/133280/code-of-criminal-procedure-1898-complete-act">Code of Criminal Procedure (CrPC) , 1898</a> - Sections 342, 488, 488(3) and 488(6)',
			'appealno' => 'Criminal Misc. (SCA) No. 855 of 1968',
			'appellant' => 'Harbhajan Kaur',
			'authreffered' => '',
			'casename' => 'Harbhajan Kaur Vs. Sant Singh',
			'casenote' => ' (i) 
Criminal Procedure Code (V of 1898)- Section 488--Proceedings under--nature of--are criminal proceedings and nto Civil proceedings.; The proceedings envisaged by  Chapter xxxvI of the Code cannto be considered 
purely civil proceedings, though the person in default, against whom maintenance order is sought, may nto be an accused person, whose examination without oath is mandatory as prescribed by section 342 of the Code and he may be entitled to appear as a witness as 
well.; Chapter 7-A of Vol. III of Rules and Orders of the Punjab High Court dealing with the maintenance cases also recites that proceedings under section 488 of the Code of Criminal Procedure are of criminal character and the provisions contained therein must, thereforee, be strictly followed.; (ii) Constitution of India - Article 134--Proceedings under Section 488 within the contemplation of--expression--'Criminal proceedings'--scope of.;  That the proceedings under Section 488 Cr. P.C. do fall within the contemplation of criminal proceedings within the meaning of Article 134. 
The expression 'Criminal Proceedings' in this Article is wide enough to include maintenance proceedings adjucated upon by Magistrate initiated under Chapter xxxvI. Such maintenance proceedings are criminal proceedings designed by way of summary process to provide to deserted wives and neglected children adjudication of their civil right of maintenance up to a limited amount enforceable through criminal courts, to avoid the notorious delays of civil proceedings, which may still be utilised for fuller relief under the general law 
in the ordinary civil courts. - Section 13: [Altamas Kabir & Cyriac Joseph,JJ] Custody of child - Welfare of child vis--vis comity of Courts - The minor girl child of 3 1/2 years was brought to India by her mother. The minor girl was a citizen of U.K. being born in U.K. her parents had set up their matrimonial home in U.K. and had acquired status of permanent residents of U.K. The child with her mother was supposed to return to U.K. but the mother cancelled her tickets and remained behind in India. The husband thereupon started procededings before the High Court of Justice, Family Division. U.K. praying for an order that the minor child be made a ward of the Court and for a direction upon the wife to return the minor child to the jurisdiction of the said Court. A further direction was given for the passport and other international travel documents of the minor child to be handed over to the Solicitors of the husband. A petition seeking protection of minor child was thereupon filed by father of the husband before Delhi High Court. A direction for handing over custody of child to father of husband was also sought. The High Court considering fact that the U.K. court was already in seisin of  matter and had passed an interim order and by relying on principle of comity of Nations and Comity of Judgments of the courts of two different countries in deciding the matter directed the wife to take the child of her own to U.K.or hand it over to father of husband to be taken to U.K. as measure of interim custody and that it would be for the U.K. Court to decide the question of custody  -  Order was challenged by wife -  Held, the order of High Court was not liable to be interfered with. Although, on first impression, it would appear that the interests of the minor child would best be served if she is allowed to remain with the wife, the order of U.K. court cannot be lost sight of., The order of U.K. Court except for insisiting that the minor be returned to its jurisdiction, the English Court did not intend to separate the child from the mother until a final decision was taken with regard to the custody of the child. The ultimate decision in that regard has to be left to the English Court having regard to the nationality of the child and the fact that both the parents had worked for gain in the U.K. and had also acquired permanent resident status in the U.K. English Court has not directed that the custody of the child should be handed over to  the father but that the child should be returned to the jurisdiction of the Courts in the U.K. which would then proceed to determine as to who would be best suited to have the custody of the child. The High Court has taken into consideration both the questions relating to the Comity of Courts as well as the interest of the minor child, which, no doubt, is one of the most important considerations in matters relating to custody of a minor child.  -  Provided that, if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if ho is satisfied that there is just ground for so doing. Provided that if the Magistrate is satisfied that he is willfully avoiding service, or willfully neglects to attend the Court, the Magistrate may proceed to hear and determine the case ex parte. Any order so made may be set aside for good cause shown, on application made within three months from the date thereof. It is obvious that the proceedings envisaged by Chapter xxxvi of the Code cannto be considered to be purely civil proceedings, though the person in default, against whom maintenance order is sought, may nto be an accused person whose examination without oath is mandatory as prescribed by Section 342 of the Code and he may be entitled to appear as a witness as well. I am aware of some conflict of judicial opinion in some old cases where on the ground that the procedure of trying maintenance applications being that of a summons case, failure to examine the person proceeded against under Section 342 of the Code, was held to vitiate the proceedings, but that conflict was set at rest by later decisions in which this section was held inapplicable to proceedings under S. These proceedings seem to me to be clearly criminal proceedings and I find no logical and rational basis for holding them to be civil proceedings so as to exclude the applicability of Article 134 of the Constitution. The difference between the relative scope of a civil revision and of a criminal revision is well known and revision against an order under Section 488, Cr. The children in these proceedings may, if they are so advised, even now apply to a competent Court under Section 488 for maintenance and if they make out a good claim to the satisfaction of the Court, I have nto the least doubt that suitable orders would be made in accordance with law.',
			'caseanalysis' => null,
			'casesref' => 'Kapur Singh v. Union of India;',
			'citingcases' => '',
			'counselplain' => ' O.P. Sharma, Adv',
			'counseldef' => ' Madan Bhatia, Adv.',
			'court' => 'Delhi',
			'court_type' => 'HC',
			'decidedon' => '1968-12-17',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' I.D. Dua, C.J.',
			'judgement' => '<p style="text-align: justify;">1. In this application for a certificate of fitness for appeal to the Supreme Court from an order made on revision by this Court in proceedings under Section 488, Cr. P. C, a preliminary objection has been raised that Article 134(1)(c) of the Constitution is inapplicable because proceedings under Section 488 are civil proceedings and nto criminal proceedings. Reliance in support of this preliminary objection has been placed on a decision of the Supreme Court in Nand Lal Misra v. K.L. Misra, : 1960CriLJ1246 . Emphasis has been laid on the observations In this Judgment that Chapter xxxvi of the Code of Criminal Procedure is a self-contained one and the relief given under it is essentially of a civil nature. From this sentence, it is sought to be argued that the proceedings under section 488 are civil proceedings and nto criminal proceedings. Reliance has also been placed on a still more recent Judgment of the Supreme Court in Narayan Row v. Ishwar Lal, : [1965]57ITR149(SC) , in which while dealing with an appeal from an order made by the Bombay High Court under Article 226 of the Constitution, in a matter pertaining to recovery of income-tax, it was observed that the proceedings were civil proceedings within the meaning of Article 133(1)(c) of the Constitution. Reference has next been made to a Full Bench decision of the Punjab High Court in Kapur Singh v. Union of India, where also the question about the nature of proceedings under Articles 133 and 226 of the Constitution came up for discussion. In my opinion, none of these decisions throw helpful light on the question which the preliminary objection poses. Section 488 reads as under:</p><p style="text-align: justify;">'488. Order for maintenance of wives and children.--(1) If any person having sufficient means neglects or refuses to maintain his wife or his legitimate or illegitimate child unable to maintain itself, the District Magistrate, a Presidency Magistrate, a Sub-Divisional Magistrate or 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, at such monthly rate, nto exceeding five hundred rupees in the whole, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate from time to time directs.</p><p style="text-align: justify;"> (2) Such allowance shall be payable from the date of the order, or if so ordered from the date of the application for maintenance.</p><p style="text-align: justify;"> (3) If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in manner hereinbefore provided for levying fines, and may sentence such person, for the whole or any part of each month's allowance remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made:</p><p style="text-align: justify;"> Provided that, if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if ho is satisfied that there is just ground for so doing.</p><p style="text-align: justify;"> If a husband has contracted marriage with another wife or keeps a mistress, it shall be considered to be just ground for his wife's refusal to live with him:</p><p style="text-align: justify;"> Provided, further that no warrant shall be issued for the recovery of any amount due under this direction unless application be made to the Court to levy such amount within a period of one year from the date on which it became due.</p><p style="text-align: justify;"> (4) No wife shall be entitled to receive an allowance from her husband under this section if she is living in adultery, or if, without any sufficient reason she refuses to live with her husband, or if they are living separately by mutual consent.</p><p style="text-align: justify;"> (5) On proof that any wife in whose favor an order has been made under this section is living in adultery, or that without sufficient reason she refuses to live with her husband, or that they are living separately by mutual consent, the Magistrate shall cancel the order.</p><p style="text-align: justify;"> (6) All evidence under this Chapter shall be taken in the presence of the husband or father, as the case may be, or, when his personal attendance is dispensed with, in the presence of his pleader, and shall be recorded in :he manner prescribed in the case of summons-cases:</p><p style="text-align: justify;"> Provided that if the Magistrate is satisfied that he is willfully avoiding service, or willfully neglects to attend the Court, the Magistrate may proceed to hear and determine the case ex parte. Any order so made may be set aside for good cause shown, on application made within three months from the date thereof.</p><p style="text-align: justify;"> (7) The Court in dealing with applications under this section shall have power to make such order as to costs as may be just.</p><p style="text-align: justify;"> (8) Proceedings under this section may be taken against any person in any district where he resides or is, or where he last resided with his wife or, as the case may be, the mother of the illegitimate child.' </p><p style="text-align: justify;">It is obvious that it confers power to order maintenance, on District Magistrates, Presidency Magistrates, Sub-Divisional Magistrates and Magistrates of the 1st Class: Courts which are indisputably criminal Courts and nto civil Courts. Sub-section (6) provides that all evidence under this Chapter has to be taken in the presence of the husband or father, as the case may be, or when his personal attendance is dispensed with, in the presence of his pleader and it is to be recorded in the manner prescribed in the case of summons-cases. This is a further indication that the proceedings are criminal proceedings and nto civil proceedings. The argument that there is no penalty imposed by this section and the proceedings thereforee, cannto be described as 'criminal' is also unacceptable because according to Section 488(3), which provides for enforcement of orders, in certain circumstances, the person in default can be imprisoned for a term which may extend to one month or until payment, if sooner made, though I should nto be understood to hold this consideration to be conclusive on the point either way. It is obvious that the proceedings envisaged by Chapter xxxvi of the Code cannto be considered to be purely civil proceedings, though the person in default, against whom maintenance order is sought, may nto be an accused person whose examination without oath is mandatory as prescribed by Section 342 of the Code and he may be entitled to appear as a witness as well. I am aware of some conflict of judicial opinion in some old cases where on the ground that the procedure of trying maintenance applications being that of a summons case, failure to examine the person proceeded against under Section 342 of the Code, was held to vitiate the proceedings, but that conflict was set at rest by later decisions in which this section was held inapplicable to proceedings under S. 488. However, consistently all the Courts dealing with that question had assumed that the proceedings were criminal proceedings governed by the Code of Criminal Procedure, both in regard to the trial and the power of revision of the Court of the Sessions Judge and of the High Court.</p><p style="text-align: justify;">2. Chapter 7-A of Vol. Iii of Rules and Orders of the Punjab High Court dealing with the maintenance cases also recites that proceedings under Section 488 of the Code of Criminal Procedure are of a criminal character and the provisions contained therein must, thereforee, be strictly followed. Keeping in view the scheme of Chapter xxxvi of the Code of Criminal Procedure and also the scheme of Articles 133 and 134 of the Constitution, I have little hesitation in holding that proceedings under Section 488, Cr. P. C., do fall within the contemplation of criminal proceedings within the meaning of Article 134. The expression 'criminal proceedings' in this Article, seems to me to be wide enough to include maintenance proceedings adjudicated upon by Magistrates initiated under Chapter xxxvI. Such maintenance proceedings are, in my view, criminal proceedings, designed by way of summary process to provide to deserted wives and neglected children, adjudication of their civil right of maintenance up to al limited amount, enforceable through criminal Courts, to avoid the notorious delays of civil proceedings, which may still be utilised for fuller relief under the general law in the ordinary civil Courts.</p><p style="text-align: justify;">3. And then, what directly concerns this Court is the question of the nature of the proceedings on revision in this Court. These proceedings seem to me to be clearly criminal proceedings and I find no logical and rational basis for holding them to be civil proceedings so as to exclude the applicability of Article 134 of the Constitution. Nto only are they registered in this Court as criminal revisions but they are also presented in this Court under the Cr. P. C. and nto under the Civil P. C. The difference between the relative scope of a civil revision and of a criminal revision is well known and revision against an order under Section 488, Cr. P. C. has never been held to my knowledge to be a civil revision so as to exclude the applicability of Art. 134(1)(c) of the Constitution. The preliminary objection is, thereforee, nto easy to sustain.</p><p style="text-align: justify;">4. Coming now to the merits, the learned counsel for the petitioner has very strongly argued that according to Section 488 of the Code, a separate order should have been made granting maintenance to the children. In my opinion, the question which concerns this Court in this present proceedings is nto so much as to what should have been done by the Magistrate while dealing with Section 488, Cr. P. C., but whether there is any such infirmity in the order of this Court as would justify a certificate of fitness within the contemplation of Article 134(1)(c) of the Constitution. It is nto argued, and it cannto be argued, that clause (a) or clause (b) of Article 134(1) covers this case. Clause (c) of this sub-article postulates a case in which a difficult question involving an unsettled principle requires to be finally determined by the Supreme Court. That does nto seem to be the case before me, and indeed no attempt has been made to show that there is any question of principle involved in the impugned order which requires authoritative decision by the Supreme Court. But this apart, the grant of maintenance in this case is a tentative order and it is always open to the authorities to ask for re-consideration and re-determination on account of change of circumstances. The children in these proceedings may, if they are so advised, even now apply to a competent Court under Section 488 for maintenance and if they make out a good claim to the satisfaction of the Court, I have nto the least doubt that suitable orders would be made in accordance with law. The revision on their behalf was held to be barred by time and this Court did nto consider it proper to exercise its suo motu power of revision in this regard. There is no decision on the merits against them by this Court and it has nto been shown that the impugned decision is based on any wrong principle of law which requires further examination by the Supreme Court.</p><p style="text-align: justify;">5. For the foregoing reasons, this application fails and is dismissed.</p><p style="text-align: justify;">6. Application dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => 'AIR1969Delhi298; 1969CriLJ1243; ILR1968Delhi545',
			'ratiodecidendi' => '',
			'respondent' => 'Sant Singh',
			'sub' => 'Criminal;Constitution',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'harbhajan-kaur-vs-sant-singh',
	'args' => array(
		(int) 0 => '681173',
		(int) 1 => 'harbhajan-kaur-vs-sant-singh'
	)
)
$title_for_layout = 'Harbhajan Kaur Vs Sant Singh - Citation 681173 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '681173',
		'acts' => '<a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 133, 134, 134(1) and 226; <a href="/act/133280/code-of-criminal-procedure-1898-complete-act">Code of Criminal Procedure (CrPC) , 1898</a> - Sections 342, 488, 488(3) and 488(6)',
		'appealno' => 'Criminal Misc. (SCA) No. 855 of 1968',
		'appellant' => 'Harbhajan Kaur',
		'authreffered' => '',
		'casename' => 'Harbhajan Kaur Vs. Sant Singh',
		'casenote' => ' (i) 
Criminal Procedure Code (V of 1898)- Section 488--Proceedings under--nature of--are criminal proceedings and nto Civil proceedings.; The proceedings envisaged by  Chapter xxxvI of the Code cannto be considered 
purely civil proceedings, though the person in default, against whom maintenance order is sought, may nto be an accused person, whose examination without oath is mandatory as prescribed by section 342 of the Code and he may be entitled to appear as a witness as 
well.; Chapter 7-A of Vol. III of Rules and Orders of the Punjab High Court dealing with the maintenance cases also recites that proceedings under section 488 of the Code of Criminal Procedure are of criminal character and the provisions contained therein must, thereforee, be strictly followed.; (ii) Constitution of India - Article 134--Proceedings under Section 488 within the contemplation of--expression--'Criminal proceedings'--scope of.;  That the proceedings under Section 488 Cr. P.C. do fall within the contemplation of criminal proceedings within the meaning of Article 134. 
The expression 'Criminal Proceedings' in this Article is wide enough to include maintenance proceedings adjucated upon by Magistrate initiated under Chapter xxxvI. Such maintenance proceedings are criminal proceedings designed by way of summary process to provide to deserted wives and neglected children adjudication of their civil right of maintenance up to a limited amount enforceable through criminal courts, to avoid the notorious delays of civil proceedings, which may still be utilised for fuller relief under the general law 
in the ordinary civil courts. - Section 13: [Altamas Kabir & Cyriac Joseph,JJ] Custody of child - Welfare of child vis--vis comity of Courts - The minor girl child of 3 1/2 years was brought to India by her mother. The minor girl was a citizen of U.K. being born in U.K. her parents had set up their matrimonial home in U.K. and had acquired status of permanent residents of U.K. The child with her mother was supposed to return to U.K. but the mother cancelled her tickets and remained behind in India. The husband thereupon started procededings before the High Court of Justice, Family Division. U.K. praying for an order that the minor child be made a ward of the Court and for a direction upon the wife to return the minor child to the jurisdiction of the said Court. A further direction was given for the passport and other international travel documents of the minor child to be handed over to the Solicitors of the husband. A petition seeking protection of minor child was thereupon filed by father of the husband before Delhi High Court. A direction for handing over custody of child to father of husband was also sought. The High Court considering fact that the U.K. court was already in seisin of  matter and had passed an interim order and by relying on principle of comity of Nations and Comity of Judgments of the courts of two different countries in deciding the matter directed the wife to take the child of her own to U.K.or hand it over to father of husband to be taken to U.K. as measure of interim custody and that it would be for the U.K. Court to decide the question of custody  -  Order was challenged by wife -  Held, the order of High Court was not liable to be interfered with. Although, on first impression, it would appear that the interests of the minor child would best be served if she is allowed to remain with the wife, the order of U.K. court cannot be lost sight of., The order of U.K. Court except for insisiting that the minor be returned to its jurisdiction, the English Court did not intend to separate the child from the mother until a final decision was taken with regard to the custody of the child. The ultimate decision in that regard has to be left to the English Court having regard to the nationality of the child and the fact that both the parents had worked for gain in the U.K. and had also acquired permanent resident status in the U.K. English Court has not directed that the custody of the child should be handed over to  the father but that the child should be returned to the jurisdiction of the Courts in the U.K. which would then proceed to determine as to who would be best suited to have the custody of the child. The High Court has taken into consideration both the questions relating to the Comity of Courts as well as the interest of the minor child, which, no doubt, is one of the most important considerations in matters relating to custody of a minor child.  -  Provided that, if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if ho is satisfied that there is just ground for so doing. Provided that if the Magistrate is satisfied that he is willfully avoiding service, or willfully neglects to attend the Court, the Magistrate may proceed to hear and determine the case ex parte. Any order so made may be set aside for good cause shown, on application made within three months from the date thereof. It is obvious that the proceedings envisaged by Chapter xxxvi of the Code cannto be considered to be purely civil proceedings, though the person in default, against whom maintenance order is sought, may nto be an accused person whose examination without oath is mandatory as prescribed by Section 342 of the Code and he may be entitled to appear as a witness as well. I am aware of some conflict of judicial opinion in some old cases where on the ground that the procedure of trying maintenance applications being that of a summons case, failure to examine the person proceeded against under Section 342 of the Code, was held to vitiate the proceedings, but that conflict was set at rest by later decisions in which this section was held inapplicable to proceedings under S. These proceedings seem to me to be clearly criminal proceedings and I find no logical and rational basis for holding them to be civil proceedings so as to exclude the applicability of Article 134 of the Constitution. The difference between the relative scope of a civil revision and of a criminal revision is well known and revision against an order under Section 488, Cr. The children in these proceedings may, if they are so advised, even now apply to a competent Court under Section 488 for maintenance and if they make out a good claim to the satisfaction of the Court, I have nto the least doubt that suitable orders would be made in accordance with law.',
		'caseanalysis' => null,
		'casesref' => 'Kapur Singh v. Union of India;',
		'citingcases' => '',
		'counselplain' => ' O.P. Sharma, Adv',
		'counseldef' => ' Madan Bhatia, Adv.',
		'court' => 'Delhi',
		'court_type' => 'HC',
		'decidedon' => '1968-12-17',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' I.D. Dua, C.J.',
		'judgement' => '<p>1. In this application for a certificate of fitness for appeal to the Supreme Court from an order made on revision by this Court in proceedings under Section 488, Cr. P. C, a preliminary objection has been raised that Article 134(1)(c) of the Constitution is inapplicable because proceedings under Section 488 are civil proceedings and nto criminal proceedings. Reliance in support of this preliminary objection has been placed on a decision of the Supreme Court in Nand Lal Misra v. K.L. Misra, : 1960CriLJ1246 . Emphasis has been laid on the observations In this Judgment that Chapter xxxvi of the Code of Criminal Procedure is a self-contained one and the relief given under it is essentially of a civil nature. From this sentence, it is sought to be argued that the proceedings under section 488 are civil proceedings and nto criminal proceedings. Reliance has also been placed on a still more recent Judgment of the Supreme Court in Narayan Row v. Ishwar Lal, : [1965]57ITR149(SC) , in which while dealing with an appeal from an order made by the Bombay High Court under Article 226 of the Constitution, in a matter pertaining to recovery of income-tax, it was observed that the proceedings were civil proceedings within the meaning of Article 133(1)(c) of the Constitution. Reference has next been made to a Full Bench decision of the Punjab High Court in Kapur Singh v. Union of India, where also the question about the nature of proceedings under Articles 133 and 226 of the Constitution came up for discussion. In my opinion, none of these decisions throw helpful light on the question which the preliminary objection poses. Section 488 reads as under:</p><p>'488. Order for maintenance of wives and children.--(1) If any person having sufficient means neglects or refuses to maintain his wife or his legitimate or illegitimate child unable to maintain itself, the District Magistrate, a Presidency Magistrate, a Sub-Divisional Magistrate or 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, at such monthly rate, nto exceeding five hundred rupees in the whole, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate from time to time directs.</p><p> (2) Such allowance shall be payable from the date of the order, or if so ordered from the date of the application for maintenance.</p><p> (3) If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in manner hereinbefore provided for levying fines, and may sentence such person, for the whole or any part of each month's allowance remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made:</p><p> Provided that, if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if ho is satisfied that there is just ground for so doing.</p><p> If a husband has contracted marriage with another wife or keeps a mistress, it shall be considered to be just ground for his wife's refusal to live with him:</p><p> Provided, further that no warrant shall be issued for the recovery of any amount due under this direction unless application be made to the Court to levy such amount within a period of one year from the date on which it became due.</p><p> (4) No wife shall be entitled to receive an allowance from her husband under this section if she is living in adultery, or if, without any sufficient reason she refuses to live with her husband, or if they are living separately by mutual consent.</p><p> (5) On proof that any wife in whose favor an order has been made under this section is living in adultery, or that without sufficient reason she refuses to live with her husband, or that they are living separately by mutual consent, the Magistrate shall cancel the order.</p><p> (6) All evidence under this Chapter shall be taken in the presence of the husband or father, as the case may be, or, when his personal attendance is dispensed with, in the presence of his pleader, and shall be recorded in :he manner prescribed in the case of summons-cases:</p><p> Provided that if the Magistrate is satisfied that he is willfully avoiding service, or willfully neglects to attend the Court, the Magistrate may proceed to hear and determine the case ex parte. Any order so made may be set aside for good cause shown, on application made within three months from the date thereof.</p><p> (7) The Court in dealing with applications under this section shall have power to make such order as to costs as may be just.</p><p> (8) Proceedings under this section may be taken against any person in any district where he resides or is, or where he last resided with his wife or, as the case may be, the mother of the illegitimate child.' </p><p>It is obvious that it confers power to order maintenance, on District Magistrates, Presidency Magistrates, Sub-Divisional Magistrates and Magistrates of the 1st Class: Courts which are indisputably criminal Courts and nto civil Courts. Sub-section (6) provides that all evidence under this Chapter has to be taken in the presence of the husband or father, as the case may be, or when his personal attendance is dispensed with, in the presence of his pleader and it is to be recorded in the manner prescribed in the case of summons-cases. This is a further indication that the proceedings are criminal proceedings and nto civil proceedings. The argument that there is no penalty imposed by this section and the proceedings thereforee, cannto be described as 'criminal' is also unacceptable because according to Section 488(3), which provides for enforcement of orders, in certain circumstances, the person in default can be imprisoned for a term which may extend to one month or until payment, if sooner made, though I should nto be understood to hold this consideration to be conclusive on the point either way. It is obvious that the proceedings envisaged by Chapter xxxvi of the Code cannto be considered to be purely civil proceedings, though the person in default, against whom maintenance order is sought, may nto be an accused person whose examination without oath is mandatory as prescribed by Section 342 of the Code and he may be entitled to appear as a witness as well. I am aware of some conflict of judicial opinion in some old cases where on the ground that the procedure of trying maintenance applications being that of a summons case, failure to examine the person proceeded against under Section 342 of the Code, was held to vitiate the proceedings, but that conflict was set at rest by later decisions in which this section was held inapplicable to proceedings under S. 488. However, consistently all the Courts dealing with that question had assumed that the proceedings were criminal proceedings governed by the Code of Criminal Procedure, both in regard to the trial and the power of revision of the Court of the Sessions Judge and of the High Court.</p><p>2. Chapter 7-A of Vol. Iii of Rules and Orders of the Punjab High Court dealing with the maintenance cases also recites that proceedings under Section 488 of the Code of Criminal Procedure are of a criminal character and the provisions contained therein must, thereforee, be strictly followed. Keeping in view the scheme of Chapter xxxvi of the Code of Criminal Procedure and also the scheme of Articles 133 and 134 of the Constitution, I have little hesitation in holding that proceedings under Section 488, Cr. P. C., do fall within the contemplation of criminal proceedings within the meaning of Article 134. The expression 'criminal proceedings' in this Article, seems to me to be wide enough to include maintenance proceedings adjudicated upon by Magistrates initiated under Chapter xxxvI. Such maintenance proceedings are, in my view, criminal proceedings, designed by way of summary process to provide to deserted wives and neglected children, adjudication of their civil right of maintenance up to al limited amount, enforceable through criminal Courts, to avoid the notorious delays of civil proceedings, which may still be utilised for fuller relief under the general law in the ordinary civil Courts.</p><p>3. And then, what directly concerns this Court is the question of the nature of the proceedings on revision in this Court. These proceedings seem to me to be clearly criminal proceedings and I find no logical and rational basis for holding them to be civil proceedings so as to exclude the applicability of Article 134 of the Constitution. Nto only are they registered in this Court as criminal revisions but they are also presented in this Court under the Cr. P. C. and nto under the Civil P. C. The difference between the relative scope of a civil revision and of a criminal revision is well known and revision against an order under Section 488, Cr. P. C. has never been held to my knowledge to be a civil revision so as to exclude the applicability of Art. 134(1)(c) of the Constitution. The preliminary objection is, thereforee, nto easy to sustain.</p><p>4. Coming now to the merits, the learned counsel for the petitioner has very strongly argued that according to Section 488 of the Code, a separate order should have been made granting maintenance to the children. In my opinion, the question which concerns this Court in this present proceedings is nto so much as to what should have been done by the Magistrate while dealing with Section 488, Cr. P. C., but whether there is any such infirmity in the order of this Court as would justify a certificate of fitness within the contemplation of Article 134(1)(c) of the Constitution. It is nto argued, and it cannto be argued, that clause (a) or clause (b) of Article 134(1) covers this case. Clause (c) of this sub-article postulates a case in which a difficult question involving an unsettled principle requires to be finally determined by the Supreme Court. That does nto seem to be the case before me, and indeed no attempt has been made to show that there is any question of principle involved in the impugned order which requires authoritative decision by the Supreme Court. But this apart, the grant of maintenance in this case is a tentative order and it is always open to the authorities to ask for re-consideration and re-determination on account of change of circumstances. The children in these proceedings may, if they are so advised, even now apply to a competent Court under Section 488 for maintenance and if they make out a good claim to the satisfaction of the Court, I have nto the least doubt that suitable orders would be made in accordance with law. The revision on their behalf was held to be barred by time and this Court did nto consider it proper to exercise its suo motu power of revision in this regard. There is no decision on the merits against them by this Court and it has nto been shown that the impugned decision is based on any wrong principle of law which requires further examination by the Supreme Court.</p><p>5. For the foregoing reasons, this application fails and is dismissed.</p><p>6. Application dismissed.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'AIR1969Delhi298; 1969CriLJ1243; ILR1968Delhi545',
		'ratiodecidendi' => '',
		'respondent' => 'Sant Singh',
		'sub' => 'Criminal;Constitution',
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		'circuit' => null
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	(int) 0 => '<p>1. In this application for a certificate of fitness for appeal to the Supreme Court from an order made on revision by this Court in proceedings under Section 488, Cr. P. C, a preliminary objection has been raised that Article 134(1)(c) of the Constitution is inapplicable because proceedings under Section 488 are civil proceedings and nto criminal proceedings. Reliance in support of this preliminary objection has been placed on a decision of the Supreme Court in Nand Lal Misra v. K.L. Misra, : 1960CriLJ1246 . Emphasis has been laid on the observations In this Judgment that Chapter xxxvi of the Code of Criminal Procedure is a self-contained one and the relief given under it is essentially of a civil nature. From this sentence, it is sought to be argued that the proceedings under section 488 are civil proceedings and nto criminal proceedings. Reliance has also been placed on a still more recent Judgment of the Supreme Court in Narayan Row v. Ishwar Lal, : [1965]57ITR149(SC) , in which while dealing with an appeal from an order made by the Bombay High Court under Article 226 of the Constitution, in a matter pertaining to recovery of income-tax, it was observed that the proceedings were civil proceedings within the meaning of Article 133(1)(c) of the Constitution. Reference has next been made to a Full Bench decision of the Punjab High Court in Kapur Singh v. Union of India, where also the question about the nature of proceedings under Articles 133 and 226 of the Constitution came up for discussion. In my opinion, none of these decisions throw helpful light on the question which the preliminary objection poses. Section 488 reads as under:',
	(int) 1 => '<p>'488. Order for maintenance of wives and children.--(1) If any person having sufficient means neglects or refuses to maintain his wife or his legitimate or illegitimate child unable to maintain itself, the District Magistrate, a Presidency Magistrate, a Sub-Divisional Magistrate or 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, at such monthly rate, nto exceeding five hundred rupees in the whole, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate from time to time directs.',
	(int) 2 => '<p> (2) Such allowance shall be payable from the date of the order, or if so ordered from the date of the application for maintenance.',
	(int) 3 => '<p> (3) If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in manner hereinbefore provided for levying fines, and may sentence such person, for the whole or any part of each month's allowance remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made:',
	(int) 4 => '<p> Provided that, if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if ho is satisfied that there is just ground for so doing.',
	(int) 5 => '<p> If a husband has contracted marriage with another wife or keeps a mistress, it shall be considered to be just ground for his wife's refusal to live with him:',
	(int) 6 => '<p> Provided, further that no warrant shall be issued for the recovery of any amount due under this direction unless application be made to the Court to levy such amount within a period of one year from the date on which it became due.',
	(int) 7 => '<p> (4) No wife shall be entitled to receive an allowance from her husband under this section if she is living in adultery, or if, without any sufficient reason she refuses to live with her husband, or if they are living separately by mutual consent.',
	(int) 8 => '<p> (5) On proof that any wife in whose favor an order has been made under this section is living in adultery, or that without sufficient reason she refuses to live with her husband, or that they are living separately by mutual consent, the Magistrate shall cancel the order.',
	(int) 9 => '<p> (6) All evidence under this Chapter shall be taken in the presence of the husband or father, as the case may be, or, when his personal attendance is dispensed with, in the presence of his pleader, and shall be recorded in :he manner prescribed in the case of summons-cases:',
	(int) 10 => '<p> Provided that if the Magistrate is satisfied that he is willfully avoiding service, or willfully neglects to attend the Court, the Magistrate may proceed to hear and determine the case ex parte. Any order so made may be set aside for good cause shown, on application made within three months from the date thereof.',
	(int) 11 => '<p> (7) The Court in dealing with applications under this section shall have power to make such order as to costs as may be just.',
	(int) 12 => '<p> (8) Proceedings under this section may be taken against any person in any district where he resides or is, or where he last resided with his wife or, as the case may be, the mother of the illegitimate child.' ',
	(int) 13 => '<p>It is obvious that it confers power to order maintenance, on District Magistrates, Presidency Magistrates, Sub-Divisional Magistrates and Magistrates of the 1st Class: Courts which are indisputably criminal Courts and nto civil Courts. Sub-section (6) provides that all evidence under this Chapter has to be taken in the presence of the husband or father, as the case may be, or when his personal attendance is dispensed with, in the presence of his pleader and it is to be recorded in the manner prescribed in the case of summons-cases. This is a further indication that the proceedings are criminal proceedings and nto civil proceedings. The argument that there is no penalty imposed by this section and the proceedings thereforee, cannto be described as 'criminal' is also unacceptable because according to Section 488(3), which provides for enforcement of orders, in certain circumstances, the person in default can be imprisoned for a term which may extend to one month or until payment, if sooner made, though I should nto be understood to hold this consideration to be conclusive on the point either way. It is obvious that the proceedings envisaged by Chapter xxxvi of the Code cannto be considered to be purely civil proceedings, though the person in default, against whom maintenance order is sought, may nto be an accused person whose examination without oath is mandatory as prescribed by Section 342 of the Code and he may be entitled to appear as a witness as well. I am aware of some conflict of judicial opinion in some old cases where on the ground that the procedure of trying maintenance applications being that of a summons case, failure to examine the person proceeded against under Section 342 of the Code, was held to vitiate the proceedings, but that conflict was set at rest by later decisions in which this section was held inapplicable to proceedings under S. 488. However, consistently all the Courts dealing with that question had assumed that the proceedings were criminal proceedings governed by the Code of Criminal Procedure, both in regard to the trial and the power of revision of the Court of the Sessions Judge and of the High Court.',
	(int) 14 => '<p>2. Chapter 7-A of Vol. Iii of Rules and Orders of the Punjab High Court dealing with the maintenance cases also recites that proceedings under Section 488 of the Code of Criminal Procedure are of a criminal character and the provisions contained therein must, thereforee, be strictly followed. Keeping in view the scheme of Chapter xxxvi of the Code of Criminal Procedure and also the scheme of Articles 133 and 134 of the Constitution, I have little hesitation in holding that proceedings under Section 488, Cr. P. C., do fall within the contemplation of criminal proceedings within the meaning of Article 134. The expression 'criminal proceedings' in this Article, seems to me to be wide enough to include maintenance proceedings adjudicated upon by Magistrates initiated under Chapter xxxvI. Such maintenance proceedings are, in my view, criminal proceedings, designed by way of summary process to provide to deserted wives and neglected children, adjudication of their civil right of maintenance up to al limited amount, enforceable through criminal Courts, to avoid the notorious delays of civil proceedings, which may still be utilised for fuller relief under the general law in the ordinary civil Courts.',
	(int) 15 => '<p>3. And then, what directly concerns this Court is the question of the nature of the proceedings on revision in this Court. These proceedings seem to me to be clearly criminal proceedings and I find no logical and rational basis for holding them to be civil proceedings so as to exclude the applicability of Article 134 of the Constitution. Nto only are they registered in this Court as criminal revisions but they are also presented in this Court under the Cr. P. C. and nto under the Civil P. C. The difference between the relative scope of a civil revision and of a criminal revision is well known and revision against an order under Section 488, Cr. P. C. has never been held to my knowledge to be a civil revision so as to exclude the applicability of Art. 134(1)(c) of the Constitution. The preliminary objection is, thereforee, nto easy to sustain.',
	(int) 16 => '<p>4. Coming now to the merits, the learned counsel for the petitioner has very strongly argued that according to Section 488 of the Code, a separate order should have been made granting maintenance to the children. In my opinion, the question which concerns this Court in this present proceedings is nto so much as to what should have been done by the Magistrate while dealing with Section 488, Cr. P. C., but whether there is any such infirmity in the order of this Court as would justify a certificate of fitness within the contemplation of Article 134(1)(c) of the Constitution. It is nto argued, and it cannto be argued, that clause (a) or clause (b) of Article 134(1) covers this case. Clause (c) of this sub-article postulates a case in which a difficult question involving an unsettled principle requires to be finally determined by the Supreme Court. That does nto seem to be the case before me, and indeed no attempt has been made to show that there is any question of principle involved in the impugned order which requires authoritative decision by the Supreme Court. But this apart, the grant of maintenance in this case is a tentative order and it is always open to the authorities to ask for re-consideration and re-determination on account of change of circumstances. The children in these proceedings may, if they are so advised, even now apply to a competent Court under Section 488 for maintenance and if they make out a good claim to the satisfaction of the Court, I have nto the least doubt that suitable orders would be made in accordance with law. The revision on their behalf was held to be barred by time and this Court did nto consider it proper to exercise its suo motu power of revision in this regard. There is no decision on the merits against them by this Court and it has nto been shown that the impugned decision is based on any wrong principle of law which requires further examination by the Supreme Court.',
	(int) 17 => '<p>5. For the foregoing reasons, this application fails and is dismissed.',
	(int) 18 => '<p>6. Application dismissed.<p>',
	(int) 19 => '<p>'
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Provided, further that no warrant shall be issued for the recovery of any amount due under this direction unless application be made to the Court to levy such amount within a period of one year from the date on which it became due.

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	'title_for_layout' => 'Harbhajan Kaur Vs Sant Singh - Citation 681173 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '681173',
			'acts' => '<a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 133, 134, 134(1) and 226; <a href="/act/133280/code-of-criminal-procedure-1898-complete-act">Code of Criminal Procedure (CrPC) , 1898</a> - Sections 342, 488, 488(3) and 488(6)',
			'appealno' => 'Criminal Misc. (SCA) No. 855 of 1968',
			'appellant' => 'Harbhajan Kaur',
			'authreffered' => '',
			'casename' => 'Harbhajan Kaur Vs. Sant Singh',
			'casenote' => ' (i) 
Criminal Procedure Code (V of 1898)- Section 488--Proceedings under--nature of--are criminal proceedings and nto Civil proceedings.; The proceedings envisaged by  Chapter xxxvI of the Code cannto be considered 
purely civil proceedings, though the person in default, against whom maintenance order is sought, may nto be an accused person, whose examination without oath is mandatory as prescribed by section 342 of the Code and he may be entitled to appear as a witness as 
well.; Chapter 7-A of Vol. III of Rules and Orders of the Punjab High Court dealing with the maintenance cases also recites that proceedings under section 488 of the Code of Criminal Procedure are of criminal character and the provisions contained therein must, thereforee, be strictly followed.; (ii) Constitution of India - Article 134--Proceedings under Section 488 within the contemplation of--expression--'Criminal proceedings'--scope of.;  That the proceedings under Section 488 Cr. P.C. do fall within the contemplation of criminal proceedings within the meaning of Article 134. 
The expression 'Criminal Proceedings' in this Article is wide enough to include maintenance proceedings adjucated upon by Magistrate initiated under Chapter xxxvI. Such maintenance proceedings are criminal proceedings designed by way of summary process to provide to deserted wives and neglected children adjudication of their civil right of maintenance up to a limited amount enforceable through criminal courts, to avoid the notorious delays of civil proceedings, which may still be utilised for fuller relief under the general law 
in the ordinary civil courts. - Section 13: [Altamas Kabir & Cyriac Joseph,JJ] Custody of child - Welfare of child vis--vis comity of Courts - The minor girl child of 3 1/2 years was brought to India by her mother. The minor girl was a citizen of U.K. being born in U.K. her parents had set up their matrimonial home in U.K. and had acquired status of permanent residents of U.K. The child with her mother was supposed to return to U.K. but the mother cancelled her tickets and remained behind in India. The husband thereupon started procededings before the High Court of Justice, Family Division. U.K. praying for an order that the minor child be made a ward of the Court and for a direction upon the wife to return the minor child to the jurisdiction of the said Court. A further direction was given for the passport and other international travel documents of the minor child to be handed over to the Solicitors of the husband. A petition seeking protection of minor child was thereupon filed by father of the husband before Delhi High Court. A direction for handing over custody of child to father of husband was also sought. The High Court considering fact that the U.K. court was already in seisin of  matter and had passed an interim order and by relying on principle of comity of Nations and Comity of Judgments of the courts of two different countries in deciding the matter directed the wife to take the child of her own to U.K.or hand it over to father of husband to be taken to U.K. as measure of interim custody and that it would be for the U.K. Court to decide the question of custody  -  Order was challenged by wife -  Held, the order of High Court was not liable to be interfered with. Although, on first impression, it would appear that the interests of the minor child would best be served if she is allowed to remain with the wife, the order of U.K. court cannot be lost sight of., The order of U.K. Court except for insisiting that the minor be returned to its jurisdiction, the English Court did not intend to separate the child from the mother until a final decision was taken with regard to the custody of the child. The ultimate decision in that regard has to be left to the English Court having regard to the nationality of the child and the fact that both the parents had worked for gain in the U.K. and had also acquired permanent resident status in the U.K. English Court has not directed that the custody of the child should be handed over to  the father but that the child should be returned to the jurisdiction of the Courts in the U.K. which would then proceed to determine as to who would be best suited to have the custody of the child. The High Court has taken into consideration both the questions relating to the Comity of Courts as well as the interest of the minor child, which, no doubt, is one of the most important considerations in matters relating to custody of a minor child.  -  Provided that, if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if ho is satisfied that there is just ground for so doing. Provided that if the Magistrate is satisfied that he is willfully avoiding service, or willfully neglects to attend the Court, the Magistrate may proceed to hear and determine the case ex parte. Any order so made may be set aside for good cause shown, on application made within three months from the date thereof. It is obvious that the proceedings envisaged by Chapter xxxvi of the Code cannto be considered to be purely civil proceedings, though the person in default, against whom maintenance order is sought, may nto be an accused person whose examination without oath is mandatory as prescribed by Section 342 of the Code and he may be entitled to appear as a witness as well. I am aware of some conflict of judicial opinion in some old cases where on the ground that the procedure of trying maintenance applications being that of a summons case, failure to examine the person proceeded against under Section 342 of the Code, was held to vitiate the proceedings, but that conflict was set at rest by later decisions in which this section was held inapplicable to proceedings under S. These proceedings seem to me to be clearly criminal proceedings and I find no logical and rational basis for holding them to be civil proceedings so as to exclude the applicability of Article 134 of the Constitution. The difference between the relative scope of a civil revision and of a criminal revision is well known and revision against an order under Section 488, Cr. The children in these proceedings may, if they are so advised, even now apply to a competent Court under Section 488 for maintenance and if they make out a good claim to the satisfaction of the Court, I have nto the least doubt that suitable orders would be made in accordance with law.',
			'caseanalysis' => null,
			'casesref' => 'Kapur Singh v. Union of India;',
			'citingcases' => '',
			'counselplain' => ' O.P. Sharma, Adv',
			'counseldef' => ' Madan Bhatia, Adv.',
			'court' => 'Delhi',
			'court_type' => 'HC',
			'decidedon' => '1968-12-17',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' I.D. Dua, C.J.',
			'judgement' => '<p style="text-align: justify;">1. In this application for a certificate of fitness for appeal to the Supreme Court from an order made on revision by this Court in proceedings under Section 488, Cr. P. C, a preliminary objection has been raised that Article 134(1)(c) of the Constitution is inapplicable because proceedings under Section 488 are civil proceedings and nto criminal proceedings. Reliance in support of this preliminary objection has been placed on a decision of the Supreme Court in Nand Lal Misra v. K.L. Misra, : 1960CriLJ1246 . Emphasis has been laid on the observations In this Judgment that Chapter xxxvi of the Code of Criminal Procedure is a self-contained one and the relief given under it is essentially of a civil nature. From this sentence, it is sought to be argued that the proceedings under section 488 are civil proceedings and nto criminal proceedings. Reliance has also been placed on a still more recent Judgment of the Supreme Court in Narayan Row v. Ishwar Lal, : [1965]57ITR149(SC) , in which while dealing with an appeal from an order made by the Bombay High Court under Article 226 of the Constitution, in a matter pertaining to recovery of income-tax, it was observed that the proceedings were civil proceedings within the meaning of Article 133(1)(c) of the Constitution. Reference has next been made to a Full Bench decision of the Punjab High Court in Kapur Singh v. Union of India, where also the question about the nature of proceedings under Articles 133 and 226 of the Constitution came up for discussion. In my opinion, none of these decisions throw helpful light on the question which the preliminary objection poses. Section 488 reads as under:</p><p style="text-align: justify;">'488. Order for maintenance of wives and children.--(1) If any person having sufficient means neglects or refuses to maintain his wife or his legitimate or illegitimate child unable to maintain itself, the District Magistrate, a Presidency Magistrate, a Sub-Divisional Magistrate or 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, at such monthly rate, nto exceeding five hundred rupees in the whole, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate from time to time directs.</p><p style="text-align: justify;"> (2) Such allowance shall be payable from the date of the order, or if so ordered from the date of the application for maintenance.</p><p style="text-align: justify;"> (3) If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in manner hereinbefore provided for levying fines, and may sentence such person, for the whole or any part of each month's allowance remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made:</p><p style="text-align: justify;"> Provided that, if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if ho is satisfied that there is just ground for so doing.</p><p style="text-align: justify;"> If a husband has contracted marriage with another wife or keeps a mistress, it shall be considered to be just ground for his wife's refusal to live with him:</p><p style="text-align: justify;"> Provided, further that no warrant shall be issued for the recovery of any amount due under this direction unless application be made to the Court to levy such amount within a period of one year from the date on which it became due.</p><p style="text-align: justify;"> (4) No wife shall be entitled to receive an allowance from her husband under this section if she is living in adultery, or if, without any sufficient reason she refuses to live with her husband, or if they are living separately by mutual consent.</p><p style="text-align: justify;"> (5) On proof that any wife in whose favor an order has been made under this section is living in adultery, or that without sufficient reason she refuses to live with her husband, or that they are living separately by mutual consent, the Magistrate shall cancel the order.</p><p style="text-align: justify;"> (6) All evidence under this Chapter shall be taken in the presence of the husband or father, as the case may be, or, when his personal attendance is dispensed with, in the presence of his pleader, and shall be recorded in :he manner prescribed in the case of summons-cases:</p><p style="text-align: justify;"> Provided that if the Magistrate is satisfied that he is willfully avoiding service, or willfully neglects to attend the Court, the Magistrate may proceed to hear and determine the case ex parte. Any order so made may be set aside for good cause shown, on application made within three months from the date thereof.</p><p style="text-align: justify;"> (7) The Court in dealing with applications under this section shall have power to make such order as to costs as may be just.</p><p style="text-align: justify;"> (8) Proceedings under this section may be taken against any person in any district where he resides or is, or where he last resided with his wife or, as the case may be, the mother of the illegitimate child.' </p><p style="text-align: justify;">It is obvious that it confers power to order maintenance, on District Magistrates, Presidency Magistrates, Sub-Divisional Magistrates and Magistrates of the 1st Class: Courts which are indisputably criminal Courts and nto civil Courts. Sub-section (6) provides that all evidence under this Chapter has to be taken in the presence of the husband or father, as the case may be, or when his personal attendance is dispensed with, in the presence of his pleader and it is to be recorded in the manner prescribed in the case of summons-cases. This is a further indication that the proceedings are criminal proceedings and nto civil proceedings. The argument that there is no penalty imposed by this section and the proceedings thereforee, cannto be described as 'criminal' is also unacceptable because according to Section 488(3), which provides for enforcement of orders, in certain circumstances, the person in default can be imprisoned for a term which may extend to one month or until payment, if sooner made, though I should nto be understood to hold this consideration to be conclusive on the point either way. It is obvious that the proceedings envisaged by Chapter xxxvi of the Code cannto be considered to be purely civil proceedings, though the person in default, against whom maintenance order is sought, may nto be an accused person whose examination without oath is mandatory as prescribed by Section 342 of the Code and he may be entitled to appear as a witness as well. I am aware of some conflict of judicial opinion in some old cases where on the ground that the procedure of trying maintenance applications being that of a summons case, failure to examine the person proceeded against under Section 342 of the Code, was held to vitiate the proceedings, but that conflict was set at rest by later decisions in which this section was held inapplicable to proceedings under S. 488. However, consistently all the Courts dealing with that question had assumed that the proceedings were criminal proceedings governed by the Code of Criminal Procedure, both in regard to the trial and the power of revision of the Court of the Sessions Judge and of the High Court.</p><p style="text-align: justify;">2. Chapter 7-A of Vol. Iii of Rules and Orders of the Punjab High Court dealing with the maintenance cases also recites that proceedings under Section 488 of the Code of Criminal Procedure are of a criminal character and the provisions contained therein must, thereforee, be strictly followed. Keeping in view the scheme of Chapter xxxvi of the Code of Criminal Procedure and also the scheme of Articles 133 and 134 of the Constitution, I have little hesitation in holding that proceedings under Section 488, Cr. P. C., do fall within the contemplation of criminal proceedings within the meaning of Article 134. The expression 'criminal proceedings' in this Article, seems to me to be wide enough to include maintenance proceedings adjudicated upon by Magistrates initiated under Chapter xxxvI. Such maintenance proceedings are, in my view, criminal proceedings, designed by way of summary process to provide to deserted wives and neglected children, adjudication of their civil right of maintenance up to al limited amount, enforceable through criminal Courts, to avoid the notorious delays of civil proceedings, which may still be utilised for fuller relief under the general law in the ordinary civil Courts.</p><p style="text-align: justify;">3. And then, what directly concerns this Court is the question of the nature of the proceedings on revision in this Court. These proceedings seem to me to be clearly criminal proceedings and I find no logical and rational basis for holding them to be civil proceedings so as to exclude the applicability of Article 134 of the Constitution. Nto only are they registered in this Court as criminal revisions but they are also presented in this Court under the Cr. P. C. and nto under the Civil P. C. The difference between the relative scope of a civil revision and of a criminal revision is well known and revision against an order under Section 488, Cr. P. C. has never been held to my knowledge to be a civil revision so as to exclude the applicability of Art. 134(1)(c) of the Constitution. The preliminary objection is, thereforee, nto easy to sustain.</p><p style="text-align: justify;">4. Coming now to the merits, the learned counsel for the petitioner has very strongly argued that according to Section 488 of the Code, a separate order should have been made granting maintenance to the children. In my opinion, the question which concerns this Court in this present proceedings is nto so much as to what should have been done by the Magistrate while dealing with Section 488, Cr. P. C., but whether there is any such infirmity in the order of this Court as would justify a certificate of fitness within the contemplation of Article 134(1)(c) of the Constitution. It is nto argued, and it cannto be argued, that clause (a) or clause (b) of Article 134(1) covers this case. Clause (c) of this sub-article postulates a case in which a difficult question involving an unsettled principle requires to be finally determined by the Supreme Court. That does nto seem to be the case before me, and indeed no attempt has been made to show that there is any question of principle involved in the impugned order which requires authoritative decision by the Supreme Court. But this apart, the grant of maintenance in this case is a tentative order and it is always open to the authorities to ask for re-consideration and re-determination on account of change of circumstances. The children in these proceedings may, if they are so advised, even now apply to a competent Court under Section 488 for maintenance and if they make out a good claim to the satisfaction of the Court, I have nto the least doubt that suitable orders would be made in accordance with law. The revision on their behalf was held to be barred by time and this Court did nto consider it proper to exercise its suo motu power of revision in this regard. There is no decision on the merits against them by this Court and it has nto been shown that the impugned decision is based on any wrong principle of law which requires further examination by the Supreme Court.</p><p style="text-align: justify;">5. For the foregoing reasons, this application fails and is dismissed.</p><p style="text-align: justify;">6. Application dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => 'AIR1969Delhi298; 1969CriLJ1243; ILR1968Delhi545',
			'ratiodecidendi' => '',
			'respondent' => 'Sant Singh',
			'sub' => 'Criminal;Constitution',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'harbhajan-kaur-vs-sant-singh',
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$title_for_layout = 'Harbhajan Kaur Vs Sant Singh - Citation 681173 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '681173',
		'acts' => '<a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 133, 134, 134(1) and 226; <a href="/act/133280/code-of-criminal-procedure-1898-complete-act">Code of Criminal Procedure (CrPC) , 1898</a> - Sections 342, 488, 488(3) and 488(6)',
		'appealno' => 'Criminal Misc. (SCA) No. 855 of 1968',
		'appellant' => 'Harbhajan Kaur',
		'authreffered' => '',
		'casename' => 'Harbhajan Kaur Vs. Sant Singh',
		'casenote' => ' (i) 
Criminal Procedure Code (V of 1898)- Section 488--Proceedings under--nature of--are criminal proceedings and nto Civil proceedings.; The proceedings envisaged by  Chapter xxxvI of the Code cannto be considered 
purely civil proceedings, though the person in default, against whom maintenance order is sought, may nto be an accused person, whose examination without oath is mandatory as prescribed by section 342 of the Code and he may be entitled to appear as a witness as 
well.; Chapter 7-A of Vol. III of Rules and Orders of the Punjab High Court dealing with the maintenance cases also recites that proceedings under section 488 of the Code of Criminal Procedure are of criminal character and the provisions contained therein must, thereforee, be strictly followed.; (ii) Constitution of India - Article 134--Proceedings under Section 488 within the contemplation of--expression--'Criminal proceedings'--scope of.;  That the proceedings under Section 488 Cr. P.C. do fall within the contemplation of criminal proceedings within the meaning of Article 134. 
The expression 'Criminal Proceedings' in this Article is wide enough to include maintenance proceedings adjucated upon by Magistrate initiated under Chapter xxxvI. Such maintenance proceedings are criminal proceedings designed by way of summary process to provide to deserted wives and neglected children adjudication of their civil right of maintenance up to a limited amount enforceable through criminal courts, to avoid the notorious delays of civil proceedings, which may still be utilised for fuller relief under the general law 
in the ordinary civil courts. - Section 13: [Altamas Kabir & Cyriac Joseph,JJ] Custody of child - Welfare of child vis--vis comity of Courts - The minor girl child of 3 1/2 years was brought to India by her mother. The minor girl was a citizen of U.K. being born in U.K. her parents had set up their matrimonial home in U.K. and had acquired status of permanent residents of U.K. The child with her mother was supposed to return to U.K. but the mother cancelled her tickets and remained behind in India. The husband thereupon started procededings before the High Court of Justice, Family Division. U.K. praying for an order that the minor child be made a ward of the Court and for a direction upon the wife to return the minor child to the jurisdiction of the said Court. A further direction was given for the passport and other international travel documents of the minor child to be handed over to the Solicitors of the husband. A petition seeking protection of minor child was thereupon filed by father of the husband before Delhi High Court. A direction for handing over custody of child to father of husband was also sought. The High Court considering fact that the U.K. court was already in seisin of  matter and had passed an interim order and by relying on principle of comity of Nations and Comity of Judgments of the courts of two different countries in deciding the matter directed the wife to take the child of her own to U.K.or hand it over to father of husband to be taken to U.K. as measure of interim custody and that it would be for the U.K. Court to decide the question of custody  -  Order was challenged by wife -  Held, the order of High Court was not liable to be interfered with. Although, on first impression, it would appear that the interests of the minor child would best be served if she is allowed to remain with the wife, the order of U.K. court cannot be lost sight of., The order of U.K. Court except for insisiting that the minor be returned to its jurisdiction, the English Court did not intend to separate the child from the mother until a final decision was taken with regard to the custody of the child. The ultimate decision in that regard has to be left to the English Court having regard to the nationality of the child and the fact that both the parents had worked for gain in the U.K. and had also acquired permanent resident status in the U.K. English Court has not directed that the custody of the child should be handed over to  the father but that the child should be returned to the jurisdiction of the Courts in the U.K. which would then proceed to determine as to who would be best suited to have the custody of the child. The High Court has taken into consideration both the questions relating to the Comity of Courts as well as the interest of the minor child, which, no doubt, is one of the most important considerations in matters relating to custody of a minor child.  -  Provided that, if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if ho is satisfied that there is just ground for so doing. Provided that if the Magistrate is satisfied that he is willfully avoiding service, or willfully neglects to attend the Court, the Magistrate may proceed to hear and determine the case ex parte. Any order so made may be set aside for good cause shown, on application made within three months from the date thereof. It is obvious that the proceedings envisaged by Chapter xxxvi of the Code cannto be considered to be purely civil proceedings, though the person in default, against whom maintenance order is sought, may nto be an accused person whose examination without oath is mandatory as prescribed by Section 342 of the Code and he may be entitled to appear as a witness as well. I am aware of some conflict of judicial opinion in some old cases where on the ground that the procedure of trying maintenance applications being that of a summons case, failure to examine the person proceeded against under Section 342 of the Code, was held to vitiate the proceedings, but that conflict was set at rest by later decisions in which this section was held inapplicable to proceedings under S. These proceedings seem to me to be clearly criminal proceedings and I find no logical and rational basis for holding them to be civil proceedings so as to exclude the applicability of Article 134 of the Constitution. The difference between the relative scope of a civil revision and of a criminal revision is well known and revision against an order under Section 488, Cr. The children in these proceedings may, if they are so advised, even now apply to a competent Court under Section 488 for maintenance and if they make out a good claim to the satisfaction of the Court, I have nto the least doubt that suitable orders would be made in accordance with law.',
		'caseanalysis' => null,
		'casesref' => 'Kapur Singh v. Union of India;',
		'citingcases' => '',
		'counselplain' => ' O.P. Sharma, Adv',
		'counseldef' => ' Madan Bhatia, Adv.',
		'court' => 'Delhi',
		'court_type' => 'HC',
		'decidedon' => '1968-12-17',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' I.D. Dua, C.J.',
		'judgement' => '<p>1. In this application for a certificate of fitness for appeal to the Supreme Court from an order made on revision by this Court in proceedings under Section 488, Cr. P. C, a preliminary objection has been raised that Article 134(1)(c) of the Constitution is inapplicable because proceedings under Section 488 are civil proceedings and nto criminal proceedings. Reliance in support of this preliminary objection has been placed on a decision of the Supreme Court in Nand Lal Misra v. K.L. Misra, : 1960CriLJ1246 . Emphasis has been laid on the observations In this Judgment that Chapter xxxvi of the Code of Criminal Procedure is a self-contained one and the relief given under it is essentially of a civil nature. From this sentence, it is sought to be argued that the proceedings under section 488 are civil proceedings and nto criminal proceedings. Reliance has also been placed on a still more recent Judgment of the Supreme Court in Narayan Row v. Ishwar Lal, : [1965]57ITR149(SC) , in which while dealing with an appeal from an order made by the Bombay High Court under Article 226 of the Constitution, in a matter pertaining to recovery of income-tax, it was observed that the proceedings were civil proceedings within the meaning of Article 133(1)(c) of the Constitution. Reference has next been made to a Full Bench decision of the Punjab High Court in Kapur Singh v. Union of India, where also the question about the nature of proceedings under Articles 133 and 226 of the Constitution came up for discussion. In my opinion, none of these decisions throw helpful light on the question which the preliminary objection poses. Section 488 reads as under:</p><p>'488. Order for maintenance of wives and children.--(1) If any person having sufficient means neglects or refuses to maintain his wife or his legitimate or illegitimate child unable to maintain itself, the District Magistrate, a Presidency Magistrate, a Sub-Divisional Magistrate or 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, at such monthly rate, nto exceeding five hundred rupees in the whole, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate from time to time directs.</p><p> (2) Such allowance shall be payable from the date of the order, or if so ordered from the date of the application for maintenance.</p><p> (3) If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in manner hereinbefore provided for levying fines, and may sentence such person, for the whole or any part of each month's allowance remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made:</p><p> Provided that, if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if ho is satisfied that there is just ground for so doing.</p><p> If a husband has contracted marriage with another wife or keeps a mistress, it shall be considered to be just ground for his wife's refusal to live with him:</p><p> Provided, further that no warrant shall be issued for the recovery of any amount due under this direction unless application be made to the Court to levy such amount within a period of one year from the date on which it became due.</p><p> (4) No wife shall be entitled to receive an allowance from her husband under this section if she is living in adultery, or if, without any sufficient reason she refuses to live with her husband, or if they are living separately by mutual consent.</p><p> (5) On proof that any wife in whose favor an order has been made under this section is living in adultery, or that without sufficient reason she refuses to live with her husband, or that they are living separately by mutual consent, the Magistrate shall cancel the order.</p><p> (6) All evidence under this Chapter shall be taken in the presence of the husband or father, as the case may be, or, when his personal attendance is dispensed with, in the presence of his pleader, and shall be recorded in :he manner prescribed in the case of summons-cases:</p><p> Provided that if the Magistrate is satisfied that he is willfully avoiding service, or willfully neglects to attend the Court, the Magistrate may proceed to hear and determine the case ex parte. Any order so made may be set aside for good cause shown, on application made within three months from the date thereof.</p><p> (7) The Court in dealing with applications under this section shall have power to make such order as to costs as may be just.</p><p> (8) Proceedings under this section may be taken against any person in any district where he resides or is, or where he last resided with his wife or, as the case may be, the mother of the illegitimate child.' </p><p>It is obvious that it confers power to order maintenance, on District Magistrates, Presidency Magistrates, Sub-Divisional Magistrates and Magistrates of the 1st Class: Courts which are indisputably criminal Courts and nto civil Courts. Sub-section (6) provides that all evidence under this Chapter has to be taken in the presence of the husband or father, as the case may be, or when his personal attendance is dispensed with, in the presence of his pleader and it is to be recorded in the manner prescribed in the case of summons-cases. This is a further indication that the proceedings are criminal proceedings and nto civil proceedings. The argument that there is no penalty imposed by this section and the proceedings thereforee, cannto be described as 'criminal' is also unacceptable because according to Section 488(3), which provides for enforcement of orders, in certain circumstances, the person in default can be imprisoned for a term which may extend to one month or until payment, if sooner made, though I should nto be understood to hold this consideration to be conclusive on the point either way. It is obvious that the proceedings envisaged by Chapter xxxvi of the Code cannto be considered to be purely civil proceedings, though the person in default, against whom maintenance order is sought, may nto be an accused person whose examination without oath is mandatory as prescribed by Section 342 of the Code and he may be entitled to appear as a witness as well. I am aware of some conflict of judicial opinion in some old cases where on the ground that the procedure of trying maintenance applications being that of a summons case, failure to examine the person proceeded against under Section 342 of the Code, was held to vitiate the proceedings, but that conflict was set at rest by later decisions in which this section was held inapplicable to proceedings under S. 488. However, consistently all the Courts dealing with that question had assumed that the proceedings were criminal proceedings governed by the Code of Criminal Procedure, both in regard to the trial and the power of revision of the Court of the Sessions Judge and of the High Court.</p><p>2. Chapter 7-A of Vol. Iii of Rules and Orders of the Punjab High Court dealing with the maintenance cases also recites that proceedings under Section 488 of the Code of Criminal Procedure are of a criminal character and the provisions contained therein must, thereforee, be strictly followed. Keeping in view the scheme of Chapter xxxvi of the Code of Criminal Procedure and also the scheme of Articles 133 and 134 of the Constitution, I have little hesitation in holding that proceedings under Section 488, Cr. P. C., do fall within the contemplation of criminal proceedings within the meaning of Article 134. The expression 'criminal proceedings' in this Article, seems to me to be wide enough to include maintenance proceedings adjudicated upon by Magistrates initiated under Chapter xxxvI. Such maintenance proceedings are, in my view, criminal proceedings, designed by way of summary process to provide to deserted wives and neglected children, adjudication of their civil right of maintenance up to al limited amount, enforceable through criminal Courts, to avoid the notorious delays of civil proceedings, which may still be utilised for fuller relief under the general law in the ordinary civil Courts.</p><p>3. And then, what directly concerns this Court is the question of the nature of the proceedings on revision in this Court. These proceedings seem to me to be clearly criminal proceedings and I find no logical and rational basis for holding them to be civil proceedings so as to exclude the applicability of Article 134 of the Constitution. Nto only are they registered in this Court as criminal revisions but they are also presented in this Court under the Cr. P. C. and nto under the Civil P. C. The difference between the relative scope of a civil revision and of a criminal revision is well known and revision against an order under Section 488, Cr. P. C. has never been held to my knowledge to be a civil revision so as to exclude the applicability of Art. 134(1)(c) of the Constitution. The preliminary objection is, thereforee, nto easy to sustain.</p><p>4. Coming now to the merits, the learned counsel for the petitioner has very strongly argued that according to Section 488 of the Code, a separate order should have been made granting maintenance to the children. In my opinion, the question which concerns this Court in this present proceedings is nto so much as to what should have been done by the Magistrate while dealing with Section 488, Cr. P. C., but whether there is any such infirmity in the order of this Court as would justify a certificate of fitness within the contemplation of Article 134(1)(c) of the Constitution. It is nto argued, and it cannto be argued, that clause (a) or clause (b) of Article 134(1) covers this case. Clause (c) of this sub-article postulates a case in which a difficult question involving an unsettled principle requires to be finally determined by the Supreme Court. That does nto seem to be the case before me, and indeed no attempt has been made to show that there is any question of principle involved in the impugned order which requires authoritative decision by the Supreme Court. But this apart, the grant of maintenance in this case is a tentative order and it is always open to the authorities to ask for re-consideration and re-determination on account of change of circumstances. The children in these proceedings may, if they are so advised, even now apply to a competent Court under Section 488 for maintenance and if they make out a good claim to the satisfaction of the Court, I have nto the least doubt that suitable orders would be made in accordance with law. The revision on their behalf was held to be barred by time and this Court did nto consider it proper to exercise its suo motu power of revision in this regard. There is no decision on the merits against them by this Court and it has nto been shown that the impugned decision is based on any wrong principle of law which requires further examination by the Supreme Court.</p><p>5. For the foregoing reasons, this application fails and is dismissed.</p><p>6. Application dismissed.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'AIR1969Delhi298; 1969CriLJ1243; ILR1968Delhi545',
		'ratiodecidendi' => '',
		'respondent' => 'Sant Singh',
		'sub' => 'Criminal;Constitution',
		'link' => null,
		'circuit' => null
	)
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$content = array(
	(int) 0 => '<p>1. In this application for a certificate of fitness for appeal to the Supreme Court from an order made on revision by this Court in proceedings under Section 488, Cr. P. C, a preliminary objection has been raised that Article 134(1)(c) of the Constitution is inapplicable because proceedings under Section 488 are civil proceedings and nto criminal proceedings. Reliance in support of this preliminary objection has been placed on a decision of the Supreme Court in Nand Lal Misra v. K.L. Misra, : 1960CriLJ1246 . Emphasis has been laid on the observations In this Judgment that Chapter xxxvi of the Code of Criminal Procedure is a self-contained one and the relief given under it is essentially of a civil nature. From this sentence, it is sought to be argued that the proceedings under section 488 are civil proceedings and nto criminal proceedings. Reliance has also been placed on a still more recent Judgment of the Supreme Court in Narayan Row v. Ishwar Lal, : [1965]57ITR149(SC) , in which while dealing with an appeal from an order made by the Bombay High Court under Article 226 of the Constitution, in a matter pertaining to recovery of income-tax, it was observed that the proceedings were civil proceedings within the meaning of Article 133(1)(c) of the Constitution. Reference has next been made to a Full Bench decision of the Punjab High Court in Kapur Singh v. Union of India, where also the question about the nature of proceedings under Articles 133 and 226 of the Constitution came up for discussion. In my opinion, none of these decisions throw helpful light on the question which the preliminary objection poses. Section 488 reads as under:',
	(int) 1 => '<p>'488. Order for maintenance of wives and children.--(1) If any person having sufficient means neglects or refuses to maintain his wife or his legitimate or illegitimate child unable to maintain itself, the District Magistrate, a Presidency Magistrate, a Sub-Divisional Magistrate or 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, at such monthly rate, nto exceeding five hundred rupees in the whole, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate from time to time directs.',
	(int) 2 => '<p> (2) Such allowance shall be payable from the date of the order, or if so ordered from the date of the application for maintenance.',
	(int) 3 => '<p> (3) If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in manner hereinbefore provided for levying fines, and may sentence such person, for the whole or any part of each month's allowance remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made:',
	(int) 4 => '<p> Provided that, if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if ho is satisfied that there is just ground for so doing.',
	(int) 5 => '<p> If a husband has contracted marriage with another wife or keeps a mistress, it shall be considered to be just ground for his wife's refusal to live with him:',
	(int) 6 => '<p> Provided, further that no warrant shall be issued for the recovery of any amount due under this direction unless application be made to the Court to levy such amount within a period of one year from the date on which it became due.',
	(int) 7 => '<p> (4) No wife shall be entitled to receive an allowance from her husband under this section if she is living in adultery, or if, without any sufficient reason she refuses to live with her husband, or if they are living separately by mutual consent.',
	(int) 8 => '<p> (5) On proof that any wife in whose favor an order has been made under this section is living in adultery, or that without sufficient reason she refuses to live with her husband, or that they are living separately by mutual consent, the Magistrate shall cancel the order.',
	(int) 9 => '<p> (6) All evidence under this Chapter shall be taken in the presence of the husband or father, as the case may be, or, when his personal attendance is dispensed with, in the presence of his pleader, and shall be recorded in :he manner prescribed in the case of summons-cases:',
	(int) 10 => '<p> Provided that if the Magistrate is satisfied that he is willfully avoiding service, or willfully neglects to attend the Court, the Magistrate may proceed to hear and determine the case ex parte. Any order so made may be set aside for good cause shown, on application made within three months from the date thereof.',
	(int) 11 => '<p> (7) The Court in dealing with applications under this section shall have power to make such order as to costs as may be just.',
	(int) 12 => '<p> (8) Proceedings under this section may be taken against any person in any district where he resides or is, or where he last resided with his wife or, as the case may be, the mother of the illegitimate child.' ',
	(int) 13 => '<p>It is obvious that it confers power to order maintenance, on District Magistrates, Presidency Magistrates, Sub-Divisional Magistrates and Magistrates of the 1st Class: Courts which are indisputably criminal Courts and nto civil Courts. Sub-section (6) provides that all evidence under this Chapter has to be taken in the presence of the husband or father, as the case may be, or when his personal attendance is dispensed with, in the presence of his pleader and it is to be recorded in the manner prescribed in the case of summons-cases. This is a further indication that the proceedings are criminal proceedings and nto civil proceedings. The argument that there is no penalty imposed by this section and the proceedings thereforee, cannto be described as 'criminal' is also unacceptable because according to Section 488(3), which provides for enforcement of orders, in certain circumstances, the person in default can be imprisoned for a term which may extend to one month or until payment, if sooner made, though I should nto be understood to hold this consideration to be conclusive on the point either way. It is obvious that the proceedings envisaged by Chapter xxxvi of the Code cannto be considered to be purely civil proceedings, though the person in default, against whom maintenance order is sought, may nto be an accused person whose examination without oath is mandatory as prescribed by Section 342 of the Code and he may be entitled to appear as a witness as well. I am aware of some conflict of judicial opinion in some old cases where on the ground that the procedure of trying maintenance applications being that of a summons case, failure to examine the person proceeded against under Section 342 of the Code, was held to vitiate the proceedings, but that conflict was set at rest by later decisions in which this section was held inapplicable to proceedings under S. 488. However, consistently all the Courts dealing with that question had assumed that the proceedings were criminal proceedings governed by the Code of Criminal Procedure, both in regard to the trial and the power of revision of the Court of the Sessions Judge and of the High Court.',
	(int) 14 => '<p>2. Chapter 7-A of Vol. Iii of Rules and Orders of the Punjab High Court dealing with the maintenance cases also recites that proceedings under Section 488 of the Code of Criminal Procedure are of a criminal character and the provisions contained therein must, thereforee, be strictly followed. Keeping in view the scheme of Chapter xxxvi of the Code of Criminal Procedure and also the scheme of Articles 133 and 134 of the Constitution, I have little hesitation in holding that proceedings under Section 488, Cr. P. C., do fall within the contemplation of criminal proceedings within the meaning of Article 134. The expression 'criminal proceedings' in this Article, seems to me to be wide enough to include maintenance proceedings adjudicated upon by Magistrates initiated under Chapter xxxvI. Such maintenance proceedings are, in my view, criminal proceedings, designed by way of summary process to provide to deserted wives and neglected children, adjudication of their civil right of maintenance up to al limited amount, enforceable through criminal Courts, to avoid the notorious delays of civil proceedings, which may still be utilised for fuller relief under the general law in the ordinary civil Courts.',
	(int) 15 => '<p>3. And then, what directly concerns this Court is the question of the nature of the proceedings on revision in this Court. These proceedings seem to me to be clearly criminal proceedings and I find no logical and rational basis for holding them to be civil proceedings so as to exclude the applicability of Article 134 of the Constitution. Nto only are they registered in this Court as criminal revisions but they are also presented in this Court under the Cr. P. C. and nto under the Civil P. C. The difference between the relative scope of a civil revision and of a criminal revision is well known and revision against an order under Section 488, Cr. P. C. has never been held to my knowledge to be a civil revision so as to exclude the applicability of Art. 134(1)(c) of the Constitution. The preliminary objection is, thereforee, nto easy to sustain.',
	(int) 16 => '<p>4. Coming now to the merits, the learned counsel for the petitioner has very strongly argued that according to Section 488 of the Code, a separate order should have been made granting maintenance to the children. In my opinion, the question which concerns this Court in this present proceedings is nto so much as to what should have been done by the Magistrate while dealing with Section 488, Cr. P. C., but whether there is any such infirmity in the order of this Court as would justify a certificate of fitness within the contemplation of Article 134(1)(c) of the Constitution. It is nto argued, and it cannto be argued, that clause (a) or clause (b) of Article 134(1) covers this case. Clause (c) of this sub-article postulates a case in which a difficult question involving an unsettled principle requires to be finally determined by the Supreme Court. That does nto seem to be the case before me, and indeed no attempt has been made to show that there is any question of principle involved in the impugned order which requires authoritative decision by the Supreme Court. But this apart, the grant of maintenance in this case is a tentative order and it is always open to the authorities to ask for re-consideration and re-determination on account of change of circumstances. The children in these proceedings may, if they are so advised, even now apply to a competent Court under Section 488 for maintenance and if they make out a good claim to the satisfaction of the Court, I have nto the least doubt that suitable orders would be made in accordance with law. The revision on their behalf was held to be barred by time and this Court did nto consider it proper to exercise its suo motu power of revision in this regard. There is no decision on the merits against them by this Court and it has nto been shown that the impugned decision is based on any wrong principle of law which requires further examination by the Supreme Court.',
	(int) 17 => '<p>5. For the foregoing reasons, this application fails and is dismissed.',
	(int) 18 => '<p>6. Application dismissed.<p>',
	(int) 19 => '<p>'
)
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(4) No wife shall be entitled to receive an allowance from her husband under this section if she is living in adultery, or if, without any sufficient reason she refuses to live with her husband, or if they are living separately by mutual consent.

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Code Context
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	'title_for_layout' => 'Harbhajan Kaur Vs Sant Singh - Citation 681173 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '681173',
			'acts' => '<a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 133, 134, 134(1) and 226; <a href="/act/133280/code-of-criminal-procedure-1898-complete-act">Code of Criminal Procedure (CrPC) , 1898</a> - Sections 342, 488, 488(3) and 488(6)',
			'appealno' => 'Criminal Misc. (SCA) No. 855 of 1968',
			'appellant' => 'Harbhajan Kaur',
			'authreffered' => '',
			'casename' => 'Harbhajan Kaur Vs. Sant Singh',
			'casenote' => ' (i) 
Criminal Procedure Code (V of 1898)- Section 488--Proceedings under--nature of--are criminal proceedings and nto Civil proceedings.; The proceedings envisaged by  Chapter xxxvI of the Code cannto be considered 
purely civil proceedings, though the person in default, against whom maintenance order is sought, may nto be an accused person, whose examination without oath is mandatory as prescribed by section 342 of the Code and he may be entitled to appear as a witness as 
well.; Chapter 7-A of Vol. III of Rules and Orders of the Punjab High Court dealing with the maintenance cases also recites that proceedings under section 488 of the Code of Criminal Procedure are of criminal character and the provisions contained therein must, thereforee, be strictly followed.; (ii) Constitution of India - Article 134--Proceedings under Section 488 within the contemplation of--expression--'Criminal proceedings'--scope of.;  That the proceedings under Section 488 Cr. P.C. do fall within the contemplation of criminal proceedings within the meaning of Article 134. 
The expression 'Criminal Proceedings' in this Article is wide enough to include maintenance proceedings adjucated upon by Magistrate initiated under Chapter xxxvI. Such maintenance proceedings are criminal proceedings designed by way of summary process to provide to deserted wives and neglected children adjudication of their civil right of maintenance up to a limited amount enforceable through criminal courts, to avoid the notorious delays of civil proceedings, which may still be utilised for fuller relief under the general law 
in the ordinary civil courts. - Section 13: [Altamas Kabir & Cyriac Joseph,JJ] Custody of child - Welfare of child vis--vis comity of Courts - The minor girl child of 3 1/2 years was brought to India by her mother. The minor girl was a citizen of U.K. being born in U.K. her parents had set up their matrimonial home in U.K. and had acquired status of permanent residents of U.K. The child with her mother was supposed to return to U.K. but the mother cancelled her tickets and remained behind in India. The husband thereupon started procededings before the High Court of Justice, Family Division. U.K. praying for an order that the minor child be made a ward of the Court and for a direction upon the wife to return the minor child to the jurisdiction of the said Court. A further direction was given for the passport and other international travel documents of the minor child to be handed over to the Solicitors of the husband. A petition seeking protection of minor child was thereupon filed by father of the husband before Delhi High Court. A direction for handing over custody of child to father of husband was also sought. The High Court considering fact that the U.K. court was already in seisin of  matter and had passed an interim order and by relying on principle of comity of Nations and Comity of Judgments of the courts of two different countries in deciding the matter directed the wife to take the child of her own to U.K.or hand it over to father of husband to be taken to U.K. as measure of interim custody and that it would be for the U.K. Court to decide the question of custody  -  Order was challenged by wife -  Held, the order of High Court was not liable to be interfered with. Although, on first impression, it would appear that the interests of the minor child would best be served if she is allowed to remain with the wife, the order of U.K. court cannot be lost sight of., The order of U.K. Court except for insisiting that the minor be returned to its jurisdiction, the English Court did not intend to separate the child from the mother until a final decision was taken with regard to the custody of the child. The ultimate decision in that regard has to be left to the English Court having regard to the nationality of the child and the fact that both the parents had worked for gain in the U.K. and had also acquired permanent resident status in the U.K. English Court has not directed that the custody of the child should be handed over to  the father but that the child should be returned to the jurisdiction of the Courts in the U.K. which would then proceed to determine as to who would be best suited to have the custody of the child. The High Court has taken into consideration both the questions relating to the Comity of Courts as well as the interest of the minor child, which, no doubt, is one of the most important considerations in matters relating to custody of a minor child.  -  Provided that, if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if ho is satisfied that there is just ground for so doing. Provided that if the Magistrate is satisfied that he is willfully avoiding service, or willfully neglects to attend the Court, the Magistrate may proceed to hear and determine the case ex parte. Any order so made may be set aside for good cause shown, on application made within three months from the date thereof. It is obvious that the proceedings envisaged by Chapter xxxvi of the Code cannto be considered to be purely civil proceedings, though the person in default, against whom maintenance order is sought, may nto be an accused person whose examination without oath is mandatory as prescribed by Section 342 of the Code and he may be entitled to appear as a witness as well. I am aware of some conflict of judicial opinion in some old cases where on the ground that the procedure of trying maintenance applications being that of a summons case, failure to examine the person proceeded against under Section 342 of the Code, was held to vitiate the proceedings, but that conflict was set at rest by later decisions in which this section was held inapplicable to proceedings under S. These proceedings seem to me to be clearly criminal proceedings and I find no logical and rational basis for holding them to be civil proceedings so as to exclude the applicability of Article 134 of the Constitution. The difference between the relative scope of a civil revision and of a criminal revision is well known and revision against an order under Section 488, Cr. The children in these proceedings may, if they are so advised, even now apply to a competent Court under Section 488 for maintenance and if they make out a good claim to the satisfaction of the Court, I have nto the least doubt that suitable orders would be made in accordance with law.',
			'caseanalysis' => null,
			'casesref' => 'Kapur Singh v. Union of India;',
			'citingcases' => '',
			'counselplain' => ' O.P. Sharma, Adv',
			'counseldef' => ' Madan Bhatia, Adv.',
			'court' => 'Delhi',
			'court_type' => 'HC',
			'decidedon' => '1968-12-17',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' I.D. Dua, C.J.',
			'judgement' => '<p style="text-align: justify;">1. In this application for a certificate of fitness for appeal to the Supreme Court from an order made on revision by this Court in proceedings under Section 488, Cr. P. C, a preliminary objection has been raised that Article 134(1)(c) of the Constitution is inapplicable because proceedings under Section 488 are civil proceedings and nto criminal proceedings. Reliance in support of this preliminary objection has been placed on a decision of the Supreme Court in Nand Lal Misra v. K.L. Misra, : 1960CriLJ1246 . Emphasis has been laid on the observations In this Judgment that Chapter xxxvi of the Code of Criminal Procedure is a self-contained one and the relief given under it is essentially of a civil nature. From this sentence, it is sought to be argued that the proceedings under section 488 are civil proceedings and nto criminal proceedings. Reliance has also been placed on a still more recent Judgment of the Supreme Court in Narayan Row v. Ishwar Lal, : [1965]57ITR149(SC) , in which while dealing with an appeal from an order made by the Bombay High Court under Article 226 of the Constitution, in a matter pertaining to recovery of income-tax, it was observed that the proceedings were civil proceedings within the meaning of Article 133(1)(c) of the Constitution. Reference has next been made to a Full Bench decision of the Punjab High Court in Kapur Singh v. Union of India, where also the question about the nature of proceedings under Articles 133 and 226 of the Constitution came up for discussion. In my opinion, none of these decisions throw helpful light on the question which the preliminary objection poses. Section 488 reads as under:</p><p style="text-align: justify;">'488. Order for maintenance of wives and children.--(1) If any person having sufficient means neglects or refuses to maintain his wife or his legitimate or illegitimate child unable to maintain itself, the District Magistrate, a Presidency Magistrate, a Sub-Divisional Magistrate or 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, at such monthly rate, nto exceeding five hundred rupees in the whole, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate from time to time directs.</p><p style="text-align: justify;"> (2) Such allowance shall be payable from the date of the order, or if so ordered from the date of the application for maintenance.</p><p style="text-align: justify;"> (3) If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in manner hereinbefore provided for levying fines, and may sentence such person, for the whole or any part of each month's allowance remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made:</p><p style="text-align: justify;"> Provided that, if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if ho is satisfied that there is just ground for so doing.</p><p style="text-align: justify;"> If a husband has contracted marriage with another wife or keeps a mistress, it shall be considered to be just ground for his wife's refusal to live with him:</p><p style="text-align: justify;"> Provided, further that no warrant shall be issued for the recovery of any amount due under this direction unless application be made to the Court to levy such amount within a period of one year from the date on which it became due.</p><p style="text-align: justify;"> (4) No wife shall be entitled to receive an allowance from her husband under this section if she is living in adultery, or if, without any sufficient reason she refuses to live with her husband, or if they are living separately by mutual consent.</p><p style="text-align: justify;"> (5) On proof that any wife in whose favor an order has been made under this section is living in adultery, or that without sufficient reason she refuses to live with her husband, or that they are living separately by mutual consent, the Magistrate shall cancel the order.</p><p style="text-align: justify;"> (6) All evidence under this Chapter shall be taken in the presence of the husband or father, as the case may be, or, when his personal attendance is dispensed with, in the presence of his pleader, and shall be recorded in :he manner prescribed in the case of summons-cases:</p><p style="text-align: justify;"> Provided that if the Magistrate is satisfied that he is willfully avoiding service, or willfully neglects to attend the Court, the Magistrate may proceed to hear and determine the case ex parte. Any order so made may be set aside for good cause shown, on application made within three months from the date thereof.</p><p style="text-align: justify;"> (7) The Court in dealing with applications under this section shall have power to make such order as to costs as may be just.</p><p style="text-align: justify;"> (8) Proceedings under this section may be taken against any person in any district where he resides or is, or where he last resided with his wife or, as the case may be, the mother of the illegitimate child.' </p><p style="text-align: justify;">It is obvious that it confers power to order maintenance, on District Magistrates, Presidency Magistrates, Sub-Divisional Magistrates and Magistrates of the 1st Class: Courts which are indisputably criminal Courts and nto civil Courts. Sub-section (6) provides that all evidence under this Chapter has to be taken in the presence of the husband or father, as the case may be, or when his personal attendance is dispensed with, in the presence of his pleader and it is to be recorded in the manner prescribed in the case of summons-cases. This is a further indication that the proceedings are criminal proceedings and nto civil proceedings. The argument that there is no penalty imposed by this section and the proceedings thereforee, cannto be described as 'criminal' is also unacceptable because according to Section 488(3), which provides for enforcement of orders, in certain circumstances, the person in default can be imprisoned for a term which may extend to one month or until payment, if sooner made, though I should nto be understood to hold this consideration to be conclusive on the point either way. It is obvious that the proceedings envisaged by Chapter xxxvi of the Code cannto be considered to be purely civil proceedings, though the person in default, against whom maintenance order is sought, may nto be an accused person whose examination without oath is mandatory as prescribed by Section 342 of the Code and he may be entitled to appear as a witness as well. I am aware of some conflict of judicial opinion in some old cases where on the ground that the procedure of trying maintenance applications being that of a summons case, failure to examine the person proceeded against under Section 342 of the Code, was held to vitiate the proceedings, but that conflict was set at rest by later decisions in which this section was held inapplicable to proceedings under S. 488. However, consistently all the Courts dealing with that question had assumed that the proceedings were criminal proceedings governed by the Code of Criminal Procedure, both in regard to the trial and the power of revision of the Court of the Sessions Judge and of the High Court.</p><p style="text-align: justify;">2. Chapter 7-A of Vol. Iii of Rules and Orders of the Punjab High Court dealing with the maintenance cases also recites that proceedings under Section 488 of the Code of Criminal Procedure are of a criminal character and the provisions contained therein must, thereforee, be strictly followed. Keeping in view the scheme of Chapter xxxvi of the Code of Criminal Procedure and also the scheme of Articles 133 and 134 of the Constitution, I have little hesitation in holding that proceedings under Section 488, Cr. P. C., do fall within the contemplation of criminal proceedings within the meaning of Article 134. The expression 'criminal proceedings' in this Article, seems to me to be wide enough to include maintenance proceedings adjudicated upon by Magistrates initiated under Chapter xxxvI. Such maintenance proceedings are, in my view, criminal proceedings, designed by way of summary process to provide to deserted wives and neglected children, adjudication of their civil right of maintenance up to al limited amount, enforceable through criminal Courts, to avoid the notorious delays of civil proceedings, which may still be utilised for fuller relief under the general law in the ordinary civil Courts.</p><p style="text-align: justify;">3. And then, what directly concerns this Court is the question of the nature of the proceedings on revision in this Court. These proceedings seem to me to be clearly criminal proceedings and I find no logical and rational basis for holding them to be civil proceedings so as to exclude the applicability of Article 134 of the Constitution. Nto only are they registered in this Court as criminal revisions but they are also presented in this Court under the Cr. P. C. and nto under the Civil P. C. The difference between the relative scope of a civil revision and of a criminal revision is well known and revision against an order under Section 488, Cr. P. C. has never been held to my knowledge to be a civil revision so as to exclude the applicability of Art. 134(1)(c) of the Constitution. The preliminary objection is, thereforee, nto easy to sustain.</p><p style="text-align: justify;">4. Coming now to the merits, the learned counsel for the petitioner has very strongly argued that according to Section 488 of the Code, a separate order should have been made granting maintenance to the children. In my opinion, the question which concerns this Court in this present proceedings is nto so much as to what should have been done by the Magistrate while dealing with Section 488, Cr. P. C., but whether there is any such infirmity in the order of this Court as would justify a certificate of fitness within the contemplation of Article 134(1)(c) of the Constitution. It is nto argued, and it cannto be argued, that clause (a) or clause (b) of Article 134(1) covers this case. Clause (c) of this sub-article postulates a case in which a difficult question involving an unsettled principle requires to be finally determined by the Supreme Court. That does nto seem to be the case before me, and indeed no attempt has been made to show that there is any question of principle involved in the impugned order which requires authoritative decision by the Supreme Court. But this apart, the grant of maintenance in this case is a tentative order and it is always open to the authorities to ask for re-consideration and re-determination on account of change of circumstances. The children in these proceedings may, if they are so advised, even now apply to a competent Court under Section 488 for maintenance and if they make out a good claim to the satisfaction of the Court, I have nto the least doubt that suitable orders would be made in accordance with law. The revision on their behalf was held to be barred by time and this Court did nto consider it proper to exercise its suo motu power of revision in this regard. There is no decision on the merits against them by this Court and it has nto been shown that the impugned decision is based on any wrong principle of law which requires further examination by the Supreme Court.</p><p style="text-align: justify;">5. For the foregoing reasons, this application fails and is dismissed.</p><p style="text-align: justify;">6. Application dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => 'AIR1969Delhi298; 1969CriLJ1243; ILR1968Delhi545',
			'ratiodecidendi' => '',
			'respondent' => 'Sant Singh',
			'sub' => 'Criminal;Constitution',
			'link' => null,
			'circuit' => null
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$title_for_layout = 'Harbhajan Kaur Vs Sant Singh - Citation 681173 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '681173',
		'acts' => '<a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 133, 134, 134(1) and 226; <a href="/act/133280/code-of-criminal-procedure-1898-complete-act">Code of Criminal Procedure (CrPC) , 1898</a> - Sections 342, 488, 488(3) and 488(6)',
		'appealno' => 'Criminal Misc. (SCA) No. 855 of 1968',
		'appellant' => 'Harbhajan Kaur',
		'authreffered' => '',
		'casename' => 'Harbhajan Kaur Vs. Sant Singh',
		'casenote' => ' (i) 
Criminal Procedure Code (V of 1898)- Section 488--Proceedings under--nature of--are criminal proceedings and nto Civil proceedings.; The proceedings envisaged by  Chapter xxxvI of the Code cannto be considered 
purely civil proceedings, though the person in default, against whom maintenance order is sought, may nto be an accused person, whose examination without oath is mandatory as prescribed by section 342 of the Code and he may be entitled to appear as a witness as 
well.; Chapter 7-A of Vol. III of Rules and Orders of the Punjab High Court dealing with the maintenance cases also recites that proceedings under section 488 of the Code of Criminal Procedure are of criminal character and the provisions contained therein must, thereforee, be strictly followed.; (ii) Constitution of India - Article 134--Proceedings under Section 488 within the contemplation of--expression--'Criminal proceedings'--scope of.;  That the proceedings under Section 488 Cr. P.C. do fall within the contemplation of criminal proceedings within the meaning of Article 134. 
The expression 'Criminal Proceedings' in this Article is wide enough to include maintenance proceedings adjucated upon by Magistrate initiated under Chapter xxxvI. Such maintenance proceedings are criminal proceedings designed by way of summary process to provide to deserted wives and neglected children adjudication of their civil right of maintenance up to a limited amount enforceable through criminal courts, to avoid the notorious delays of civil proceedings, which may still be utilised for fuller relief under the general law 
in the ordinary civil courts. - Section 13: [Altamas Kabir & Cyriac Joseph,JJ] Custody of child - Welfare of child vis--vis comity of Courts - The minor girl child of 3 1/2 years was brought to India by her mother. The minor girl was a citizen of U.K. being born in U.K. her parents had set up their matrimonial home in U.K. and had acquired status of permanent residents of U.K. The child with her mother was supposed to return to U.K. but the mother cancelled her tickets and remained behind in India. The husband thereupon started procededings before the High Court of Justice, Family Division. U.K. praying for an order that the minor child be made a ward of the Court and for a direction upon the wife to return the minor child to the jurisdiction of the said Court. A further direction was given for the passport and other international travel documents of the minor child to be handed over to the Solicitors of the husband. A petition seeking protection of minor child was thereupon filed by father of the husband before Delhi High Court. A direction for handing over custody of child to father of husband was also sought. The High Court considering fact that the U.K. court was already in seisin of  matter and had passed an interim order and by relying on principle of comity of Nations and Comity of Judgments of the courts of two different countries in deciding the matter directed the wife to take the child of her own to U.K.or hand it over to father of husband to be taken to U.K. as measure of interim custody and that it would be for the U.K. Court to decide the question of custody  -  Order was challenged by wife -  Held, the order of High Court was not liable to be interfered with. Although, on first impression, it would appear that the interests of the minor child would best be served if she is allowed to remain with the wife, the order of U.K. court cannot be lost sight of., The order of U.K. Court except for insisiting that the minor be returned to its jurisdiction, the English Court did not intend to separate the child from the mother until a final decision was taken with regard to the custody of the child. The ultimate decision in that regard has to be left to the English Court having regard to the nationality of the child and the fact that both the parents had worked for gain in the U.K. and had also acquired permanent resident status in the U.K. English Court has not directed that the custody of the child should be handed over to  the father but that the child should be returned to the jurisdiction of the Courts in the U.K. which would then proceed to determine as to who would be best suited to have the custody of the child. The High Court has taken into consideration both the questions relating to the Comity of Courts as well as the interest of the minor child, which, no doubt, is one of the most important considerations in matters relating to custody of a minor child.  -  Provided that, if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if ho is satisfied that there is just ground for so doing. Provided that if the Magistrate is satisfied that he is willfully avoiding service, or willfully neglects to attend the Court, the Magistrate may proceed to hear and determine the case ex parte. Any order so made may be set aside for good cause shown, on application made within three months from the date thereof. It is obvious that the proceedings envisaged by Chapter xxxvi of the Code cannto be considered to be purely civil proceedings, though the person in default, against whom maintenance order is sought, may nto be an accused person whose examination without oath is mandatory as prescribed by Section 342 of the Code and he may be entitled to appear as a witness as well. I am aware of some conflict of judicial opinion in some old cases where on the ground that the procedure of trying maintenance applications being that of a summons case, failure to examine the person proceeded against under Section 342 of the Code, was held to vitiate the proceedings, but that conflict was set at rest by later decisions in which this section was held inapplicable to proceedings under S. These proceedings seem to me to be clearly criminal proceedings and I find no logical and rational basis for holding them to be civil proceedings so as to exclude the applicability of Article 134 of the Constitution. The difference between the relative scope of a civil revision and of a criminal revision is well known and revision against an order under Section 488, Cr. The children in these proceedings may, if they are so advised, even now apply to a competent Court under Section 488 for maintenance and if they make out a good claim to the satisfaction of the Court, I have nto the least doubt that suitable orders would be made in accordance with law.',
		'caseanalysis' => null,
		'casesref' => 'Kapur Singh v. Union of India;',
		'citingcases' => '',
		'counselplain' => ' O.P. Sharma, Adv',
		'counseldef' => ' Madan Bhatia, Adv.',
		'court' => 'Delhi',
		'court_type' => 'HC',
		'decidedon' => '1968-12-17',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' I.D. Dua, C.J.',
		'judgement' => '<p>1. In this application for a certificate of fitness for appeal to the Supreme Court from an order made on revision by this Court in proceedings under Section 488, Cr. P. C, a preliminary objection has been raised that Article 134(1)(c) of the Constitution is inapplicable because proceedings under Section 488 are civil proceedings and nto criminal proceedings. Reliance in support of this preliminary objection has been placed on a decision of the Supreme Court in Nand Lal Misra v. K.L. Misra, : 1960CriLJ1246 . Emphasis has been laid on the observations In this Judgment that Chapter xxxvi of the Code of Criminal Procedure is a self-contained one and the relief given under it is essentially of a civil nature. From this sentence, it is sought to be argued that the proceedings under section 488 are civil proceedings and nto criminal proceedings. Reliance has also been placed on a still more recent Judgment of the Supreme Court in Narayan Row v. Ishwar Lal, : [1965]57ITR149(SC) , in which while dealing with an appeal from an order made by the Bombay High Court under Article 226 of the Constitution, in a matter pertaining to recovery of income-tax, it was observed that the proceedings were civil proceedings within the meaning of Article 133(1)(c) of the Constitution. Reference has next been made to a Full Bench decision of the Punjab High Court in Kapur Singh v. Union of India, where also the question about the nature of proceedings under Articles 133 and 226 of the Constitution came up for discussion. In my opinion, none of these decisions throw helpful light on the question which the preliminary objection poses. Section 488 reads as under:</p><p>'488. Order for maintenance of wives and children.--(1) If any person having sufficient means neglects or refuses to maintain his wife or his legitimate or illegitimate child unable to maintain itself, the District Magistrate, a Presidency Magistrate, a Sub-Divisional Magistrate or 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, at such monthly rate, nto exceeding five hundred rupees in the whole, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate from time to time directs.</p><p> (2) Such allowance shall be payable from the date of the order, or if so ordered from the date of the application for maintenance.</p><p> (3) If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in manner hereinbefore provided for levying fines, and may sentence such person, for the whole or any part of each month's allowance remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made:</p><p> Provided that, if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if ho is satisfied that there is just ground for so doing.</p><p> If a husband has contracted marriage with another wife or keeps a mistress, it shall be considered to be just ground for his wife's refusal to live with him:</p><p> Provided, further that no warrant shall be issued for the recovery of any amount due under this direction unless application be made to the Court to levy such amount within a period of one year from the date on which it became due.</p><p> (4) No wife shall be entitled to receive an allowance from her husband under this section if she is living in adultery, or if, without any sufficient reason she refuses to live with her husband, or if they are living separately by mutual consent.</p><p> (5) On proof that any wife in whose favor an order has been made under this section is living in adultery, or that without sufficient reason she refuses to live with her husband, or that they are living separately by mutual consent, the Magistrate shall cancel the order.</p><p> (6) All evidence under this Chapter shall be taken in the presence of the husband or father, as the case may be, or, when his personal attendance is dispensed with, in the presence of his pleader, and shall be recorded in :he manner prescribed in the case of summons-cases:</p><p> Provided that if the Magistrate is satisfied that he is willfully avoiding service, or willfully neglects to attend the Court, the Magistrate may proceed to hear and determine the case ex parte. Any order so made may be set aside for good cause shown, on application made within three months from the date thereof.</p><p> (7) The Court in dealing with applications under this section shall have power to make such order as to costs as may be just.</p><p> (8) Proceedings under this section may be taken against any person in any district where he resides or is, or where he last resided with his wife or, as the case may be, the mother of the illegitimate child.' </p><p>It is obvious that it confers power to order maintenance, on District Magistrates, Presidency Magistrates, Sub-Divisional Magistrates and Magistrates of the 1st Class: Courts which are indisputably criminal Courts and nto civil Courts. Sub-section (6) provides that all evidence under this Chapter has to be taken in the presence of the husband or father, as the case may be, or when his personal attendance is dispensed with, in the presence of his pleader and it is to be recorded in the manner prescribed in the case of summons-cases. This is a further indication that the proceedings are criminal proceedings and nto civil proceedings. The argument that there is no penalty imposed by this section and the proceedings thereforee, cannto be described as 'criminal' is also unacceptable because according to Section 488(3), which provides for enforcement of orders, in certain circumstances, the person in default can be imprisoned for a term which may extend to one month or until payment, if sooner made, though I should nto be understood to hold this consideration to be conclusive on the point either way. It is obvious that the proceedings envisaged by Chapter xxxvi of the Code cannto be considered to be purely civil proceedings, though the person in default, against whom maintenance order is sought, may nto be an accused person whose examination without oath is mandatory as prescribed by Section 342 of the Code and he may be entitled to appear as a witness as well. I am aware of some conflict of judicial opinion in some old cases where on the ground that the procedure of trying maintenance applications being that of a summons case, failure to examine the person proceeded against under Section 342 of the Code, was held to vitiate the proceedings, but that conflict was set at rest by later decisions in which this section was held inapplicable to proceedings under S. 488. However, consistently all the Courts dealing with that question had assumed that the proceedings were criminal proceedings governed by the Code of Criminal Procedure, both in regard to the trial and the power of revision of the Court of the Sessions Judge and of the High Court.</p><p>2. Chapter 7-A of Vol. Iii of Rules and Orders of the Punjab High Court dealing with the maintenance cases also recites that proceedings under Section 488 of the Code of Criminal Procedure are of a criminal character and the provisions contained therein must, thereforee, be strictly followed. Keeping in view the scheme of Chapter xxxvi of the Code of Criminal Procedure and also the scheme of Articles 133 and 134 of the Constitution, I have little hesitation in holding that proceedings under Section 488, Cr. P. C., do fall within the contemplation of criminal proceedings within the meaning of Article 134. The expression 'criminal proceedings' in this Article, seems to me to be wide enough to include maintenance proceedings adjudicated upon by Magistrates initiated under Chapter xxxvI. Such maintenance proceedings are, in my view, criminal proceedings, designed by way of summary process to provide to deserted wives and neglected children, adjudication of their civil right of maintenance up to al limited amount, enforceable through criminal Courts, to avoid the notorious delays of civil proceedings, which may still be utilised for fuller relief under the general law in the ordinary civil Courts.</p><p>3. And then, what directly concerns this Court is the question of the nature of the proceedings on revision in this Court. These proceedings seem to me to be clearly criminal proceedings and I find no logical and rational basis for holding them to be civil proceedings so as to exclude the applicability of Article 134 of the Constitution. Nto only are they registered in this Court as criminal revisions but they are also presented in this Court under the Cr. P. C. and nto under the Civil P. C. The difference between the relative scope of a civil revision and of a criminal revision is well known and revision against an order under Section 488, Cr. P. C. has never been held to my knowledge to be a civil revision so as to exclude the applicability of Art. 134(1)(c) of the Constitution. The preliminary objection is, thereforee, nto easy to sustain.</p><p>4. Coming now to the merits, the learned counsel for the petitioner has very strongly argued that according to Section 488 of the Code, a separate order should have been made granting maintenance to the children. In my opinion, the question which concerns this Court in this present proceedings is nto so much as to what should have been done by the Magistrate while dealing with Section 488, Cr. P. C., but whether there is any such infirmity in the order of this Court as would justify a certificate of fitness within the contemplation of Article 134(1)(c) of the Constitution. It is nto argued, and it cannto be argued, that clause (a) or clause (b) of Article 134(1) covers this case. Clause (c) of this sub-article postulates a case in which a difficult question involving an unsettled principle requires to be finally determined by the Supreme Court. That does nto seem to be the case before me, and indeed no attempt has been made to show that there is any question of principle involved in the impugned order which requires authoritative decision by the Supreme Court. But this apart, the grant of maintenance in this case is a tentative order and it is always open to the authorities to ask for re-consideration and re-determination on account of change of circumstances. The children in these proceedings may, if they are so advised, even now apply to a competent Court under Section 488 for maintenance and if they make out a good claim to the satisfaction of the Court, I have nto the least doubt that suitable orders would be made in accordance with law. The revision on their behalf was held to be barred by time and this Court did nto consider it proper to exercise its suo motu power of revision in this regard. There is no decision on the merits against them by this Court and it has nto been shown that the impugned decision is based on any wrong principle of law which requires further examination by the Supreme Court.</p><p>5. For the foregoing reasons, this application fails and is dismissed.</p><p>6. Application dismissed.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'AIR1969Delhi298; 1969CriLJ1243; ILR1968Delhi545',
		'ratiodecidendi' => '',
		'respondent' => 'Sant Singh',
		'sub' => 'Criminal;Constitution',
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		'circuit' => null
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	(int) 0 => '<p>1. In this application for a certificate of fitness for appeal to the Supreme Court from an order made on revision by this Court in proceedings under Section 488, Cr. P. C, a preliminary objection has been raised that Article 134(1)(c) of the Constitution is inapplicable because proceedings under Section 488 are civil proceedings and nto criminal proceedings. Reliance in support of this preliminary objection has been placed on a decision of the Supreme Court in Nand Lal Misra v. K.L. Misra, : 1960CriLJ1246 . Emphasis has been laid on the observations In this Judgment that Chapter xxxvi of the Code of Criminal Procedure is a self-contained one and the relief given under it is essentially of a civil nature. From this sentence, it is sought to be argued that the proceedings under section 488 are civil proceedings and nto criminal proceedings. Reliance has also been placed on a still more recent Judgment of the Supreme Court in Narayan Row v. Ishwar Lal, : [1965]57ITR149(SC) , in which while dealing with an appeal from an order made by the Bombay High Court under Article 226 of the Constitution, in a matter pertaining to recovery of income-tax, it was observed that the proceedings were civil proceedings within the meaning of Article 133(1)(c) of the Constitution. Reference has next been made to a Full Bench decision of the Punjab High Court in Kapur Singh v. Union of India, where also the question about the nature of proceedings under Articles 133 and 226 of the Constitution came up for discussion. In my opinion, none of these decisions throw helpful light on the question which the preliminary objection poses. Section 488 reads as under:',
	(int) 1 => '<p>'488. Order for maintenance of wives and children.--(1) If any person having sufficient means neglects or refuses to maintain his wife or his legitimate or illegitimate child unable to maintain itself, the District Magistrate, a Presidency Magistrate, a Sub-Divisional Magistrate or 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, at such monthly rate, nto exceeding five hundred rupees in the whole, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate from time to time directs.',
	(int) 2 => '<p> (2) Such allowance shall be payable from the date of the order, or if so ordered from the date of the application for maintenance.',
	(int) 3 => '<p> (3) If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in manner hereinbefore provided for levying fines, and may sentence such person, for the whole or any part of each month's allowance remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made:',
	(int) 4 => '<p> Provided that, if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if ho is satisfied that there is just ground for so doing.',
	(int) 5 => '<p> If a husband has contracted marriage with another wife or keeps a mistress, it shall be considered to be just ground for his wife's refusal to live with him:',
	(int) 6 => '<p> Provided, further that no warrant shall be issued for the recovery of any amount due under this direction unless application be made to the Court to levy such amount within a period of one year from the date on which it became due.',
	(int) 7 => '<p> (4) No wife shall be entitled to receive an allowance from her husband under this section if she is living in adultery, or if, without any sufficient reason she refuses to live with her husband, or if they are living separately by mutual consent.',
	(int) 8 => '<p> (5) On proof that any wife in whose favor an order has been made under this section is living in adultery, or that without sufficient reason she refuses to live with her husband, or that they are living separately by mutual consent, the Magistrate shall cancel the order.',
	(int) 9 => '<p> (6) All evidence under this Chapter shall be taken in the presence of the husband or father, as the case may be, or, when his personal attendance is dispensed with, in the presence of his pleader, and shall be recorded in :he manner prescribed in the case of summons-cases:',
	(int) 10 => '<p> Provided that if the Magistrate is satisfied that he is willfully avoiding service, or willfully neglects to attend the Court, the Magistrate may proceed to hear and determine the case ex parte. Any order so made may be set aside for good cause shown, on application made within three months from the date thereof.',
	(int) 11 => '<p> (7) The Court in dealing with applications under this section shall have power to make such order as to costs as may be just.',
	(int) 12 => '<p> (8) Proceedings under this section may be taken against any person in any district where he resides or is, or where he last resided with his wife or, as the case may be, the mother of the illegitimate child.' ',
	(int) 13 => '<p>It is obvious that it confers power to order maintenance, on District Magistrates, Presidency Magistrates, Sub-Divisional Magistrates and Magistrates of the 1st Class: Courts which are indisputably criminal Courts and nto civil Courts. Sub-section (6) provides that all evidence under this Chapter has to be taken in the presence of the husband or father, as the case may be, or when his personal attendance is dispensed with, in the presence of his pleader and it is to be recorded in the manner prescribed in the case of summons-cases. This is a further indication that the proceedings are criminal proceedings and nto civil proceedings. The argument that there is no penalty imposed by this section and the proceedings thereforee, cannto be described as 'criminal' is also unacceptable because according to Section 488(3), which provides for enforcement of orders, in certain circumstances, the person in default can be imprisoned for a term which may extend to one month or until payment, if sooner made, though I should nto be understood to hold this consideration to be conclusive on the point either way. It is obvious that the proceedings envisaged by Chapter xxxvi of the Code cannto be considered to be purely civil proceedings, though the person in default, against whom maintenance order is sought, may nto be an accused person whose examination without oath is mandatory as prescribed by Section 342 of the Code and he may be entitled to appear as a witness as well. I am aware of some conflict of judicial opinion in some old cases where on the ground that the procedure of trying maintenance applications being that of a summons case, failure to examine the person proceeded against under Section 342 of the Code, was held to vitiate the proceedings, but that conflict was set at rest by later decisions in which this section was held inapplicable to proceedings under S. 488. However, consistently all the Courts dealing with that question had assumed that the proceedings were criminal proceedings governed by the Code of Criminal Procedure, both in regard to the trial and the power of revision of the Court of the Sessions Judge and of the High Court.',
	(int) 14 => '<p>2. Chapter 7-A of Vol. Iii of Rules and Orders of the Punjab High Court dealing with the maintenance cases also recites that proceedings under Section 488 of the Code of Criminal Procedure are of a criminal character and the provisions contained therein must, thereforee, be strictly followed. Keeping in view the scheme of Chapter xxxvi of the Code of Criminal Procedure and also the scheme of Articles 133 and 134 of the Constitution, I have little hesitation in holding that proceedings under Section 488, Cr. P. C., do fall within the contemplation of criminal proceedings within the meaning of Article 134. The expression 'criminal proceedings' in this Article, seems to me to be wide enough to include maintenance proceedings adjudicated upon by Magistrates initiated under Chapter xxxvI. Such maintenance proceedings are, in my view, criminal proceedings, designed by way of summary process to provide to deserted wives and neglected children, adjudication of their civil right of maintenance up to al limited amount, enforceable through criminal Courts, to avoid the notorious delays of civil proceedings, which may still be utilised for fuller relief under the general law in the ordinary civil Courts.',
	(int) 15 => '<p>3. And then, what directly concerns this Court is the question of the nature of the proceedings on revision in this Court. These proceedings seem to me to be clearly criminal proceedings and I find no logical and rational basis for holding them to be civil proceedings so as to exclude the applicability of Article 134 of the Constitution. Nto only are they registered in this Court as criminal revisions but they are also presented in this Court under the Cr. P. C. and nto under the Civil P. C. The difference between the relative scope of a civil revision and of a criminal revision is well known and revision against an order under Section 488, Cr. P. C. has never been held to my knowledge to be a civil revision so as to exclude the applicability of Art. 134(1)(c) of the Constitution. The preliminary objection is, thereforee, nto easy to sustain.',
	(int) 16 => '<p>4. Coming now to the merits, the learned counsel for the petitioner has very strongly argued that according to Section 488 of the Code, a separate order should have been made granting maintenance to the children. In my opinion, the question which concerns this Court in this present proceedings is nto so much as to what should have been done by the Magistrate while dealing with Section 488, Cr. P. C., but whether there is any such infirmity in the order of this Court as would justify a certificate of fitness within the contemplation of Article 134(1)(c) of the Constitution. It is nto argued, and it cannto be argued, that clause (a) or clause (b) of Article 134(1) covers this case. Clause (c) of this sub-article postulates a case in which a difficult question involving an unsettled principle requires to be finally determined by the Supreme Court. That does nto seem to be the case before me, and indeed no attempt has been made to show that there is any question of principle involved in the impugned order which requires authoritative decision by the Supreme Court. But this apart, the grant of maintenance in this case is a tentative order and it is always open to the authorities to ask for re-consideration and re-determination on account of change of circumstances. The children in these proceedings may, if they are so advised, even now apply to a competent Court under Section 488 for maintenance and if they make out a good claim to the satisfaction of the Court, I have nto the least doubt that suitable orders would be made in accordance with law. The revision on their behalf was held to be barred by time and this Court did nto consider it proper to exercise its suo motu power of revision in this regard. There is no decision on the merits against them by this Court and it has nto been shown that the impugned decision is based on any wrong principle of law which requires further examination by the Supreme Court.',
	(int) 17 => '<p>5. For the foregoing reasons, this application fails and is dismissed.',
	(int) 18 => '<p>6. Application dismissed.<p>',
	(int) 19 => '<p>'
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(5) On proof that any wife in whose favor an order has been made under this section is living in adultery, or that without sufficient reason she refuses to live with her husband, or that they are living separately by mutual consent, the Magistrate shall cancel the order.

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	'title_for_layout' => 'Harbhajan Kaur Vs Sant Singh - Citation 681173 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '681173',
			'acts' => '<a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 133, 134, 134(1) and 226; <a href="/act/133280/code-of-criminal-procedure-1898-complete-act">Code of Criminal Procedure (CrPC) , 1898</a> - Sections 342, 488, 488(3) and 488(6)',
			'appealno' => 'Criminal Misc. (SCA) No. 855 of 1968',
			'appellant' => 'Harbhajan Kaur',
			'authreffered' => '',
			'casename' => 'Harbhajan Kaur Vs. Sant Singh',
			'casenote' => ' (i) 
Criminal Procedure Code (V of 1898)- Section 488--Proceedings under--nature of--are criminal proceedings and nto Civil proceedings.; The proceedings envisaged by  Chapter xxxvI of the Code cannto be considered 
purely civil proceedings, though the person in default, against whom maintenance order is sought, may nto be an accused person, whose examination without oath is mandatory as prescribed by section 342 of the Code and he may be entitled to appear as a witness as 
well.; Chapter 7-A of Vol. III of Rules and Orders of the Punjab High Court dealing with the maintenance cases also recites that proceedings under section 488 of the Code of Criminal Procedure are of criminal character and the provisions contained therein must, thereforee, be strictly followed.; (ii) Constitution of India - Article 134--Proceedings under Section 488 within the contemplation of--expression--'Criminal proceedings'--scope of.;  That the proceedings under Section 488 Cr. P.C. do fall within the contemplation of criminal proceedings within the meaning of Article 134. 
The expression 'Criminal Proceedings' in this Article is wide enough to include maintenance proceedings adjucated upon by Magistrate initiated under Chapter xxxvI. Such maintenance proceedings are criminal proceedings designed by way of summary process to provide to deserted wives and neglected children adjudication of their civil right of maintenance up to a limited amount enforceable through criminal courts, to avoid the notorious delays of civil proceedings, which may still be utilised for fuller relief under the general law 
in the ordinary civil courts. - Section 13: [Altamas Kabir & Cyriac Joseph,JJ] Custody of child - Welfare of child vis--vis comity of Courts - The minor girl child of 3 1/2 years was brought to India by her mother. The minor girl was a citizen of U.K. being born in U.K. her parents had set up their matrimonial home in U.K. and had acquired status of permanent residents of U.K. The child with her mother was supposed to return to U.K. but the mother cancelled her tickets and remained behind in India. The husband thereupon started procededings before the High Court of Justice, Family Division. U.K. praying for an order that the minor child be made a ward of the Court and for a direction upon the wife to return the minor child to the jurisdiction of the said Court. A further direction was given for the passport and other international travel documents of the minor child to be handed over to the Solicitors of the husband. A petition seeking protection of minor child was thereupon filed by father of the husband before Delhi High Court. A direction for handing over custody of child to father of husband was also sought. The High Court considering fact that the U.K. court was already in seisin of  matter and had passed an interim order and by relying on principle of comity of Nations and Comity of Judgments of the courts of two different countries in deciding the matter directed the wife to take the child of her own to U.K.or hand it over to father of husband to be taken to U.K. as measure of interim custody and that it would be for the U.K. Court to decide the question of custody  -  Order was challenged by wife -  Held, the order of High Court was not liable to be interfered with. Although, on first impression, it would appear that the interests of the minor child would best be served if she is allowed to remain with the wife, the order of U.K. court cannot be lost sight of., The order of U.K. Court except for insisiting that the minor be returned to its jurisdiction, the English Court did not intend to separate the child from the mother until a final decision was taken with regard to the custody of the child. The ultimate decision in that regard has to be left to the English Court having regard to the nationality of the child and the fact that both the parents had worked for gain in the U.K. and had also acquired permanent resident status in the U.K. English Court has not directed that the custody of the child should be handed over to  the father but that the child should be returned to the jurisdiction of the Courts in the U.K. which would then proceed to determine as to who would be best suited to have the custody of the child. The High Court has taken into consideration both the questions relating to the Comity of Courts as well as the interest of the minor child, which, no doubt, is one of the most important considerations in matters relating to custody of a minor child.  -  Provided that, if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if ho is satisfied that there is just ground for so doing. Provided that if the Magistrate is satisfied that he is willfully avoiding service, or willfully neglects to attend the Court, the Magistrate may proceed to hear and determine the case ex parte. Any order so made may be set aside for good cause shown, on application made within three months from the date thereof. It is obvious that the proceedings envisaged by Chapter xxxvi of the Code cannto be considered to be purely civil proceedings, though the person in default, against whom maintenance order is sought, may nto be an accused person whose examination without oath is mandatory as prescribed by Section 342 of the Code and he may be entitled to appear as a witness as well. I am aware of some conflict of judicial opinion in some old cases where on the ground that the procedure of trying maintenance applications being that of a summons case, failure to examine the person proceeded against under Section 342 of the Code, was held to vitiate the proceedings, but that conflict was set at rest by later decisions in which this section was held inapplicable to proceedings under S. These proceedings seem to me to be clearly criminal proceedings and I find no logical and rational basis for holding them to be civil proceedings so as to exclude the applicability of Article 134 of the Constitution. The difference between the relative scope of a civil revision and of a criminal revision is well known and revision against an order under Section 488, Cr. The children in these proceedings may, if they are so advised, even now apply to a competent Court under Section 488 for maintenance and if they make out a good claim to the satisfaction of the Court, I have nto the least doubt that suitable orders would be made in accordance with law.',
			'caseanalysis' => null,
			'casesref' => 'Kapur Singh v. Union of India;',
			'citingcases' => '',
			'counselplain' => ' O.P. Sharma, Adv',
			'counseldef' => ' Madan Bhatia, Adv.',
			'court' => 'Delhi',
			'court_type' => 'HC',
			'decidedon' => '1968-12-17',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' I.D. Dua, C.J.',
			'judgement' => '<p style="text-align: justify;">1. In this application for a certificate of fitness for appeal to the Supreme Court from an order made on revision by this Court in proceedings under Section 488, Cr. P. C, a preliminary objection has been raised that Article 134(1)(c) of the Constitution is inapplicable because proceedings under Section 488 are civil proceedings and nto criminal proceedings. Reliance in support of this preliminary objection has been placed on a decision of the Supreme Court in Nand Lal Misra v. K.L. Misra, : 1960CriLJ1246 . Emphasis has been laid on the observations In this Judgment that Chapter xxxvi of the Code of Criminal Procedure is a self-contained one and the relief given under it is essentially of a civil nature. From this sentence, it is sought to be argued that the proceedings under section 488 are civil proceedings and nto criminal proceedings. Reliance has also been placed on a still more recent Judgment of the Supreme Court in Narayan Row v. Ishwar Lal, : [1965]57ITR149(SC) , in which while dealing with an appeal from an order made by the Bombay High Court under Article 226 of the Constitution, in a matter pertaining to recovery of income-tax, it was observed that the proceedings were civil proceedings within the meaning of Article 133(1)(c) of the Constitution. Reference has next been made to a Full Bench decision of the Punjab High Court in Kapur Singh v. Union of India, where also the question about the nature of proceedings under Articles 133 and 226 of the Constitution came up for discussion. In my opinion, none of these decisions throw helpful light on the question which the preliminary objection poses. Section 488 reads as under:</p><p style="text-align: justify;">'488. Order for maintenance of wives and children.--(1) If any person having sufficient means neglects or refuses to maintain his wife or his legitimate or illegitimate child unable to maintain itself, the District Magistrate, a Presidency Magistrate, a Sub-Divisional Magistrate or 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, at such monthly rate, nto exceeding five hundred rupees in the whole, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate from time to time directs.</p><p style="text-align: justify;"> (2) Such allowance shall be payable from the date of the order, or if so ordered from the date of the application for maintenance.</p><p style="text-align: justify;"> (3) If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in manner hereinbefore provided for levying fines, and may sentence such person, for the whole or any part of each month's allowance remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made:</p><p style="text-align: justify;"> Provided that, if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if ho is satisfied that there is just ground for so doing.</p><p style="text-align: justify;"> If a husband has contracted marriage with another wife or keeps a mistress, it shall be considered to be just ground for his wife's refusal to live with him:</p><p style="text-align: justify;"> Provided, further that no warrant shall be issued for the recovery of any amount due under this direction unless application be made to the Court to levy such amount within a period of one year from the date on which it became due.</p><p style="text-align: justify;"> (4) No wife shall be entitled to receive an allowance from her husband under this section if she is living in adultery, or if, without any sufficient reason she refuses to live with her husband, or if they are living separately by mutual consent.</p><p style="text-align: justify;"> (5) On proof that any wife in whose favor an order has been made under this section is living in adultery, or that without sufficient reason she refuses to live with her husband, or that they are living separately by mutual consent, the Magistrate shall cancel the order.</p><p style="text-align: justify;"> (6) All evidence under this Chapter shall be taken in the presence of the husband or father, as the case may be, or, when his personal attendance is dispensed with, in the presence of his pleader, and shall be recorded in :he manner prescribed in the case of summons-cases:</p><p style="text-align: justify;"> Provided that if the Magistrate is satisfied that he is willfully avoiding service, or willfully neglects to attend the Court, the Magistrate may proceed to hear and determine the case ex parte. Any order so made may be set aside for good cause shown, on application made within three months from the date thereof.</p><p style="text-align: justify;"> (7) The Court in dealing with applications under this section shall have power to make such order as to costs as may be just.</p><p style="text-align: justify;"> (8) Proceedings under this section may be taken against any person in any district where he resides or is, or where he last resided with his wife or, as the case may be, the mother of the illegitimate child.' </p><p style="text-align: justify;">It is obvious that it confers power to order maintenance, on District Magistrates, Presidency Magistrates, Sub-Divisional Magistrates and Magistrates of the 1st Class: Courts which are indisputably criminal Courts and nto civil Courts. Sub-section (6) provides that all evidence under this Chapter has to be taken in the presence of the husband or father, as the case may be, or when his personal attendance is dispensed with, in the presence of his pleader and it is to be recorded in the manner prescribed in the case of summons-cases. This is a further indication that the proceedings are criminal proceedings and nto civil proceedings. The argument that there is no penalty imposed by this section and the proceedings thereforee, cannto be described as 'criminal' is also unacceptable because according to Section 488(3), which provides for enforcement of orders, in certain circumstances, the person in default can be imprisoned for a term which may extend to one month or until payment, if sooner made, though I should nto be understood to hold this consideration to be conclusive on the point either way. It is obvious that the proceedings envisaged by Chapter xxxvi of the Code cannto be considered to be purely civil proceedings, though the person in default, against whom maintenance order is sought, may nto be an accused person whose examination without oath is mandatory as prescribed by Section 342 of the Code and he may be entitled to appear as a witness as well. I am aware of some conflict of judicial opinion in some old cases where on the ground that the procedure of trying maintenance applications being that of a summons case, failure to examine the person proceeded against under Section 342 of the Code, was held to vitiate the proceedings, but that conflict was set at rest by later decisions in which this section was held inapplicable to proceedings under S. 488. However, consistently all the Courts dealing with that question had assumed that the proceedings were criminal proceedings governed by the Code of Criminal Procedure, both in regard to the trial and the power of revision of the Court of the Sessions Judge and of the High Court.</p><p style="text-align: justify;">2. Chapter 7-A of Vol. Iii of Rules and Orders of the Punjab High Court dealing with the maintenance cases also recites that proceedings under Section 488 of the Code of Criminal Procedure are of a criminal character and the provisions contained therein must, thereforee, be strictly followed. Keeping in view the scheme of Chapter xxxvi of the Code of Criminal Procedure and also the scheme of Articles 133 and 134 of the Constitution, I have little hesitation in holding that proceedings under Section 488, Cr. P. C., do fall within the contemplation of criminal proceedings within the meaning of Article 134. The expression 'criminal proceedings' in this Article, seems to me to be wide enough to include maintenance proceedings adjudicated upon by Magistrates initiated under Chapter xxxvI. Such maintenance proceedings are, in my view, criminal proceedings, designed by way of summary process to provide to deserted wives and neglected children, adjudication of their civil right of maintenance up to al limited amount, enforceable through criminal Courts, to avoid the notorious delays of civil proceedings, which may still be utilised for fuller relief under the general law in the ordinary civil Courts.</p><p style="text-align: justify;">3. And then, what directly concerns this Court is the question of the nature of the proceedings on revision in this Court. These proceedings seem to me to be clearly criminal proceedings and I find no logical and rational basis for holding them to be civil proceedings so as to exclude the applicability of Article 134 of the Constitution. Nto only are they registered in this Court as criminal revisions but they are also presented in this Court under the Cr. P. C. and nto under the Civil P. C. The difference between the relative scope of a civil revision and of a criminal revision is well known and revision against an order under Section 488, Cr. P. C. has never been held to my knowledge to be a civil revision so as to exclude the applicability of Art. 134(1)(c) of the Constitution. The preliminary objection is, thereforee, nto easy to sustain.</p><p style="text-align: justify;">4. Coming now to the merits, the learned counsel for the petitioner has very strongly argued that according to Section 488 of the Code, a separate order should have been made granting maintenance to the children. In my opinion, the question which concerns this Court in this present proceedings is nto so much as to what should have been done by the Magistrate while dealing with Section 488, Cr. P. C., but whether there is any such infirmity in the order of this Court as would justify a certificate of fitness within the contemplation of Article 134(1)(c) of the Constitution. It is nto argued, and it cannto be argued, that clause (a) or clause (b) of Article 134(1) covers this case. Clause (c) of this sub-article postulates a case in which a difficult question involving an unsettled principle requires to be finally determined by the Supreme Court. That does nto seem to be the case before me, and indeed no attempt has been made to show that there is any question of principle involved in the impugned order which requires authoritative decision by the Supreme Court. But this apart, the grant of maintenance in this case is a tentative order and it is always open to the authorities to ask for re-consideration and re-determination on account of change of circumstances. The children in these proceedings may, if they are so advised, even now apply to a competent Court under Section 488 for maintenance and if they make out a good claim to the satisfaction of the Court, I have nto the least doubt that suitable orders would be made in accordance with law. The revision on their behalf was held to be barred by time and this Court did nto consider it proper to exercise its suo motu power of revision in this regard. There is no decision on the merits against them by this Court and it has nto been shown that the impugned decision is based on any wrong principle of law which requires further examination by the Supreme Court.</p><p style="text-align: justify;">5. For the foregoing reasons, this application fails and is dismissed.</p><p style="text-align: justify;">6. Application dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => 'AIR1969Delhi298; 1969CriLJ1243; ILR1968Delhi545',
			'ratiodecidendi' => '',
			'respondent' => 'Sant Singh',
			'sub' => 'Criminal;Constitution',
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			'circuit' => null
		)
	),
	'casename_url' => 'harbhajan-kaur-vs-sant-singh',
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$title_for_layout = 'Harbhajan Kaur Vs Sant Singh - Citation 681173 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '681173',
		'acts' => '<a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 133, 134, 134(1) and 226; <a href="/act/133280/code-of-criminal-procedure-1898-complete-act">Code of Criminal Procedure (CrPC) , 1898</a> - Sections 342, 488, 488(3) and 488(6)',
		'appealno' => 'Criminal Misc. (SCA) No. 855 of 1968',
		'appellant' => 'Harbhajan Kaur',
		'authreffered' => '',
		'casename' => 'Harbhajan Kaur Vs. Sant Singh',
		'casenote' => ' (i) 
Criminal Procedure Code (V of 1898)- Section 488--Proceedings under--nature of--are criminal proceedings and nto Civil proceedings.; The proceedings envisaged by  Chapter xxxvI of the Code cannto be considered 
purely civil proceedings, though the person in default, against whom maintenance order is sought, may nto be an accused person, whose examination without oath is mandatory as prescribed by section 342 of the Code and he may be entitled to appear as a witness as 
well.; Chapter 7-A of Vol. III of Rules and Orders of the Punjab High Court dealing with the maintenance cases also recites that proceedings under section 488 of the Code of Criminal Procedure are of criminal character and the provisions contained therein must, thereforee, be strictly followed.; (ii) Constitution of India - Article 134--Proceedings under Section 488 within the contemplation of--expression--'Criminal proceedings'--scope of.;  That the proceedings under Section 488 Cr. P.C. do fall within the contemplation of criminal proceedings within the meaning of Article 134. 
The expression 'Criminal Proceedings' in this Article is wide enough to include maintenance proceedings adjucated upon by Magistrate initiated under Chapter xxxvI. Such maintenance proceedings are criminal proceedings designed by way of summary process to provide to deserted wives and neglected children adjudication of their civil right of maintenance up to a limited amount enforceable through criminal courts, to avoid the notorious delays of civil proceedings, which may still be utilised for fuller relief under the general law 
in the ordinary civil courts. - Section 13: [Altamas Kabir & Cyriac Joseph,JJ] Custody of child - Welfare of child vis--vis comity of Courts - The minor girl child of 3 1/2 years was brought to India by her mother. The minor girl was a citizen of U.K. being born in U.K. her parents had set up their matrimonial home in U.K. and had acquired status of permanent residents of U.K. The child with her mother was supposed to return to U.K. but the mother cancelled her tickets and remained behind in India. The husband thereupon started procededings before the High Court of Justice, Family Division. U.K. praying for an order that the minor child be made a ward of the Court and for a direction upon the wife to return the minor child to the jurisdiction of the said Court. A further direction was given for the passport and other international travel documents of the minor child to be handed over to the Solicitors of the husband. A petition seeking protection of minor child was thereupon filed by father of the husband before Delhi High Court. A direction for handing over custody of child to father of husband was also sought. The High Court considering fact that the U.K. court was already in seisin of  matter and had passed an interim order and by relying on principle of comity of Nations and Comity of Judgments of the courts of two different countries in deciding the matter directed the wife to take the child of her own to U.K.or hand it over to father of husband to be taken to U.K. as measure of interim custody and that it would be for the U.K. Court to decide the question of custody  -  Order was challenged by wife -  Held, the order of High Court was not liable to be interfered with. Although, on first impression, it would appear that the interests of the minor child would best be served if she is allowed to remain with the wife, the order of U.K. court cannot be lost sight of., The order of U.K. Court except for insisiting that the minor be returned to its jurisdiction, the English Court did not intend to separate the child from the mother until a final decision was taken with regard to the custody of the child. The ultimate decision in that regard has to be left to the English Court having regard to the nationality of the child and the fact that both the parents had worked for gain in the U.K. and had also acquired permanent resident status in the U.K. English Court has not directed that the custody of the child should be handed over to  the father but that the child should be returned to the jurisdiction of the Courts in the U.K. which would then proceed to determine as to who would be best suited to have the custody of the child. The High Court has taken into consideration both the questions relating to the Comity of Courts as well as the interest of the minor child, which, no doubt, is one of the most important considerations in matters relating to custody of a minor child.  -  Provided that, if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if ho is satisfied that there is just ground for so doing. Provided that if the Magistrate is satisfied that he is willfully avoiding service, or willfully neglects to attend the Court, the Magistrate may proceed to hear and determine the case ex parte. Any order so made may be set aside for good cause shown, on application made within three months from the date thereof. It is obvious that the proceedings envisaged by Chapter xxxvi of the Code cannto be considered to be purely civil proceedings, though the person in default, against whom maintenance order is sought, may nto be an accused person whose examination without oath is mandatory as prescribed by Section 342 of the Code and he may be entitled to appear as a witness as well. I am aware of some conflict of judicial opinion in some old cases where on the ground that the procedure of trying maintenance applications being that of a summons case, failure to examine the person proceeded against under Section 342 of the Code, was held to vitiate the proceedings, but that conflict was set at rest by later decisions in which this section was held inapplicable to proceedings under S. These proceedings seem to me to be clearly criminal proceedings and I find no logical and rational basis for holding them to be civil proceedings so as to exclude the applicability of Article 134 of the Constitution. The difference between the relative scope of a civil revision and of a criminal revision is well known and revision against an order under Section 488, Cr. The children in these proceedings may, if they are so advised, even now apply to a competent Court under Section 488 for maintenance and if they make out a good claim to the satisfaction of the Court, I have nto the least doubt that suitable orders would be made in accordance with law.',
		'caseanalysis' => null,
		'casesref' => 'Kapur Singh v. Union of India;',
		'citingcases' => '',
		'counselplain' => ' O.P. Sharma, Adv',
		'counseldef' => ' Madan Bhatia, Adv.',
		'court' => 'Delhi',
		'court_type' => 'HC',
		'decidedon' => '1968-12-17',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' I.D. Dua, C.J.',
		'judgement' => '<p>1. In this application for a certificate of fitness for appeal to the Supreme Court from an order made on revision by this Court in proceedings under Section 488, Cr. P. C, a preliminary objection has been raised that Article 134(1)(c) of the Constitution is inapplicable because proceedings under Section 488 are civil proceedings and nto criminal proceedings. Reliance in support of this preliminary objection has been placed on a decision of the Supreme Court in Nand Lal Misra v. K.L. Misra, : 1960CriLJ1246 . Emphasis has been laid on the observations In this Judgment that Chapter xxxvi of the Code of Criminal Procedure is a self-contained one and the relief given under it is essentially of a civil nature. From this sentence, it is sought to be argued that the proceedings under section 488 are civil proceedings and nto criminal proceedings. Reliance has also been placed on a still more recent Judgment of the Supreme Court in Narayan Row v. Ishwar Lal, : [1965]57ITR149(SC) , in which while dealing with an appeal from an order made by the Bombay High Court under Article 226 of the Constitution, in a matter pertaining to recovery of income-tax, it was observed that the proceedings were civil proceedings within the meaning of Article 133(1)(c) of the Constitution. Reference has next been made to a Full Bench decision of the Punjab High Court in Kapur Singh v. Union of India, where also the question about the nature of proceedings under Articles 133 and 226 of the Constitution came up for discussion. In my opinion, none of these decisions throw helpful light on the question which the preliminary objection poses. Section 488 reads as under:</p><p>'488. Order for maintenance of wives and children.--(1) If any person having sufficient means neglects or refuses to maintain his wife or his legitimate or illegitimate child unable to maintain itself, the District Magistrate, a Presidency Magistrate, a Sub-Divisional Magistrate or 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, at such monthly rate, nto exceeding five hundred rupees in the whole, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate from time to time directs.</p><p> (2) Such allowance shall be payable from the date of the order, or if so ordered from the date of the application for maintenance.</p><p> (3) If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in manner hereinbefore provided for levying fines, and may sentence such person, for the whole or any part of each month's allowance remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made:</p><p> Provided that, if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if ho is satisfied that there is just ground for so doing.</p><p> If a husband has contracted marriage with another wife or keeps a mistress, it shall be considered to be just ground for his wife's refusal to live with him:</p><p> Provided, further that no warrant shall be issued for the recovery of any amount due under this direction unless application be made to the Court to levy such amount within a period of one year from the date on which it became due.</p><p> (4) No wife shall be entitled to receive an allowance from her husband under this section if she is living in adultery, or if, without any sufficient reason she refuses to live with her husband, or if they are living separately by mutual consent.</p><p> (5) On proof that any wife in whose favor an order has been made under this section is living in adultery, or that without sufficient reason she refuses to live with her husband, or that they are living separately by mutual consent, the Magistrate shall cancel the order.</p><p> (6) All evidence under this Chapter shall be taken in the presence of the husband or father, as the case may be, or, when his personal attendance is dispensed with, in the presence of his pleader, and shall be recorded in :he manner prescribed in the case of summons-cases:</p><p> Provided that if the Magistrate is satisfied that he is willfully avoiding service, or willfully neglects to attend the Court, the Magistrate may proceed to hear and determine the case ex parte. Any order so made may be set aside for good cause shown, on application made within three months from the date thereof.</p><p> (7) The Court in dealing with applications under this section shall have power to make such order as to costs as may be just.</p><p> (8) Proceedings under this section may be taken against any person in any district where he resides or is, or where he last resided with his wife or, as the case may be, the mother of the illegitimate child.' </p><p>It is obvious that it confers power to order maintenance, on District Magistrates, Presidency Magistrates, Sub-Divisional Magistrates and Magistrates of the 1st Class: Courts which are indisputably criminal Courts and nto civil Courts. Sub-section (6) provides that all evidence under this Chapter has to be taken in the presence of the husband or father, as the case may be, or when his personal attendance is dispensed with, in the presence of his pleader and it is to be recorded in the manner prescribed in the case of summons-cases. This is a further indication that the proceedings are criminal proceedings and nto civil proceedings. The argument that there is no penalty imposed by this section and the proceedings thereforee, cannto be described as 'criminal' is also unacceptable because according to Section 488(3), which provides for enforcement of orders, in certain circumstances, the person in default can be imprisoned for a term which may extend to one month or until payment, if sooner made, though I should nto be understood to hold this consideration to be conclusive on the point either way. It is obvious that the proceedings envisaged by Chapter xxxvi of the Code cannto be considered to be purely civil proceedings, though the person in default, against whom maintenance order is sought, may nto be an accused person whose examination without oath is mandatory as prescribed by Section 342 of the Code and he may be entitled to appear as a witness as well. I am aware of some conflict of judicial opinion in some old cases where on the ground that the procedure of trying maintenance applications being that of a summons case, failure to examine the person proceeded against under Section 342 of the Code, was held to vitiate the proceedings, but that conflict was set at rest by later decisions in which this section was held inapplicable to proceedings under S. 488. However, consistently all the Courts dealing with that question had assumed that the proceedings were criminal proceedings governed by the Code of Criminal Procedure, both in regard to the trial and the power of revision of the Court of the Sessions Judge and of the High Court.</p><p>2. Chapter 7-A of Vol. Iii of Rules and Orders of the Punjab High Court dealing with the maintenance cases also recites that proceedings under Section 488 of the Code of Criminal Procedure are of a criminal character and the provisions contained therein must, thereforee, be strictly followed. Keeping in view the scheme of Chapter xxxvi of the Code of Criminal Procedure and also the scheme of Articles 133 and 134 of the Constitution, I have little hesitation in holding that proceedings under Section 488, Cr. P. C., do fall within the contemplation of criminal proceedings within the meaning of Article 134. The expression 'criminal proceedings' in this Article, seems to me to be wide enough to include maintenance proceedings adjudicated upon by Magistrates initiated under Chapter xxxvI. Such maintenance proceedings are, in my view, criminal proceedings, designed by way of summary process to provide to deserted wives and neglected children, adjudication of their civil right of maintenance up to al limited amount, enforceable through criminal Courts, to avoid the notorious delays of civil proceedings, which may still be utilised for fuller relief under the general law in the ordinary civil Courts.</p><p>3. And then, what directly concerns this Court is the question of the nature of the proceedings on revision in this Court. These proceedings seem to me to be clearly criminal proceedings and I find no logical and rational basis for holding them to be civil proceedings so as to exclude the applicability of Article 134 of the Constitution. Nto only are they registered in this Court as criminal revisions but they are also presented in this Court under the Cr. P. C. and nto under the Civil P. C. The difference between the relative scope of a civil revision and of a criminal revision is well known and revision against an order under Section 488, Cr. P. C. has never been held to my knowledge to be a civil revision so as to exclude the applicability of Art. 134(1)(c) of the Constitution. The preliminary objection is, thereforee, nto easy to sustain.</p><p>4. Coming now to the merits, the learned counsel for the petitioner has very strongly argued that according to Section 488 of the Code, a separate order should have been made granting maintenance to the children. In my opinion, the question which concerns this Court in this present proceedings is nto so much as to what should have been done by the Magistrate while dealing with Section 488, Cr. P. C., but whether there is any such infirmity in the order of this Court as would justify a certificate of fitness within the contemplation of Article 134(1)(c) of the Constitution. It is nto argued, and it cannto be argued, that clause (a) or clause (b) of Article 134(1) covers this case. Clause (c) of this sub-article postulates a case in which a difficult question involving an unsettled principle requires to be finally determined by the Supreme Court. That does nto seem to be the case before me, and indeed no attempt has been made to show that there is any question of principle involved in the impugned order which requires authoritative decision by the Supreme Court. But this apart, the grant of maintenance in this case is a tentative order and it is always open to the authorities to ask for re-consideration and re-determination on account of change of circumstances. The children in these proceedings may, if they are so advised, even now apply to a competent Court under Section 488 for maintenance and if they make out a good claim to the satisfaction of the Court, I have nto the least doubt that suitable orders would be made in accordance with law. The revision on their behalf was held to be barred by time and this Court did nto consider it proper to exercise its suo motu power of revision in this regard. There is no decision on the merits against them by this Court and it has nto been shown that the impugned decision is based on any wrong principle of law which requires further examination by the Supreme Court.</p><p>5. For the foregoing reasons, this application fails and is dismissed.</p><p>6. Application dismissed.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'AIR1969Delhi298; 1969CriLJ1243; ILR1968Delhi545',
		'ratiodecidendi' => '',
		'respondent' => 'Sant Singh',
		'sub' => 'Criminal;Constitution',
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		'circuit' => null
	)
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$ctype = ' High Court'
$caseref = 'Kapur Singh v. Union of India<br>'
$content = array(
	(int) 0 => '<p>1. In this application for a certificate of fitness for appeal to the Supreme Court from an order made on revision by this Court in proceedings under Section 488, Cr. P. C, a preliminary objection has been raised that Article 134(1)(c) of the Constitution is inapplicable because proceedings under Section 488 are civil proceedings and nto criminal proceedings. Reliance in support of this preliminary objection has been placed on a decision of the Supreme Court in Nand Lal Misra v. K.L. Misra, : 1960CriLJ1246 . Emphasis has been laid on the observations In this Judgment that Chapter xxxvi of the Code of Criminal Procedure is a self-contained one and the relief given under it is essentially of a civil nature. From this sentence, it is sought to be argued that the proceedings under section 488 are civil proceedings and nto criminal proceedings. Reliance has also been placed on a still more recent Judgment of the Supreme Court in Narayan Row v. Ishwar Lal, : [1965]57ITR149(SC) , in which while dealing with an appeal from an order made by the Bombay High Court under Article 226 of the Constitution, in a matter pertaining to recovery of income-tax, it was observed that the proceedings were civil proceedings within the meaning of Article 133(1)(c) of the Constitution. Reference has next been made to a Full Bench decision of the Punjab High Court in Kapur Singh v. Union of India, where also the question about the nature of proceedings under Articles 133 and 226 of the Constitution came up for discussion. In my opinion, none of these decisions throw helpful light on the question which the preliminary objection poses. Section 488 reads as under:',
	(int) 1 => '<p>'488. Order for maintenance of wives and children.--(1) If any person having sufficient means neglects or refuses to maintain his wife or his legitimate or illegitimate child unable to maintain itself, the District Magistrate, a Presidency Magistrate, a Sub-Divisional Magistrate or 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, at such monthly rate, nto exceeding five hundred rupees in the whole, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate from time to time directs.',
	(int) 2 => '<p> (2) Such allowance shall be payable from the date of the order, or if so ordered from the date of the application for maintenance.',
	(int) 3 => '<p> (3) If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in manner hereinbefore provided for levying fines, and may sentence such person, for the whole or any part of each month's allowance remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made:',
	(int) 4 => '<p> Provided that, if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if ho is satisfied that there is just ground for so doing.',
	(int) 5 => '<p> If a husband has contracted marriage with another wife or keeps a mistress, it shall be considered to be just ground for his wife's refusal to live with him:',
	(int) 6 => '<p> Provided, further that no warrant shall be issued for the recovery of any amount due under this direction unless application be made to the Court to levy such amount within a period of one year from the date on which it became due.',
	(int) 7 => '<p> (4) No wife shall be entitled to receive an allowance from her husband under this section if she is living in adultery, or if, without any sufficient reason she refuses to live with her husband, or if they are living separately by mutual consent.',
	(int) 8 => '<p> (5) On proof that any wife in whose favor an order has been made under this section is living in adultery, or that without sufficient reason she refuses to live with her husband, or that they are living separately by mutual consent, the Magistrate shall cancel the order.',
	(int) 9 => '<p> (6) All evidence under this Chapter shall be taken in the presence of the husband or father, as the case may be, or, when his personal attendance is dispensed with, in the presence of his pleader, and shall be recorded in :he manner prescribed in the case of summons-cases:',
	(int) 10 => '<p> Provided that if the Magistrate is satisfied that he is willfully avoiding service, or willfully neglects to attend the Court, the Magistrate may proceed to hear and determine the case ex parte. Any order so made may be set aside for good cause shown, on application made within three months from the date thereof.',
	(int) 11 => '<p> (7) The Court in dealing with applications under this section shall have power to make such order as to costs as may be just.',
	(int) 12 => '<p> (8) Proceedings under this section may be taken against any person in any district where he resides or is, or where he last resided with his wife or, as the case may be, the mother of the illegitimate child.' ',
	(int) 13 => '<p>It is obvious that it confers power to order maintenance, on District Magistrates, Presidency Magistrates, Sub-Divisional Magistrates and Magistrates of the 1st Class: Courts which are indisputably criminal Courts and nto civil Courts. Sub-section (6) provides that all evidence under this Chapter has to be taken in the presence of the husband or father, as the case may be, or when his personal attendance is dispensed with, in the presence of his pleader and it is to be recorded in the manner prescribed in the case of summons-cases. This is a further indication that the proceedings are criminal proceedings and nto civil proceedings. The argument that there is no penalty imposed by this section and the proceedings thereforee, cannto be described as 'criminal' is also unacceptable because according to Section 488(3), which provides for enforcement of orders, in certain circumstances, the person in default can be imprisoned for a term which may extend to one month or until payment, if sooner made, though I should nto be understood to hold this consideration to be conclusive on the point either way. It is obvious that the proceedings envisaged by Chapter xxxvi of the Code cannto be considered to be purely civil proceedings, though the person in default, against whom maintenance order is sought, may nto be an accused person whose examination without oath is mandatory as prescribed by Section 342 of the Code and he may be entitled to appear as a witness as well. I am aware of some conflict of judicial opinion in some old cases where on the ground that the procedure of trying maintenance applications being that of a summons case, failure to examine the person proceeded against under Section 342 of the Code, was held to vitiate the proceedings, but that conflict was set at rest by later decisions in which this section was held inapplicable to proceedings under S. 488. However, consistently all the Courts dealing with that question had assumed that the proceedings were criminal proceedings governed by the Code of Criminal Procedure, both in regard to the trial and the power of revision of the Court of the Sessions Judge and of the High Court.',
	(int) 14 => '<p>2. Chapter 7-A of Vol. Iii of Rules and Orders of the Punjab High Court dealing with the maintenance cases also recites that proceedings under Section 488 of the Code of Criminal Procedure are of a criminal character and the provisions contained therein must, thereforee, be strictly followed. Keeping in view the scheme of Chapter xxxvi of the Code of Criminal Procedure and also the scheme of Articles 133 and 134 of the Constitution, I have little hesitation in holding that proceedings under Section 488, Cr. P. C., do fall within the contemplation of criminal proceedings within the meaning of Article 134. The expression 'criminal proceedings' in this Article, seems to me to be wide enough to include maintenance proceedings adjudicated upon by Magistrates initiated under Chapter xxxvI. Such maintenance proceedings are, in my view, criminal proceedings, designed by way of summary process to provide to deserted wives and neglected children, adjudication of their civil right of maintenance up to al limited amount, enforceable through criminal Courts, to avoid the notorious delays of civil proceedings, which may still be utilised for fuller relief under the general law in the ordinary civil Courts.',
	(int) 15 => '<p>3. And then, what directly concerns this Court is the question of the nature of the proceedings on revision in this Court. These proceedings seem to me to be clearly criminal proceedings and I find no logical and rational basis for holding them to be civil proceedings so as to exclude the applicability of Article 134 of the Constitution. Nto only are they registered in this Court as criminal revisions but they are also presented in this Court under the Cr. P. C. and nto under the Civil P. C. The difference between the relative scope of a civil revision and of a criminal revision is well known and revision against an order under Section 488, Cr. P. C. has never been held to my knowledge to be a civil revision so as to exclude the applicability of Art. 134(1)(c) of the Constitution. The preliminary objection is, thereforee, nto easy to sustain.',
	(int) 16 => '<p>4. Coming now to the merits, the learned counsel for the petitioner has very strongly argued that according to Section 488 of the Code, a separate order should have been made granting maintenance to the children. In my opinion, the question which concerns this Court in this present proceedings is nto so much as to what should have been done by the Magistrate while dealing with Section 488, Cr. P. C., but whether there is any such infirmity in the order of this Court as would justify a certificate of fitness within the contemplation of Article 134(1)(c) of the Constitution. It is nto argued, and it cannto be argued, that clause (a) or clause (b) of Article 134(1) covers this case. Clause (c) of this sub-article postulates a case in which a difficult question involving an unsettled principle requires to be finally determined by the Supreme Court. That does nto seem to be the case before me, and indeed no attempt has been made to show that there is any question of principle involved in the impugned order which requires authoritative decision by the Supreme Court. But this apart, the grant of maintenance in this case is a tentative order and it is always open to the authorities to ask for re-consideration and re-determination on account of change of circumstances. The children in these proceedings may, if they are so advised, even now apply to a competent Court under Section 488 for maintenance and if they make out a good claim to the satisfaction of the Court, I have nto the least doubt that suitable orders would be made in accordance with law. The revision on their behalf was held to be barred by time and this Court did nto consider it proper to exercise its suo motu power of revision in this regard. There is no decision on the merits against them by this Court and it has nto been shown that the impugned decision is based on any wrong principle of law which requires further examination by the Supreme Court.',
	(int) 17 => '<p>5. For the foregoing reasons, this application fails and is dismissed.',
	(int) 18 => '<p>6. Application dismissed.<p>',
	(int) 19 => '<p>'
)
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(6) All evidence under this Chapter shall be taken in the presence of the husband or father, as the case may be, or, when his personal attendance is dispensed with, in the presence of his pleader, and shall be recorded in :he manner prescribed in the case of summons-cases:

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	'title_for_layout' => 'Harbhajan Kaur Vs Sant Singh - Citation 681173 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '681173',
			'acts' => '<a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 133, 134, 134(1) and 226; <a href="/act/133280/code-of-criminal-procedure-1898-complete-act">Code of Criminal Procedure (CrPC) , 1898</a> - Sections 342, 488, 488(3) and 488(6)',
			'appealno' => 'Criminal Misc. (SCA) No. 855 of 1968',
			'appellant' => 'Harbhajan Kaur',
			'authreffered' => '',
			'casename' => 'Harbhajan Kaur Vs. Sant Singh',
			'casenote' => ' (i) 
Criminal Procedure Code (V of 1898)- Section 488--Proceedings under--nature of--are criminal proceedings and nto Civil proceedings.; The proceedings envisaged by  Chapter xxxvI of the Code cannto be considered 
purely civil proceedings, though the person in default, against whom maintenance order is sought, may nto be an accused person, whose examination without oath is mandatory as prescribed by section 342 of the Code and he may be entitled to appear as a witness as 
well.; Chapter 7-A of Vol. III of Rules and Orders of the Punjab High Court dealing with the maintenance cases also recites that proceedings under section 488 of the Code of Criminal Procedure are of criminal character and the provisions contained therein must, thereforee, be strictly followed.; (ii) Constitution of India - Article 134--Proceedings under Section 488 within the contemplation of--expression--'Criminal proceedings'--scope of.;  That the proceedings under Section 488 Cr. P.C. do fall within the contemplation of criminal proceedings within the meaning of Article 134. 
The expression 'Criminal Proceedings' in this Article is wide enough to include maintenance proceedings adjucated upon by Magistrate initiated under Chapter xxxvI. Such maintenance proceedings are criminal proceedings designed by way of summary process to provide to deserted wives and neglected children adjudication of their civil right of maintenance up to a limited amount enforceable through criminal courts, to avoid the notorious delays of civil proceedings, which may still be utilised for fuller relief under the general law 
in the ordinary civil courts. - Section 13: [Altamas Kabir & Cyriac Joseph,JJ] Custody of child - Welfare of child vis--vis comity of Courts - The minor girl child of 3 1/2 years was brought to India by her mother. The minor girl was a citizen of U.K. being born in U.K. her parents had set up their matrimonial home in U.K. and had acquired status of permanent residents of U.K. The child with her mother was supposed to return to U.K. but the mother cancelled her tickets and remained behind in India. The husband thereupon started procededings before the High Court of Justice, Family Division. U.K. praying for an order that the minor child be made a ward of the Court and for a direction upon the wife to return the minor child to the jurisdiction of the said Court. A further direction was given for the passport and other international travel documents of the minor child to be handed over to the Solicitors of the husband. A petition seeking protection of minor child was thereupon filed by father of the husband before Delhi High Court. A direction for handing over custody of child to father of husband was also sought. The High Court considering fact that the U.K. court was already in seisin of  matter and had passed an interim order and by relying on principle of comity of Nations and Comity of Judgments of the courts of two different countries in deciding the matter directed the wife to take the child of her own to U.K.or hand it over to father of husband to be taken to U.K. as measure of interim custody and that it would be for the U.K. Court to decide the question of custody  -  Order was challenged by wife -  Held, the order of High Court was not liable to be interfered with. Although, on first impression, it would appear that the interests of the minor child would best be served if she is allowed to remain with the wife, the order of U.K. court cannot be lost sight of., The order of U.K. Court except for insisiting that the minor be returned to its jurisdiction, the English Court did not intend to separate the child from the mother until a final decision was taken with regard to the custody of the child. The ultimate decision in that regard has to be left to the English Court having regard to the nationality of the child and the fact that both the parents had worked for gain in the U.K. and had also acquired permanent resident status in the U.K. English Court has not directed that the custody of the child should be handed over to  the father but that the child should be returned to the jurisdiction of the Courts in the U.K. which would then proceed to determine as to who would be best suited to have the custody of the child. The High Court has taken into consideration both the questions relating to the Comity of Courts as well as the interest of the minor child, which, no doubt, is one of the most important considerations in matters relating to custody of a minor child.  -  Provided that, if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if ho is satisfied that there is just ground for so doing. Provided that if the Magistrate is satisfied that he is willfully avoiding service, or willfully neglects to attend the Court, the Magistrate may proceed to hear and determine the case ex parte. Any order so made may be set aside for good cause shown, on application made within three months from the date thereof. It is obvious that the proceedings envisaged by Chapter xxxvi of the Code cannto be considered to be purely civil proceedings, though the person in default, against whom maintenance order is sought, may nto be an accused person whose examination without oath is mandatory as prescribed by Section 342 of the Code and he may be entitled to appear as a witness as well. I am aware of some conflict of judicial opinion in some old cases where on the ground that the procedure of trying maintenance applications being that of a summons case, failure to examine the person proceeded against under Section 342 of the Code, was held to vitiate the proceedings, but that conflict was set at rest by later decisions in which this section was held inapplicable to proceedings under S. These proceedings seem to me to be clearly criminal proceedings and I find no logical and rational basis for holding them to be civil proceedings so as to exclude the applicability of Article 134 of the Constitution. The difference between the relative scope of a civil revision and of a criminal revision is well known and revision against an order under Section 488, Cr. The children in these proceedings may, if they are so advised, even now apply to a competent Court under Section 488 for maintenance and if they make out a good claim to the satisfaction of the Court, I have nto the least doubt that suitable orders would be made in accordance with law.',
			'caseanalysis' => null,
			'casesref' => 'Kapur Singh v. Union of India;',
			'citingcases' => '',
			'counselplain' => ' O.P. Sharma, Adv',
			'counseldef' => ' Madan Bhatia, Adv.',
			'court' => 'Delhi',
			'court_type' => 'HC',
			'decidedon' => '1968-12-17',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' I.D. Dua, C.J.',
			'judgement' => '<p style="text-align: justify;">1. In this application for a certificate of fitness for appeal to the Supreme Court from an order made on revision by this Court in proceedings under Section 488, Cr. P. C, a preliminary objection has been raised that Article 134(1)(c) of the Constitution is inapplicable because proceedings under Section 488 are civil proceedings and nto criminal proceedings. Reliance in support of this preliminary objection has been placed on a decision of the Supreme Court in Nand Lal Misra v. K.L. Misra, : 1960CriLJ1246 . Emphasis has been laid on the observations In this Judgment that Chapter xxxvi of the Code of Criminal Procedure is a self-contained one and the relief given under it is essentially of a civil nature. From this sentence, it is sought to be argued that the proceedings under section 488 are civil proceedings and nto criminal proceedings. Reliance has also been placed on a still more recent Judgment of the Supreme Court in Narayan Row v. Ishwar Lal, : [1965]57ITR149(SC) , in which while dealing with an appeal from an order made by the Bombay High Court under Article 226 of the Constitution, in a matter pertaining to recovery of income-tax, it was observed that the proceedings were civil proceedings within the meaning of Article 133(1)(c) of the Constitution. Reference has next been made to a Full Bench decision of the Punjab High Court in Kapur Singh v. Union of India, where also the question about the nature of proceedings under Articles 133 and 226 of the Constitution came up for discussion. In my opinion, none of these decisions throw helpful light on the question which the preliminary objection poses. Section 488 reads as under:</p><p style="text-align: justify;">'488. Order for maintenance of wives and children.--(1) If any person having sufficient means neglects or refuses to maintain his wife or his legitimate or illegitimate child unable to maintain itself, the District Magistrate, a Presidency Magistrate, a Sub-Divisional Magistrate or 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, at such monthly rate, nto exceeding five hundred rupees in the whole, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate from time to time directs.</p><p style="text-align: justify;"> (2) Such allowance shall be payable from the date of the order, or if so ordered from the date of the application for maintenance.</p><p style="text-align: justify;"> (3) If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in manner hereinbefore provided for levying fines, and may sentence such person, for the whole or any part of each month's allowance remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made:</p><p style="text-align: justify;"> Provided that, if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if ho is satisfied that there is just ground for so doing.</p><p style="text-align: justify;"> If a husband has contracted marriage with another wife or keeps a mistress, it shall be considered to be just ground for his wife's refusal to live with him:</p><p style="text-align: justify;"> Provided, further that no warrant shall be issued for the recovery of any amount due under this direction unless application be made to the Court to levy such amount within a period of one year from the date on which it became due.</p><p style="text-align: justify;"> (4) No wife shall be entitled to receive an allowance from her husband under this section if she is living in adultery, or if, without any sufficient reason she refuses to live with her husband, or if they are living separately by mutual consent.</p><p style="text-align: justify;"> (5) On proof that any wife in whose favor an order has been made under this section is living in adultery, or that without sufficient reason she refuses to live with her husband, or that they are living separately by mutual consent, the Magistrate shall cancel the order.</p><p style="text-align: justify;"> (6) All evidence under this Chapter shall be taken in the presence of the husband or father, as the case may be, or, when his personal attendance is dispensed with, in the presence of his pleader, and shall be recorded in :he manner prescribed in the case of summons-cases:</p><p style="text-align: justify;"> Provided that if the Magistrate is satisfied that he is willfully avoiding service, or willfully neglects to attend the Court, the Magistrate may proceed to hear and determine the case ex parte. Any order so made may be set aside for good cause shown, on application made within three months from the date thereof.</p><p style="text-align: justify;"> (7) The Court in dealing with applications under this section shall have power to make such order as to costs as may be just.</p><p style="text-align: justify;"> (8) Proceedings under this section may be taken against any person in any district where he resides or is, or where he last resided with his wife or, as the case may be, the mother of the illegitimate child.' </p><p style="text-align: justify;">It is obvious that it confers power to order maintenance, on District Magistrates, Presidency Magistrates, Sub-Divisional Magistrates and Magistrates of the 1st Class: Courts which are indisputably criminal Courts and nto civil Courts. Sub-section (6) provides that all evidence under this Chapter has to be taken in the presence of the husband or father, as the case may be, or when his personal attendance is dispensed with, in the presence of his pleader and it is to be recorded in the manner prescribed in the case of summons-cases. This is a further indication that the proceedings are criminal proceedings and nto civil proceedings. The argument that there is no penalty imposed by this section and the proceedings thereforee, cannto be described as 'criminal' is also unacceptable because according to Section 488(3), which provides for enforcement of orders, in certain circumstances, the person in default can be imprisoned for a term which may extend to one month or until payment, if sooner made, though I should nto be understood to hold this consideration to be conclusive on the point either way. It is obvious that the proceedings envisaged by Chapter xxxvi of the Code cannto be considered to be purely civil proceedings, though the person in default, against whom maintenance order is sought, may nto be an accused person whose examination without oath is mandatory as prescribed by Section 342 of the Code and he may be entitled to appear as a witness as well. I am aware of some conflict of judicial opinion in some old cases where on the ground that the procedure of trying maintenance applications being that of a summons case, failure to examine the person proceeded against under Section 342 of the Code, was held to vitiate the proceedings, but that conflict was set at rest by later decisions in which this section was held inapplicable to proceedings under S. 488. However, consistently all the Courts dealing with that question had assumed that the proceedings were criminal proceedings governed by the Code of Criminal Procedure, both in regard to the trial and the power of revision of the Court of the Sessions Judge and of the High Court.</p><p style="text-align: justify;">2. Chapter 7-A of Vol. Iii of Rules and Orders of the Punjab High Court dealing with the maintenance cases also recites that proceedings under Section 488 of the Code of Criminal Procedure are of a criminal character and the provisions contained therein must, thereforee, be strictly followed. Keeping in view the scheme of Chapter xxxvi of the Code of Criminal Procedure and also the scheme of Articles 133 and 134 of the Constitution, I have little hesitation in holding that proceedings under Section 488, Cr. P. C., do fall within the contemplation of criminal proceedings within the meaning of Article 134. The expression 'criminal proceedings' in this Article, seems to me to be wide enough to include maintenance proceedings adjudicated upon by Magistrates initiated under Chapter xxxvI. Such maintenance proceedings are, in my view, criminal proceedings, designed by way of summary process to provide to deserted wives and neglected children, adjudication of their civil right of maintenance up to al limited amount, enforceable through criminal Courts, to avoid the notorious delays of civil proceedings, which may still be utilised for fuller relief under the general law in the ordinary civil Courts.</p><p style="text-align: justify;">3. And then, what directly concerns this Court is the question of the nature of the proceedings on revision in this Court. These proceedings seem to me to be clearly criminal proceedings and I find no logical and rational basis for holding them to be civil proceedings so as to exclude the applicability of Article 134 of the Constitution. Nto only are they registered in this Court as criminal revisions but they are also presented in this Court under the Cr. P. C. and nto under the Civil P. C. The difference between the relative scope of a civil revision and of a criminal revision is well known and revision against an order under Section 488, Cr. P. C. has never been held to my knowledge to be a civil revision so as to exclude the applicability of Art. 134(1)(c) of the Constitution. The preliminary objection is, thereforee, nto easy to sustain.</p><p style="text-align: justify;">4. Coming now to the merits, the learned counsel for the petitioner has very strongly argued that according to Section 488 of the Code, a separate order should have been made granting maintenance to the children. In my opinion, the question which concerns this Court in this present proceedings is nto so much as to what should have been done by the Magistrate while dealing with Section 488, Cr. P. C., but whether there is any such infirmity in the order of this Court as would justify a certificate of fitness within the contemplation of Article 134(1)(c) of the Constitution. It is nto argued, and it cannto be argued, that clause (a) or clause (b) of Article 134(1) covers this case. Clause (c) of this sub-article postulates a case in which a difficult question involving an unsettled principle requires to be finally determined by the Supreme Court. That does nto seem to be the case before me, and indeed no attempt has been made to show that there is any question of principle involved in the impugned order which requires authoritative decision by the Supreme Court. But this apart, the grant of maintenance in this case is a tentative order and it is always open to the authorities to ask for re-consideration and re-determination on account of change of circumstances. The children in these proceedings may, if they are so advised, even now apply to a competent Court under Section 488 for maintenance and if they make out a good claim to the satisfaction of the Court, I have nto the least doubt that suitable orders would be made in accordance with law. The revision on their behalf was held to be barred by time and this Court did nto consider it proper to exercise its suo motu power of revision in this regard. There is no decision on the merits against them by this Court and it has nto been shown that the impugned decision is based on any wrong principle of law which requires further examination by the Supreme Court.</p><p style="text-align: justify;">5. For the foregoing reasons, this application fails and is dismissed.</p><p style="text-align: justify;">6. Application dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => 'AIR1969Delhi298; 1969CriLJ1243; ILR1968Delhi545',
			'ratiodecidendi' => '',
			'respondent' => 'Sant Singh',
			'sub' => 'Criminal;Constitution',
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			'circuit' => null
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$title_for_layout = 'Harbhajan Kaur Vs Sant Singh - Citation 681173 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '681173',
		'acts' => '<a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 133, 134, 134(1) and 226; <a href="/act/133280/code-of-criminal-procedure-1898-complete-act">Code of Criminal Procedure (CrPC) , 1898</a> - Sections 342, 488, 488(3) and 488(6)',
		'appealno' => 'Criminal Misc. (SCA) No. 855 of 1968',
		'appellant' => 'Harbhajan Kaur',
		'authreffered' => '',
		'casename' => 'Harbhajan Kaur Vs. Sant Singh',
		'casenote' => ' (i) 
Criminal Procedure Code (V of 1898)- Section 488--Proceedings under--nature of--are criminal proceedings and nto Civil proceedings.; The proceedings envisaged by  Chapter xxxvI of the Code cannto be considered 
purely civil proceedings, though the person in default, against whom maintenance order is sought, may nto be an accused person, whose examination without oath is mandatory as prescribed by section 342 of the Code and he may be entitled to appear as a witness as 
well.; Chapter 7-A of Vol. III of Rules and Orders of the Punjab High Court dealing with the maintenance cases also recites that proceedings under section 488 of the Code of Criminal Procedure are of criminal character and the provisions contained therein must, thereforee, be strictly followed.; (ii) Constitution of India - Article 134--Proceedings under Section 488 within the contemplation of--expression--'Criminal proceedings'--scope of.;  That the proceedings under Section 488 Cr. P.C. do fall within the contemplation of criminal proceedings within the meaning of Article 134. 
The expression 'Criminal Proceedings' in this Article is wide enough to include maintenance proceedings adjucated upon by Magistrate initiated under Chapter xxxvI. Such maintenance proceedings are criminal proceedings designed by way of summary process to provide to deserted wives and neglected children adjudication of their civil right of maintenance up to a limited amount enforceable through criminal courts, to avoid the notorious delays of civil proceedings, which may still be utilised for fuller relief under the general law 
in the ordinary civil courts. - Section 13: [Altamas Kabir & Cyriac Joseph,JJ] Custody of child - Welfare of child vis--vis comity of Courts - The minor girl child of 3 1/2 years was brought to India by her mother. The minor girl was a citizen of U.K. being born in U.K. her parents had set up their matrimonial home in U.K. and had acquired status of permanent residents of U.K. The child with her mother was supposed to return to U.K. but the mother cancelled her tickets and remained behind in India. The husband thereupon started procededings before the High Court of Justice, Family Division. U.K. praying for an order that the minor child be made a ward of the Court and for a direction upon the wife to return the minor child to the jurisdiction of the said Court. A further direction was given for the passport and other international travel documents of the minor child to be handed over to the Solicitors of the husband. A petition seeking protection of minor child was thereupon filed by father of the husband before Delhi High Court. A direction for handing over custody of child to father of husband was also sought. The High Court considering fact that the U.K. court was already in seisin of  matter and had passed an interim order and by relying on principle of comity of Nations and Comity of Judgments of the courts of two different countries in deciding the matter directed the wife to take the child of her own to U.K.or hand it over to father of husband to be taken to U.K. as measure of interim custody and that it would be for the U.K. Court to decide the question of custody  -  Order was challenged by wife -  Held, the order of High Court was not liable to be interfered with. Although, on first impression, it would appear that the interests of the minor child would best be served if she is allowed to remain with the wife, the order of U.K. court cannot be lost sight of., The order of U.K. Court except for insisiting that the minor be returned to its jurisdiction, the English Court did not intend to separate the child from the mother until a final decision was taken with regard to the custody of the child. The ultimate decision in that regard has to be left to the English Court having regard to the nationality of the child and the fact that both the parents had worked for gain in the U.K. and had also acquired permanent resident status in the U.K. English Court has not directed that the custody of the child should be handed over to  the father but that the child should be returned to the jurisdiction of the Courts in the U.K. which would then proceed to determine as to who would be best suited to have the custody of the child. The High Court has taken into consideration both the questions relating to the Comity of Courts as well as the interest of the minor child, which, no doubt, is one of the most important considerations in matters relating to custody of a minor child.  -  Provided that, if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if ho is satisfied that there is just ground for so doing. Provided that if the Magistrate is satisfied that he is willfully avoiding service, or willfully neglects to attend the Court, the Magistrate may proceed to hear and determine the case ex parte. Any order so made may be set aside for good cause shown, on application made within three months from the date thereof. It is obvious that the proceedings envisaged by Chapter xxxvi of the Code cannto be considered to be purely civil proceedings, though the person in default, against whom maintenance order is sought, may nto be an accused person whose examination without oath is mandatory as prescribed by Section 342 of the Code and he may be entitled to appear as a witness as well. I am aware of some conflict of judicial opinion in some old cases where on the ground that the procedure of trying maintenance applications being that of a summons case, failure to examine the person proceeded against under Section 342 of the Code, was held to vitiate the proceedings, but that conflict was set at rest by later decisions in which this section was held inapplicable to proceedings under S. These proceedings seem to me to be clearly criminal proceedings and I find no logical and rational basis for holding them to be civil proceedings so as to exclude the applicability of Article 134 of the Constitution. The difference between the relative scope of a civil revision and of a criminal revision is well known and revision against an order under Section 488, Cr. The children in these proceedings may, if they are so advised, even now apply to a competent Court under Section 488 for maintenance and if they make out a good claim to the satisfaction of the Court, I have nto the least doubt that suitable orders would be made in accordance with law.',
		'caseanalysis' => null,
		'casesref' => 'Kapur Singh v. Union of India;',
		'citingcases' => '',
		'counselplain' => ' O.P. Sharma, Adv',
		'counseldef' => ' Madan Bhatia, Adv.',
		'court' => 'Delhi',
		'court_type' => 'HC',
		'decidedon' => '1968-12-17',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' I.D. Dua, C.J.',
		'judgement' => '<p>1. In this application for a certificate of fitness for appeal to the Supreme Court from an order made on revision by this Court in proceedings under Section 488, Cr. P. C, a preliminary objection has been raised that Article 134(1)(c) of the Constitution is inapplicable because proceedings under Section 488 are civil proceedings and nto criminal proceedings. Reliance in support of this preliminary objection has been placed on a decision of the Supreme Court in Nand Lal Misra v. K.L. Misra, : 1960CriLJ1246 . Emphasis has been laid on the observations In this Judgment that Chapter xxxvi of the Code of Criminal Procedure is a self-contained one and the relief given under it is essentially of a civil nature. From this sentence, it is sought to be argued that the proceedings under section 488 are civil proceedings and nto criminal proceedings. Reliance has also been placed on a still more recent Judgment of the Supreme Court in Narayan Row v. Ishwar Lal, : [1965]57ITR149(SC) , in which while dealing with an appeal from an order made by the Bombay High Court under Article 226 of the Constitution, in a matter pertaining to recovery of income-tax, it was observed that the proceedings were civil proceedings within the meaning of Article 133(1)(c) of the Constitution. Reference has next been made to a Full Bench decision of the Punjab High Court in Kapur Singh v. Union of India, where also the question about the nature of proceedings under Articles 133 and 226 of the Constitution came up for discussion. In my opinion, none of these decisions throw helpful light on the question which the preliminary objection poses. Section 488 reads as under:</p><p>'488. Order for maintenance of wives and children.--(1) If any person having sufficient means neglects or refuses to maintain his wife or his legitimate or illegitimate child unable to maintain itself, the District Magistrate, a Presidency Magistrate, a Sub-Divisional Magistrate or 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, at such monthly rate, nto exceeding five hundred rupees in the whole, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate from time to time directs.</p><p> (2) Such allowance shall be payable from the date of the order, or if so ordered from the date of the application for maintenance.</p><p> (3) If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in manner hereinbefore provided for levying fines, and may sentence such person, for the whole or any part of each month's allowance remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made:</p><p> Provided that, if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if ho is satisfied that there is just ground for so doing.</p><p> If a husband has contracted marriage with another wife or keeps a mistress, it shall be considered to be just ground for his wife's refusal to live with him:</p><p> Provided, further that no warrant shall be issued for the recovery of any amount due under this direction unless application be made to the Court to levy such amount within a period of one year from the date on which it became due.</p><p> (4) No wife shall be entitled to receive an allowance from her husband under this section if she is living in adultery, or if, without any sufficient reason she refuses to live with her husband, or if they are living separately by mutual consent.</p><p> (5) On proof that any wife in whose favor an order has been made under this section is living in adultery, or that without sufficient reason she refuses to live with her husband, or that they are living separately by mutual consent, the Magistrate shall cancel the order.</p><p> (6) All evidence under this Chapter shall be taken in the presence of the husband or father, as the case may be, or, when his personal attendance is dispensed with, in the presence of his pleader, and shall be recorded in :he manner prescribed in the case of summons-cases:</p><p> Provided that if the Magistrate is satisfied that he is willfully avoiding service, or willfully neglects to attend the Court, the Magistrate may proceed to hear and determine the case ex parte. Any order so made may be set aside for good cause shown, on application made within three months from the date thereof.</p><p> (7) The Court in dealing with applications under this section shall have power to make such order as to costs as may be just.</p><p> (8) Proceedings under this section may be taken against any person in any district where he resides or is, or where he last resided with his wife or, as the case may be, the mother of the illegitimate child.' </p><p>It is obvious that it confers power to order maintenance, on District Magistrates, Presidency Magistrates, Sub-Divisional Magistrates and Magistrates of the 1st Class: Courts which are indisputably criminal Courts and nto civil Courts. Sub-section (6) provides that all evidence under this Chapter has to be taken in the presence of the husband or father, as the case may be, or when his personal attendance is dispensed with, in the presence of his pleader and it is to be recorded in the manner prescribed in the case of summons-cases. This is a further indication that the proceedings are criminal proceedings and nto civil proceedings. The argument that there is no penalty imposed by this section and the proceedings thereforee, cannto be described as 'criminal' is also unacceptable because according to Section 488(3), which provides for enforcement of orders, in certain circumstances, the person in default can be imprisoned for a term which may extend to one month or until payment, if sooner made, though I should nto be understood to hold this consideration to be conclusive on the point either way. It is obvious that the proceedings envisaged by Chapter xxxvi of the Code cannto be considered to be purely civil proceedings, though the person in default, against whom maintenance order is sought, may nto be an accused person whose examination without oath is mandatory as prescribed by Section 342 of the Code and he may be entitled to appear as a witness as well. I am aware of some conflict of judicial opinion in some old cases where on the ground that the procedure of trying maintenance applications being that of a summons case, failure to examine the person proceeded against under Section 342 of the Code, was held to vitiate the proceedings, but that conflict was set at rest by later decisions in which this section was held inapplicable to proceedings under S. 488. However, consistently all the Courts dealing with that question had assumed that the proceedings were criminal proceedings governed by the Code of Criminal Procedure, both in regard to the trial and the power of revision of the Court of the Sessions Judge and of the High Court.</p><p>2. Chapter 7-A of Vol. Iii of Rules and Orders of the Punjab High Court dealing with the maintenance cases also recites that proceedings under Section 488 of the Code of Criminal Procedure are of a criminal character and the provisions contained therein must, thereforee, be strictly followed. Keeping in view the scheme of Chapter xxxvi of the Code of Criminal Procedure and also the scheme of Articles 133 and 134 of the Constitution, I have little hesitation in holding that proceedings under Section 488, Cr. P. C., do fall within the contemplation of criminal proceedings within the meaning of Article 134. The expression 'criminal proceedings' in this Article, seems to me to be wide enough to include maintenance proceedings adjudicated upon by Magistrates initiated under Chapter xxxvI. Such maintenance proceedings are, in my view, criminal proceedings, designed by way of summary process to provide to deserted wives and neglected children, adjudication of their civil right of maintenance up to al limited amount, enforceable through criminal Courts, to avoid the notorious delays of civil proceedings, which may still be utilised for fuller relief under the general law in the ordinary civil Courts.</p><p>3. And then, what directly concerns this Court is the question of the nature of the proceedings on revision in this Court. These proceedings seem to me to be clearly criminal proceedings and I find no logical and rational basis for holding them to be civil proceedings so as to exclude the applicability of Article 134 of the Constitution. Nto only are they registered in this Court as criminal revisions but they are also presented in this Court under the Cr. P. C. and nto under the Civil P. C. The difference between the relative scope of a civil revision and of a criminal revision is well known and revision against an order under Section 488, Cr. P. C. has never been held to my knowledge to be a civil revision so as to exclude the applicability of Art. 134(1)(c) of the Constitution. The preliminary objection is, thereforee, nto easy to sustain.</p><p>4. Coming now to the merits, the learned counsel for the petitioner has very strongly argued that according to Section 488 of the Code, a separate order should have been made granting maintenance to the children. In my opinion, the question which concerns this Court in this present proceedings is nto so much as to what should have been done by the Magistrate while dealing with Section 488, Cr. P. C., but whether there is any such infirmity in the order of this Court as would justify a certificate of fitness within the contemplation of Article 134(1)(c) of the Constitution. It is nto argued, and it cannto be argued, that clause (a) or clause (b) of Article 134(1) covers this case. Clause (c) of this sub-article postulates a case in which a difficult question involving an unsettled principle requires to be finally determined by the Supreme Court. That does nto seem to be the case before me, and indeed no attempt has been made to show that there is any question of principle involved in the impugned order which requires authoritative decision by the Supreme Court. But this apart, the grant of maintenance in this case is a tentative order and it is always open to the authorities to ask for re-consideration and re-determination on account of change of circumstances. The children in these proceedings may, if they are so advised, even now apply to a competent Court under Section 488 for maintenance and if they make out a good claim to the satisfaction of the Court, I have nto the least doubt that suitable orders would be made in accordance with law. The revision on their behalf was held to be barred by time and this Court did nto consider it proper to exercise its suo motu power of revision in this regard. There is no decision on the merits against them by this Court and it has nto been shown that the impugned decision is based on any wrong principle of law which requires further examination by the Supreme Court.</p><p>5. For the foregoing reasons, this application fails and is dismissed.</p><p>6. Application dismissed.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'AIR1969Delhi298; 1969CriLJ1243; ILR1968Delhi545',
		'ratiodecidendi' => '',
		'respondent' => 'Sant Singh',
		'sub' => 'Criminal;Constitution',
		'link' => null,
		'circuit' => null
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	(int) 0 => '<p>1. In this application for a certificate of fitness for appeal to the Supreme Court from an order made on revision by this Court in proceedings under Section 488, Cr. P. C, a preliminary objection has been raised that Article 134(1)(c) of the Constitution is inapplicable because proceedings under Section 488 are civil proceedings and nto criminal proceedings. Reliance in support of this preliminary objection has been placed on a decision of the Supreme Court in Nand Lal Misra v. K.L. Misra, : 1960CriLJ1246 . Emphasis has been laid on the observations In this Judgment that Chapter xxxvi of the Code of Criminal Procedure is a self-contained one and the relief given under it is essentially of a civil nature. From this sentence, it is sought to be argued that the proceedings under section 488 are civil proceedings and nto criminal proceedings. Reliance has also been placed on a still more recent Judgment of the Supreme Court in Narayan Row v. Ishwar Lal, : [1965]57ITR149(SC) , in which while dealing with an appeal from an order made by the Bombay High Court under Article 226 of the Constitution, in a matter pertaining to recovery of income-tax, it was observed that the proceedings were civil proceedings within the meaning of Article 133(1)(c) of the Constitution. Reference has next been made to a Full Bench decision of the Punjab High Court in Kapur Singh v. Union of India, where also the question about the nature of proceedings under Articles 133 and 226 of the Constitution came up for discussion. In my opinion, none of these decisions throw helpful light on the question which the preliminary objection poses. Section 488 reads as under:',
	(int) 1 => '<p>'488. Order for maintenance of wives and children.--(1) If any person having sufficient means neglects or refuses to maintain his wife or his legitimate or illegitimate child unable to maintain itself, the District Magistrate, a Presidency Magistrate, a Sub-Divisional Magistrate or 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, at such monthly rate, nto exceeding five hundred rupees in the whole, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate from time to time directs.',
	(int) 2 => '<p> (2) Such allowance shall be payable from the date of the order, or if so ordered from the date of the application for maintenance.',
	(int) 3 => '<p> (3) If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in manner hereinbefore provided for levying fines, and may sentence such person, for the whole or any part of each month's allowance remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made:',
	(int) 4 => '<p> Provided that, if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if ho is satisfied that there is just ground for so doing.',
	(int) 5 => '<p> If a husband has contracted marriage with another wife or keeps a mistress, it shall be considered to be just ground for his wife's refusal to live with him:',
	(int) 6 => '<p> Provided, further that no warrant shall be issued for the recovery of any amount due under this direction unless application be made to the Court to levy such amount within a period of one year from the date on which it became due.',
	(int) 7 => '<p> (4) No wife shall be entitled to receive an allowance from her husband under this section if she is living in adultery, or if, without any sufficient reason she refuses to live with her husband, or if they are living separately by mutual consent.',
	(int) 8 => '<p> (5) On proof that any wife in whose favor an order has been made under this section is living in adultery, or that without sufficient reason she refuses to live with her husband, or that they are living separately by mutual consent, the Magistrate shall cancel the order.',
	(int) 9 => '<p> (6) All evidence under this Chapter shall be taken in the presence of the husband or father, as the case may be, or, when his personal attendance is dispensed with, in the presence of his pleader, and shall be recorded in :he manner prescribed in the case of summons-cases:',
	(int) 10 => '<p> Provided that if the Magistrate is satisfied that he is willfully avoiding service, or willfully neglects to attend the Court, the Magistrate may proceed to hear and determine the case ex parte. Any order so made may be set aside for good cause shown, on application made within three months from the date thereof.',
	(int) 11 => '<p> (7) The Court in dealing with applications under this section shall have power to make such order as to costs as may be just.',
	(int) 12 => '<p> (8) Proceedings under this section may be taken against any person in any district where he resides or is, or where he last resided with his wife or, as the case may be, the mother of the illegitimate child.' ',
	(int) 13 => '<p>It is obvious that it confers power to order maintenance, on District Magistrates, Presidency Magistrates, Sub-Divisional Magistrates and Magistrates of the 1st Class: Courts which are indisputably criminal Courts and nto civil Courts. Sub-section (6) provides that all evidence under this Chapter has to be taken in the presence of the husband or father, as the case may be, or when his personal attendance is dispensed with, in the presence of his pleader and it is to be recorded in the manner prescribed in the case of summons-cases. This is a further indication that the proceedings are criminal proceedings and nto civil proceedings. The argument that there is no penalty imposed by this section and the proceedings thereforee, cannto be described as 'criminal' is also unacceptable because according to Section 488(3), which provides for enforcement of orders, in certain circumstances, the person in default can be imprisoned for a term which may extend to one month or until payment, if sooner made, though I should nto be understood to hold this consideration to be conclusive on the point either way. It is obvious that the proceedings envisaged by Chapter xxxvi of the Code cannto be considered to be purely civil proceedings, though the person in default, against whom maintenance order is sought, may nto be an accused person whose examination without oath is mandatory as prescribed by Section 342 of the Code and he may be entitled to appear as a witness as well. I am aware of some conflict of judicial opinion in some old cases where on the ground that the procedure of trying maintenance applications being that of a summons case, failure to examine the person proceeded against under Section 342 of the Code, was held to vitiate the proceedings, but that conflict was set at rest by later decisions in which this section was held inapplicable to proceedings under S. 488. However, consistently all the Courts dealing with that question had assumed that the proceedings were criminal proceedings governed by the Code of Criminal Procedure, both in regard to the trial and the power of revision of the Court of the Sessions Judge and of the High Court.',
	(int) 14 => '<p>2. Chapter 7-A of Vol. Iii of Rules and Orders of the Punjab High Court dealing with the maintenance cases also recites that proceedings under Section 488 of the Code of Criminal Procedure are of a criminal character and the provisions contained therein must, thereforee, be strictly followed. Keeping in view the scheme of Chapter xxxvi of the Code of Criminal Procedure and also the scheme of Articles 133 and 134 of the Constitution, I have little hesitation in holding that proceedings under Section 488, Cr. P. C., do fall within the contemplation of criminal proceedings within the meaning of Article 134. The expression 'criminal proceedings' in this Article, seems to me to be wide enough to include maintenance proceedings adjudicated upon by Magistrates initiated under Chapter xxxvI. Such maintenance proceedings are, in my view, criminal proceedings, designed by way of summary process to provide to deserted wives and neglected children, adjudication of their civil right of maintenance up to al limited amount, enforceable through criminal Courts, to avoid the notorious delays of civil proceedings, which may still be utilised for fuller relief under the general law in the ordinary civil Courts.',
	(int) 15 => '<p>3. And then, what directly concerns this Court is the question of the nature of the proceedings on revision in this Court. These proceedings seem to me to be clearly criminal proceedings and I find no logical and rational basis for holding them to be civil proceedings so as to exclude the applicability of Article 134 of the Constitution. Nto only are they registered in this Court as criminal revisions but they are also presented in this Court under the Cr. P. C. and nto under the Civil P. C. The difference between the relative scope of a civil revision and of a criminal revision is well known and revision against an order under Section 488, Cr. P. C. has never been held to my knowledge to be a civil revision so as to exclude the applicability of Art. 134(1)(c) of the Constitution. The preliminary objection is, thereforee, nto easy to sustain.',
	(int) 16 => '<p>4. Coming now to the merits, the learned counsel for the petitioner has very strongly argued that according to Section 488 of the Code, a separate order should have been made granting maintenance to the children. In my opinion, the question which concerns this Court in this present proceedings is nto so much as to what should have been done by the Magistrate while dealing with Section 488, Cr. P. C., but whether there is any such infirmity in the order of this Court as would justify a certificate of fitness within the contemplation of Article 134(1)(c) of the Constitution. It is nto argued, and it cannto be argued, that clause (a) or clause (b) of Article 134(1) covers this case. Clause (c) of this sub-article postulates a case in which a difficult question involving an unsettled principle requires to be finally determined by the Supreme Court. That does nto seem to be the case before me, and indeed no attempt has been made to show that there is any question of principle involved in the impugned order which requires authoritative decision by the Supreme Court. But this apart, the grant of maintenance in this case is a tentative order and it is always open to the authorities to ask for re-consideration and re-determination on account of change of circumstances. The children in these proceedings may, if they are so advised, even now apply to a competent Court under Section 488 for maintenance and if they make out a good claim to the satisfaction of the Court, I have nto the least doubt that suitable orders would be made in accordance with law. The revision on their behalf was held to be barred by time and this Court did nto consider it proper to exercise its suo motu power of revision in this regard. There is no decision on the merits against them by this Court and it has nto been shown that the impugned decision is based on any wrong principle of law which requires further examination by the Supreme Court.',
	(int) 17 => '<p>5. For the foregoing reasons, this application fails and is dismissed.',
	(int) 18 => '<p>6. Application dismissed.<p>',
	(int) 19 => '<p>'
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Provided that if the Magistrate is satisfied that he is willfully avoiding service, or willfully neglects to attend the Court, the Magistrate may proceed to hear and determine the case ex parte. Any order so made may be set aside for good cause shown, on application made within three months from the date thereof.

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	'title_for_layout' => 'Harbhajan Kaur Vs Sant Singh - Citation 681173 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '681173',
			'acts' => '<a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 133, 134, 134(1) and 226; <a href="/act/133280/code-of-criminal-procedure-1898-complete-act">Code of Criminal Procedure (CrPC) , 1898</a> - Sections 342, 488, 488(3) and 488(6)',
			'appealno' => 'Criminal Misc. (SCA) No. 855 of 1968',
			'appellant' => 'Harbhajan Kaur',
			'authreffered' => '',
			'casename' => 'Harbhajan Kaur Vs. Sant Singh',
			'casenote' => ' (i) 
Criminal Procedure Code (V of 1898)- Section 488--Proceedings under--nature of--are criminal proceedings and nto Civil proceedings.; The proceedings envisaged by  Chapter xxxvI of the Code cannto be considered 
purely civil proceedings, though the person in default, against whom maintenance order is sought, may nto be an accused person, whose examination without oath is mandatory as prescribed by section 342 of the Code and he may be entitled to appear as a witness as 
well.; Chapter 7-A of Vol. III of Rules and Orders of the Punjab High Court dealing with the maintenance cases also recites that proceedings under section 488 of the Code of Criminal Procedure are of criminal character and the provisions contained therein must, thereforee, be strictly followed.; (ii) Constitution of India - Article 134--Proceedings under Section 488 within the contemplation of--expression--'Criminal proceedings'--scope of.;  That the proceedings under Section 488 Cr. P.C. do fall within the contemplation of criminal proceedings within the meaning of Article 134. 
The expression 'Criminal Proceedings' in this Article is wide enough to include maintenance proceedings adjucated upon by Magistrate initiated under Chapter xxxvI. Such maintenance proceedings are criminal proceedings designed by way of summary process to provide to deserted wives and neglected children adjudication of their civil right of maintenance up to a limited amount enforceable through criminal courts, to avoid the notorious delays of civil proceedings, which may still be utilised for fuller relief under the general law 
in the ordinary civil courts. - Section 13: [Altamas Kabir & Cyriac Joseph,JJ] Custody of child - Welfare of child vis--vis comity of Courts - The minor girl child of 3 1/2 years was brought to India by her mother. The minor girl was a citizen of U.K. being born in U.K. her parents had set up their matrimonial home in U.K. and had acquired status of permanent residents of U.K. The child with her mother was supposed to return to U.K. but the mother cancelled her tickets and remained behind in India. The husband thereupon started procededings before the High Court of Justice, Family Division. U.K. praying for an order that the minor child be made a ward of the Court and for a direction upon the wife to return the minor child to the jurisdiction of the said Court. A further direction was given for the passport and other international travel documents of the minor child to be handed over to the Solicitors of the husband. A petition seeking protection of minor child was thereupon filed by father of the husband before Delhi High Court. A direction for handing over custody of child to father of husband was also sought. The High Court considering fact that the U.K. court was already in seisin of  matter and had passed an interim order and by relying on principle of comity of Nations and Comity of Judgments of the courts of two different countries in deciding the matter directed the wife to take the child of her own to U.K.or hand it over to father of husband to be taken to U.K. as measure of interim custody and that it would be for the U.K. Court to decide the question of custody  -  Order was challenged by wife -  Held, the order of High Court was not liable to be interfered with. Although, on first impression, it would appear that the interests of the minor child would best be served if she is allowed to remain with the wife, the order of U.K. court cannot be lost sight of., The order of U.K. Court except for insisiting that the minor be returned to its jurisdiction, the English Court did not intend to separate the child from the mother until a final decision was taken with regard to the custody of the child. The ultimate decision in that regard has to be left to the English Court having regard to the nationality of the child and the fact that both the parents had worked for gain in the U.K. and had also acquired permanent resident status in the U.K. English Court has not directed that the custody of the child should be handed over to  the father but that the child should be returned to the jurisdiction of the Courts in the U.K. which would then proceed to determine as to who would be best suited to have the custody of the child. The High Court has taken into consideration both the questions relating to the Comity of Courts as well as the interest of the minor child, which, no doubt, is one of the most important considerations in matters relating to custody of a minor child.  -  Provided that, if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if ho is satisfied that there is just ground for so doing. Provided that if the Magistrate is satisfied that he is willfully avoiding service, or willfully neglects to attend the Court, the Magistrate may proceed to hear and determine the case ex parte. Any order so made may be set aside for good cause shown, on application made within three months from the date thereof. It is obvious that the proceedings envisaged by Chapter xxxvi of the Code cannto be considered to be purely civil proceedings, though the person in default, against whom maintenance order is sought, may nto be an accused person whose examination without oath is mandatory as prescribed by Section 342 of the Code and he may be entitled to appear as a witness as well. I am aware of some conflict of judicial opinion in some old cases where on the ground that the procedure of trying maintenance applications being that of a summons case, failure to examine the person proceeded against under Section 342 of the Code, was held to vitiate the proceedings, but that conflict was set at rest by later decisions in which this section was held inapplicable to proceedings under S. These proceedings seem to me to be clearly criminal proceedings and I find no logical and rational basis for holding them to be civil proceedings so as to exclude the applicability of Article 134 of the Constitution. The difference between the relative scope of a civil revision and of a criminal revision is well known and revision against an order under Section 488, Cr. The children in these proceedings may, if they are so advised, even now apply to a competent Court under Section 488 for maintenance and if they make out a good claim to the satisfaction of the Court, I have nto the least doubt that suitable orders would be made in accordance with law.',
			'caseanalysis' => null,
			'casesref' => 'Kapur Singh v. Union of India;',
			'citingcases' => '',
			'counselplain' => ' O.P. Sharma, Adv',
			'counseldef' => ' Madan Bhatia, Adv.',
			'court' => 'Delhi',
			'court_type' => 'HC',
			'decidedon' => '1968-12-17',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' I.D. Dua, C.J.',
			'judgement' => '<p style="text-align: justify;">1. In this application for a certificate of fitness for appeal to the Supreme Court from an order made on revision by this Court in proceedings under Section 488, Cr. P. C, a preliminary objection has been raised that Article 134(1)(c) of the Constitution is inapplicable because proceedings under Section 488 are civil proceedings and nto criminal proceedings. Reliance in support of this preliminary objection has been placed on a decision of the Supreme Court in Nand Lal Misra v. K.L. Misra, : 1960CriLJ1246 . Emphasis has been laid on the observations In this Judgment that Chapter xxxvi of the Code of Criminal Procedure is a self-contained one and the relief given under it is essentially of a civil nature. From this sentence, it is sought to be argued that the proceedings under section 488 are civil proceedings and nto criminal proceedings. Reliance has also been placed on a still more recent Judgment of the Supreme Court in Narayan Row v. Ishwar Lal, : [1965]57ITR149(SC) , in which while dealing with an appeal from an order made by the Bombay High Court under Article 226 of the Constitution, in a matter pertaining to recovery of income-tax, it was observed that the proceedings were civil proceedings within the meaning of Article 133(1)(c) of the Constitution. Reference has next been made to a Full Bench decision of the Punjab High Court in Kapur Singh v. Union of India, where also the question about the nature of proceedings under Articles 133 and 226 of the Constitution came up for discussion. In my opinion, none of these decisions throw helpful light on the question which the preliminary objection poses. Section 488 reads as under:</p><p style="text-align: justify;">'488. Order for maintenance of wives and children.--(1) If any person having sufficient means neglects or refuses to maintain his wife or his legitimate or illegitimate child unable to maintain itself, the District Magistrate, a Presidency Magistrate, a Sub-Divisional Magistrate or 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, at such monthly rate, nto exceeding five hundred rupees in the whole, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate from time to time directs.</p><p style="text-align: justify;"> (2) Such allowance shall be payable from the date of the order, or if so ordered from the date of the application for maintenance.</p><p style="text-align: justify;"> (3) If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in manner hereinbefore provided for levying fines, and may sentence such person, for the whole or any part of each month's allowance remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made:</p><p style="text-align: justify;"> Provided that, if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if ho is satisfied that there is just ground for so doing.</p><p style="text-align: justify;"> If a husband has contracted marriage with another wife or keeps a mistress, it shall be considered to be just ground for his wife's refusal to live with him:</p><p style="text-align: justify;"> Provided, further that no warrant shall be issued for the recovery of any amount due under this direction unless application be made to the Court to levy such amount within a period of one year from the date on which it became due.</p><p style="text-align: justify;"> (4) No wife shall be entitled to receive an allowance from her husband under this section if she is living in adultery, or if, without any sufficient reason she refuses to live with her husband, or if they are living separately by mutual consent.</p><p style="text-align: justify;"> (5) On proof that any wife in whose favor an order has been made under this section is living in adultery, or that without sufficient reason she refuses to live with her husband, or that they are living separately by mutual consent, the Magistrate shall cancel the order.</p><p style="text-align: justify;"> (6) All evidence under this Chapter shall be taken in the presence of the husband or father, as the case may be, or, when his personal attendance is dispensed with, in the presence of his pleader, and shall be recorded in :he manner prescribed in the case of summons-cases:</p><p style="text-align: justify;"> Provided that if the Magistrate is satisfied that he is willfully avoiding service, or willfully neglects to attend the Court, the Magistrate may proceed to hear and determine the case ex parte. Any order so made may be set aside for good cause shown, on application made within three months from the date thereof.</p><p style="text-align: justify;"> (7) The Court in dealing with applications under this section shall have power to make such order as to costs as may be just.</p><p style="text-align: justify;"> (8) Proceedings under this section may be taken against any person in any district where he resides or is, or where he last resided with his wife or, as the case may be, the mother of the illegitimate child.' </p><p style="text-align: justify;">It is obvious that it confers power to order maintenance, on District Magistrates, Presidency Magistrates, Sub-Divisional Magistrates and Magistrates of the 1st Class: Courts which are indisputably criminal Courts and nto civil Courts. Sub-section (6) provides that all evidence under this Chapter has to be taken in the presence of the husband or father, as the case may be, or when his personal attendance is dispensed with, in the presence of his pleader and it is to be recorded in the manner prescribed in the case of summons-cases. This is a further indication that the proceedings are criminal proceedings and nto civil proceedings. The argument that there is no penalty imposed by this section and the proceedings thereforee, cannto be described as 'criminal' is also unacceptable because according to Section 488(3), which provides for enforcement of orders, in certain circumstances, the person in default can be imprisoned for a term which may extend to one month or until payment, if sooner made, though I should nto be understood to hold this consideration to be conclusive on the point either way. It is obvious that the proceedings envisaged by Chapter xxxvi of the Code cannto be considered to be purely civil proceedings, though the person in default, against whom maintenance order is sought, may nto be an accused person whose examination without oath is mandatory as prescribed by Section 342 of the Code and he may be entitled to appear as a witness as well. I am aware of some conflict of judicial opinion in some old cases where on the ground that the procedure of trying maintenance applications being that of a summons case, failure to examine the person proceeded against under Section 342 of the Code, was held to vitiate the proceedings, but that conflict was set at rest by later decisions in which this section was held inapplicable to proceedings under S. 488. However, consistently all the Courts dealing with that question had assumed that the proceedings were criminal proceedings governed by the Code of Criminal Procedure, both in regard to the trial and the power of revision of the Court of the Sessions Judge and of the High Court.</p><p style="text-align: justify;">2. Chapter 7-A of Vol. Iii of Rules and Orders of the Punjab High Court dealing with the maintenance cases also recites that proceedings under Section 488 of the Code of Criminal Procedure are of a criminal character and the provisions contained therein must, thereforee, be strictly followed. Keeping in view the scheme of Chapter xxxvi of the Code of Criminal Procedure and also the scheme of Articles 133 and 134 of the Constitution, I have little hesitation in holding that proceedings under Section 488, Cr. P. C., do fall within the contemplation of criminal proceedings within the meaning of Article 134. The expression 'criminal proceedings' in this Article, seems to me to be wide enough to include maintenance proceedings adjudicated upon by Magistrates initiated under Chapter xxxvI. Such maintenance proceedings are, in my view, criminal proceedings, designed by way of summary process to provide to deserted wives and neglected children, adjudication of their civil right of maintenance up to al limited amount, enforceable through criminal Courts, to avoid the notorious delays of civil proceedings, which may still be utilised for fuller relief under the general law in the ordinary civil Courts.</p><p style="text-align: justify;">3. And then, what directly concerns this Court is the question of the nature of the proceedings on revision in this Court. These proceedings seem to me to be clearly criminal proceedings and I find no logical and rational basis for holding them to be civil proceedings so as to exclude the applicability of Article 134 of the Constitution. Nto only are they registered in this Court as criminal revisions but they are also presented in this Court under the Cr. P. C. and nto under the Civil P. C. The difference between the relative scope of a civil revision and of a criminal revision is well known and revision against an order under Section 488, Cr. P. C. has never been held to my knowledge to be a civil revision so as to exclude the applicability of Art. 134(1)(c) of the Constitution. The preliminary objection is, thereforee, nto easy to sustain.</p><p style="text-align: justify;">4. Coming now to the merits, the learned counsel for the petitioner has very strongly argued that according to Section 488 of the Code, a separate order should have been made granting maintenance to the children. In my opinion, the question which concerns this Court in this present proceedings is nto so much as to what should have been done by the Magistrate while dealing with Section 488, Cr. P. C., but whether there is any such infirmity in the order of this Court as would justify a certificate of fitness within the contemplation of Article 134(1)(c) of the Constitution. It is nto argued, and it cannto be argued, that clause (a) or clause (b) of Article 134(1) covers this case. Clause (c) of this sub-article postulates a case in which a difficult question involving an unsettled principle requires to be finally determined by the Supreme Court. That does nto seem to be the case before me, and indeed no attempt has been made to show that there is any question of principle involved in the impugned order which requires authoritative decision by the Supreme Court. But this apart, the grant of maintenance in this case is a tentative order and it is always open to the authorities to ask for re-consideration and re-determination on account of change of circumstances. The children in these proceedings may, if they are so advised, even now apply to a competent Court under Section 488 for maintenance and if they make out a good claim to the satisfaction of the Court, I have nto the least doubt that suitable orders would be made in accordance with law. The revision on their behalf was held to be barred by time and this Court did nto consider it proper to exercise its suo motu power of revision in this regard. There is no decision on the merits against them by this Court and it has nto been shown that the impugned decision is based on any wrong principle of law which requires further examination by the Supreme Court.</p><p style="text-align: justify;">5. For the foregoing reasons, this application fails and is dismissed.</p><p style="text-align: justify;">6. Application dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => 'AIR1969Delhi298; 1969CriLJ1243; ILR1968Delhi545',
			'ratiodecidendi' => '',
			'respondent' => 'Sant Singh',
			'sub' => 'Criminal;Constitution',
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			'circuit' => null
		)
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	'casename_url' => 'harbhajan-kaur-vs-sant-singh',
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$title_for_layout = 'Harbhajan Kaur Vs Sant Singh - Citation 681173 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '681173',
		'acts' => '<a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 133, 134, 134(1) and 226; <a href="/act/133280/code-of-criminal-procedure-1898-complete-act">Code of Criminal Procedure (CrPC) , 1898</a> - Sections 342, 488, 488(3) and 488(6)',
		'appealno' => 'Criminal Misc. (SCA) No. 855 of 1968',
		'appellant' => 'Harbhajan Kaur',
		'authreffered' => '',
		'casename' => 'Harbhajan Kaur Vs. Sant Singh',
		'casenote' => ' (i) 
Criminal Procedure Code (V of 1898)- Section 488--Proceedings under--nature of--are criminal proceedings and nto Civil proceedings.; The proceedings envisaged by  Chapter xxxvI of the Code cannto be considered 
purely civil proceedings, though the person in default, against whom maintenance order is sought, may nto be an accused person, whose examination without oath is mandatory as prescribed by section 342 of the Code and he may be entitled to appear as a witness as 
well.; Chapter 7-A of Vol. III of Rules and Orders of the Punjab High Court dealing with the maintenance cases also recites that proceedings under section 488 of the Code of Criminal Procedure are of criminal character and the provisions contained therein must, thereforee, be strictly followed.; (ii) Constitution of India - Article 134--Proceedings under Section 488 within the contemplation of--expression--'Criminal proceedings'--scope of.;  That the proceedings under Section 488 Cr. P.C. do fall within the contemplation of criminal proceedings within the meaning of Article 134. 
The expression 'Criminal Proceedings' in this Article is wide enough to include maintenance proceedings adjucated upon by Magistrate initiated under Chapter xxxvI. Such maintenance proceedings are criminal proceedings designed by way of summary process to provide to deserted wives and neglected children adjudication of their civil right of maintenance up to a limited amount enforceable through criminal courts, to avoid the notorious delays of civil proceedings, which may still be utilised for fuller relief under the general law 
in the ordinary civil courts. - Section 13: [Altamas Kabir & Cyriac Joseph,JJ] Custody of child - Welfare of child vis--vis comity of Courts - The minor girl child of 3 1/2 years was brought to India by her mother. The minor girl was a citizen of U.K. being born in U.K. her parents had set up their matrimonial home in U.K. and had acquired status of permanent residents of U.K. The child with her mother was supposed to return to U.K. but the mother cancelled her tickets and remained behind in India. The husband thereupon started procededings before the High Court of Justice, Family Division. U.K. praying for an order that the minor child be made a ward of the Court and for a direction upon the wife to return the minor child to the jurisdiction of the said Court. A further direction was given for the passport and other international travel documents of the minor child to be handed over to the Solicitors of the husband. A petition seeking protection of minor child was thereupon filed by father of the husband before Delhi High Court. A direction for handing over custody of child to father of husband was also sought. The High Court considering fact that the U.K. court was already in seisin of  matter and had passed an interim order and by relying on principle of comity of Nations and Comity of Judgments of the courts of two different countries in deciding the matter directed the wife to take the child of her own to U.K.or hand it over to father of husband to be taken to U.K. as measure of interim custody and that it would be for the U.K. Court to decide the question of custody  -  Order was challenged by wife -  Held, the order of High Court was not liable to be interfered with. Although, on first impression, it would appear that the interests of the minor child would best be served if she is allowed to remain with the wife, the order of U.K. court cannot be lost sight of., The order of U.K. Court except for insisiting that the minor be returned to its jurisdiction, the English Court did not intend to separate the child from the mother until a final decision was taken with regard to the custody of the child. The ultimate decision in that regard has to be left to the English Court having regard to the nationality of the child and the fact that both the parents had worked for gain in the U.K. and had also acquired permanent resident status in the U.K. English Court has not directed that the custody of the child should be handed over to  the father but that the child should be returned to the jurisdiction of the Courts in the U.K. which would then proceed to determine as to who would be best suited to have the custody of the child. The High Court has taken into consideration both the questions relating to the Comity of Courts as well as the interest of the minor child, which, no doubt, is one of the most important considerations in matters relating to custody of a minor child.  -  Provided that, if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if ho is satisfied that there is just ground for so doing. Provided that if the Magistrate is satisfied that he is willfully avoiding service, or willfully neglects to attend the Court, the Magistrate may proceed to hear and determine the case ex parte. Any order so made may be set aside for good cause shown, on application made within three months from the date thereof. It is obvious that the proceedings envisaged by Chapter xxxvi of the Code cannto be considered to be purely civil proceedings, though the person in default, against whom maintenance order is sought, may nto be an accused person whose examination without oath is mandatory as prescribed by Section 342 of the Code and he may be entitled to appear as a witness as well. I am aware of some conflict of judicial opinion in some old cases where on the ground that the procedure of trying maintenance applications being that of a summons case, failure to examine the person proceeded against under Section 342 of the Code, was held to vitiate the proceedings, but that conflict was set at rest by later decisions in which this section was held inapplicable to proceedings under S. These proceedings seem to me to be clearly criminal proceedings and I find no logical and rational basis for holding them to be civil proceedings so as to exclude the applicability of Article 134 of the Constitution. The difference between the relative scope of a civil revision and of a criminal revision is well known and revision against an order under Section 488, Cr. The children in these proceedings may, if they are so advised, even now apply to a competent Court under Section 488 for maintenance and if they make out a good claim to the satisfaction of the Court, I have nto the least doubt that suitable orders would be made in accordance with law.',
		'caseanalysis' => null,
		'casesref' => 'Kapur Singh v. Union of India;',
		'citingcases' => '',
		'counselplain' => ' O.P. Sharma, Adv',
		'counseldef' => ' Madan Bhatia, Adv.',
		'court' => 'Delhi',
		'court_type' => 'HC',
		'decidedon' => '1968-12-17',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' I.D. Dua, C.J.',
		'judgement' => '<p>1. In this application for a certificate of fitness for appeal to the Supreme Court from an order made on revision by this Court in proceedings under Section 488, Cr. P. C, a preliminary objection has been raised that Article 134(1)(c) of the Constitution is inapplicable because proceedings under Section 488 are civil proceedings and nto criminal proceedings. Reliance in support of this preliminary objection has been placed on a decision of the Supreme Court in Nand Lal Misra v. K.L. Misra, : 1960CriLJ1246 . Emphasis has been laid on the observations In this Judgment that Chapter xxxvi of the Code of Criminal Procedure is a self-contained one and the relief given under it is essentially of a civil nature. From this sentence, it is sought to be argued that the proceedings under section 488 are civil proceedings and nto criminal proceedings. Reliance has also been placed on a still more recent Judgment of the Supreme Court in Narayan Row v. Ishwar Lal, : [1965]57ITR149(SC) , in which while dealing with an appeal from an order made by the Bombay High Court under Article 226 of the Constitution, in a matter pertaining to recovery of income-tax, it was observed that the proceedings were civil proceedings within the meaning of Article 133(1)(c) of the Constitution. Reference has next been made to a Full Bench decision of the Punjab High Court in Kapur Singh v. Union of India, where also the question about the nature of proceedings under Articles 133 and 226 of the Constitution came up for discussion. In my opinion, none of these decisions throw helpful light on the question which the preliminary objection poses. Section 488 reads as under:</p><p>'488. Order for maintenance of wives and children.--(1) If any person having sufficient means neglects or refuses to maintain his wife or his legitimate or illegitimate child unable to maintain itself, the District Magistrate, a Presidency Magistrate, a Sub-Divisional Magistrate or 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, at such monthly rate, nto exceeding five hundred rupees in the whole, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate from time to time directs.</p><p> (2) Such allowance shall be payable from the date of the order, or if so ordered from the date of the application for maintenance.</p><p> (3) If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in manner hereinbefore provided for levying fines, and may sentence such person, for the whole or any part of each month's allowance remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made:</p><p> Provided that, if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if ho is satisfied that there is just ground for so doing.</p><p> If a husband has contracted marriage with another wife or keeps a mistress, it shall be considered to be just ground for his wife's refusal to live with him:</p><p> Provided, further that no warrant shall be issued for the recovery of any amount due under this direction unless application be made to the Court to levy such amount within a period of one year from the date on which it became due.</p><p> (4) No wife shall be entitled to receive an allowance from her husband under this section if she is living in adultery, or if, without any sufficient reason she refuses to live with her husband, or if they are living separately by mutual consent.</p><p> (5) On proof that any wife in whose favor an order has been made under this section is living in adultery, or that without sufficient reason she refuses to live with her husband, or that they are living separately by mutual consent, the Magistrate shall cancel the order.</p><p> (6) All evidence under this Chapter shall be taken in the presence of the husband or father, as the case may be, or, when his personal attendance is dispensed with, in the presence of his pleader, and shall be recorded in :he manner prescribed in the case of summons-cases:</p><p> Provided that if the Magistrate is satisfied that he is willfully avoiding service, or willfully neglects to attend the Court, the Magistrate may proceed to hear and determine the case ex parte. Any order so made may be set aside for good cause shown, on application made within three months from the date thereof.</p><p> (7) The Court in dealing with applications under this section shall have power to make such order as to costs as may be just.</p><p> (8) Proceedings under this section may be taken against any person in any district where he resides or is, or where he last resided with his wife or, as the case may be, the mother of the illegitimate child.' </p><p>It is obvious that it confers power to order maintenance, on District Magistrates, Presidency Magistrates, Sub-Divisional Magistrates and Magistrates of the 1st Class: Courts which are indisputably criminal Courts and nto civil Courts. Sub-section (6) provides that all evidence under this Chapter has to be taken in the presence of the husband or father, as the case may be, or when his personal attendance is dispensed with, in the presence of his pleader and it is to be recorded in the manner prescribed in the case of summons-cases. This is a further indication that the proceedings are criminal proceedings and nto civil proceedings. The argument that there is no penalty imposed by this section and the proceedings thereforee, cannto be described as 'criminal' is also unacceptable because according to Section 488(3), which provides for enforcement of orders, in certain circumstances, the person in default can be imprisoned for a term which may extend to one month or until payment, if sooner made, though I should nto be understood to hold this consideration to be conclusive on the point either way. It is obvious that the proceedings envisaged by Chapter xxxvi of the Code cannto be considered to be purely civil proceedings, though the person in default, against whom maintenance order is sought, may nto be an accused person whose examination without oath is mandatory as prescribed by Section 342 of the Code and he may be entitled to appear as a witness as well. I am aware of some conflict of judicial opinion in some old cases where on the ground that the procedure of trying maintenance applications being that of a summons case, failure to examine the person proceeded against under Section 342 of the Code, was held to vitiate the proceedings, but that conflict was set at rest by later decisions in which this section was held inapplicable to proceedings under S. 488. However, consistently all the Courts dealing with that question had assumed that the proceedings were criminal proceedings governed by the Code of Criminal Procedure, both in regard to the trial and the power of revision of the Court of the Sessions Judge and of the High Court.</p><p>2. Chapter 7-A of Vol. Iii of Rules and Orders of the Punjab High Court dealing with the maintenance cases also recites that proceedings under Section 488 of the Code of Criminal Procedure are of a criminal character and the provisions contained therein must, thereforee, be strictly followed. Keeping in view the scheme of Chapter xxxvi of the Code of Criminal Procedure and also the scheme of Articles 133 and 134 of the Constitution, I have little hesitation in holding that proceedings under Section 488, Cr. P. C., do fall within the contemplation of criminal proceedings within the meaning of Article 134. The expression 'criminal proceedings' in this Article, seems to me to be wide enough to include maintenance proceedings adjudicated upon by Magistrates initiated under Chapter xxxvI. Such maintenance proceedings are, in my view, criminal proceedings, designed by way of summary process to provide to deserted wives and neglected children, adjudication of their civil right of maintenance up to al limited amount, enforceable through criminal Courts, to avoid the notorious delays of civil proceedings, which may still be utilised for fuller relief under the general law in the ordinary civil Courts.</p><p>3. And then, what directly concerns this Court is the question of the nature of the proceedings on revision in this Court. These proceedings seem to me to be clearly criminal proceedings and I find no logical and rational basis for holding them to be civil proceedings so as to exclude the applicability of Article 134 of the Constitution. Nto only are they registered in this Court as criminal revisions but they are also presented in this Court under the Cr. P. C. and nto under the Civil P. C. The difference between the relative scope of a civil revision and of a criminal revision is well known and revision against an order under Section 488, Cr. P. C. has never been held to my knowledge to be a civil revision so as to exclude the applicability of Art. 134(1)(c) of the Constitution. The preliminary objection is, thereforee, nto easy to sustain.</p><p>4. Coming now to the merits, the learned counsel for the petitioner has very strongly argued that according to Section 488 of the Code, a separate order should have been made granting maintenance to the children. In my opinion, the question which concerns this Court in this present proceedings is nto so much as to what should have been done by the Magistrate while dealing with Section 488, Cr. P. C., but whether there is any such infirmity in the order of this Court as would justify a certificate of fitness within the contemplation of Article 134(1)(c) of the Constitution. It is nto argued, and it cannto be argued, that clause (a) or clause (b) of Article 134(1) covers this case. Clause (c) of this sub-article postulates a case in which a difficult question involving an unsettled principle requires to be finally determined by the Supreme Court. That does nto seem to be the case before me, and indeed no attempt has been made to show that there is any question of principle involved in the impugned order which requires authoritative decision by the Supreme Court. But this apart, the grant of maintenance in this case is a tentative order and it is always open to the authorities to ask for re-consideration and re-determination on account of change of circumstances. The children in these proceedings may, if they are so advised, even now apply to a competent Court under Section 488 for maintenance and if they make out a good claim to the satisfaction of the Court, I have nto the least doubt that suitable orders would be made in accordance with law. The revision on their behalf was held to be barred by time and this Court did nto consider it proper to exercise its suo motu power of revision in this regard. There is no decision on the merits against them by this Court and it has nto been shown that the impugned decision is based on any wrong principle of law which requires further examination by the Supreme Court.</p><p>5. For the foregoing reasons, this application fails and is dismissed.</p><p>6. Application dismissed.<p></p><p>',
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		'prhistory' => '',
		'pubs' => 'AIR1969Delhi298; 1969CriLJ1243; ILR1968Delhi545',
		'ratiodecidendi' => '',
		'respondent' => 'Sant Singh',
		'sub' => 'Criminal;Constitution',
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$content = array(
	(int) 0 => '<p>1. In this application for a certificate of fitness for appeal to the Supreme Court from an order made on revision by this Court in proceedings under Section 488, Cr. P. C, a preliminary objection has been raised that Article 134(1)(c) of the Constitution is inapplicable because proceedings under Section 488 are civil proceedings and nto criminal proceedings. Reliance in support of this preliminary objection has been placed on a decision of the Supreme Court in Nand Lal Misra v. K.L. Misra, : 1960CriLJ1246 . Emphasis has been laid on the observations In this Judgment that Chapter xxxvi of the Code of Criminal Procedure is a self-contained one and the relief given under it is essentially of a civil nature. From this sentence, it is sought to be argued that the proceedings under section 488 are civil proceedings and nto criminal proceedings. Reliance has also been placed on a still more recent Judgment of the Supreme Court in Narayan Row v. Ishwar Lal, : [1965]57ITR149(SC) , in which while dealing with an appeal from an order made by the Bombay High Court under Article 226 of the Constitution, in a matter pertaining to recovery of income-tax, it was observed that the proceedings were civil proceedings within the meaning of Article 133(1)(c) of the Constitution. Reference has next been made to a Full Bench decision of the Punjab High Court in Kapur Singh v. Union of India, where also the question about the nature of proceedings under Articles 133 and 226 of the Constitution came up for discussion. In my opinion, none of these decisions throw helpful light on the question which the preliminary objection poses. Section 488 reads as under:',
	(int) 1 => '<p>'488. Order for maintenance of wives and children.--(1) If any person having sufficient means neglects or refuses to maintain his wife or his legitimate or illegitimate child unable to maintain itself, the District Magistrate, a Presidency Magistrate, a Sub-Divisional Magistrate or 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, at such monthly rate, nto exceeding five hundred rupees in the whole, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate from time to time directs.',
	(int) 2 => '<p> (2) Such allowance shall be payable from the date of the order, or if so ordered from the date of the application for maintenance.',
	(int) 3 => '<p> (3) If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in manner hereinbefore provided for levying fines, and may sentence such person, for the whole or any part of each month's allowance remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made:',
	(int) 4 => '<p> Provided that, if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if ho is satisfied that there is just ground for so doing.',
	(int) 5 => '<p> If a husband has contracted marriage with another wife or keeps a mistress, it shall be considered to be just ground for his wife's refusal to live with him:',
	(int) 6 => '<p> Provided, further that no warrant shall be issued for the recovery of any amount due under this direction unless application be made to the Court to levy such amount within a period of one year from the date on which it became due.',
	(int) 7 => '<p> (4) No wife shall be entitled to receive an allowance from her husband under this section if she is living in adultery, or if, without any sufficient reason she refuses to live with her husband, or if they are living separately by mutual consent.',
	(int) 8 => '<p> (5) On proof that any wife in whose favor an order has been made under this section is living in adultery, or that without sufficient reason she refuses to live with her husband, or that they are living separately by mutual consent, the Magistrate shall cancel the order.',
	(int) 9 => '<p> (6) All evidence under this Chapter shall be taken in the presence of the husband or father, as the case may be, or, when his personal attendance is dispensed with, in the presence of his pleader, and shall be recorded in :he manner prescribed in the case of summons-cases:',
	(int) 10 => '<p> Provided that if the Magistrate is satisfied that he is willfully avoiding service, or willfully neglects to attend the Court, the Magistrate may proceed to hear and determine the case ex parte. Any order so made may be set aside for good cause shown, on application made within three months from the date thereof.',
	(int) 11 => '<p> (7) The Court in dealing with applications under this section shall have power to make such order as to costs as may be just.',
	(int) 12 => '<p> (8) Proceedings under this section may be taken against any person in any district where he resides or is, or where he last resided with his wife or, as the case may be, the mother of the illegitimate child.' ',
	(int) 13 => '<p>It is obvious that it confers power to order maintenance, on District Magistrates, Presidency Magistrates, Sub-Divisional Magistrates and Magistrates of the 1st Class: Courts which are indisputably criminal Courts and nto civil Courts. Sub-section (6) provides that all evidence under this Chapter has to be taken in the presence of the husband or father, as the case may be, or when his personal attendance is dispensed with, in the presence of his pleader and it is to be recorded in the manner prescribed in the case of summons-cases. This is a further indication that the proceedings are criminal proceedings and nto civil proceedings. The argument that there is no penalty imposed by this section and the proceedings thereforee, cannto be described as 'criminal' is also unacceptable because according to Section 488(3), which provides for enforcement of orders, in certain circumstances, the person in default can be imprisoned for a term which may extend to one month or until payment, if sooner made, though I should nto be understood to hold this consideration to be conclusive on the point either way. It is obvious that the proceedings envisaged by Chapter xxxvi of the Code cannto be considered to be purely civil proceedings, though the person in default, against whom maintenance order is sought, may nto be an accused person whose examination without oath is mandatory as prescribed by Section 342 of the Code and he may be entitled to appear as a witness as well. I am aware of some conflict of judicial opinion in some old cases where on the ground that the procedure of trying maintenance applications being that of a summons case, failure to examine the person proceeded against under Section 342 of the Code, was held to vitiate the proceedings, but that conflict was set at rest by later decisions in which this section was held inapplicable to proceedings under S. 488. However, consistently all the Courts dealing with that question had assumed that the proceedings were criminal proceedings governed by the Code of Criminal Procedure, both in regard to the trial and the power of revision of the Court of the Sessions Judge and of the High Court.',
	(int) 14 => '<p>2. Chapter 7-A of Vol. Iii of Rules and Orders of the Punjab High Court dealing with the maintenance cases also recites that proceedings under Section 488 of the Code of Criminal Procedure are of a criminal character and the provisions contained therein must, thereforee, be strictly followed. Keeping in view the scheme of Chapter xxxvi of the Code of Criminal Procedure and also the scheme of Articles 133 and 134 of the Constitution, I have little hesitation in holding that proceedings under Section 488, Cr. P. C., do fall within the contemplation of criminal proceedings within the meaning of Article 134. The expression 'criminal proceedings' in this Article, seems to me to be wide enough to include maintenance proceedings adjudicated upon by Magistrates initiated under Chapter xxxvI. Such maintenance proceedings are, in my view, criminal proceedings, designed by way of summary process to provide to deserted wives and neglected children, adjudication of their civil right of maintenance up to al limited amount, enforceable through criminal Courts, to avoid the notorious delays of civil proceedings, which may still be utilised for fuller relief under the general law in the ordinary civil Courts.',
	(int) 15 => '<p>3. And then, what directly concerns this Court is the question of the nature of the proceedings on revision in this Court. These proceedings seem to me to be clearly criminal proceedings and I find no logical and rational basis for holding them to be civil proceedings so as to exclude the applicability of Article 134 of the Constitution. Nto only are they registered in this Court as criminal revisions but they are also presented in this Court under the Cr. P. C. and nto under the Civil P. C. The difference between the relative scope of a civil revision and of a criminal revision is well known and revision against an order under Section 488, Cr. P. C. has never been held to my knowledge to be a civil revision so as to exclude the applicability of Art. 134(1)(c) of the Constitution. The preliminary objection is, thereforee, nto easy to sustain.',
	(int) 16 => '<p>4. Coming now to the merits, the learned counsel for the petitioner has very strongly argued that according to Section 488 of the Code, a separate order should have been made granting maintenance to the children. In my opinion, the question which concerns this Court in this present proceedings is nto so much as to what should have been done by the Magistrate while dealing with Section 488, Cr. P. C., but whether there is any such infirmity in the order of this Court as would justify a certificate of fitness within the contemplation of Article 134(1)(c) of the Constitution. It is nto argued, and it cannto be argued, that clause (a) or clause (b) of Article 134(1) covers this case. Clause (c) of this sub-article postulates a case in which a difficult question involving an unsettled principle requires to be finally determined by the Supreme Court. That does nto seem to be the case before me, and indeed no attempt has been made to show that there is any question of principle involved in the impugned order which requires authoritative decision by the Supreme Court. But this apart, the grant of maintenance in this case is a tentative order and it is always open to the authorities to ask for re-consideration and re-determination on account of change of circumstances. The children in these proceedings may, if they are so advised, even now apply to a competent Court under Section 488 for maintenance and if they make out a good claim to the satisfaction of the Court, I have nto the least doubt that suitable orders would be made in accordance with law. The revision on their behalf was held to be barred by time and this Court did nto consider it proper to exercise its suo motu power of revision in this regard. There is no decision on the merits against them by this Court and it has nto been shown that the impugned decision is based on any wrong principle of law which requires further examination by the Supreme Court.',
	(int) 17 => '<p>5. For the foregoing reasons, this application fails and is dismissed.',
	(int) 18 => '<p>6. Application dismissed.<p>',
	(int) 19 => '<p>'
)
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(7) The Court in dealing with applications under this section shall have power to make such order as to costs as may be just.

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	'title_for_layout' => 'Harbhajan Kaur Vs Sant Singh - Citation 681173 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '681173',
			'acts' => '<a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 133, 134, 134(1) and 226; <a href="/act/133280/code-of-criminal-procedure-1898-complete-act">Code of Criminal Procedure (CrPC) , 1898</a> - Sections 342, 488, 488(3) and 488(6)',
			'appealno' => 'Criminal Misc. (SCA) No. 855 of 1968',
			'appellant' => 'Harbhajan Kaur',
			'authreffered' => '',
			'casename' => 'Harbhajan Kaur Vs. Sant Singh',
			'casenote' => ' (i) 
Criminal Procedure Code (V of 1898)- Section 488--Proceedings under--nature of--are criminal proceedings and nto Civil proceedings.; The proceedings envisaged by  Chapter xxxvI of the Code cannto be considered 
purely civil proceedings, though the person in default, against whom maintenance order is sought, may nto be an accused person, whose examination without oath is mandatory as prescribed by section 342 of the Code and he may be entitled to appear as a witness as 
well.; Chapter 7-A of Vol. III of Rules and Orders of the Punjab High Court dealing with the maintenance cases also recites that proceedings under section 488 of the Code of Criminal Procedure are of criminal character and the provisions contained therein must, thereforee, be strictly followed.; (ii) Constitution of India - Article 134--Proceedings under Section 488 within the contemplation of--expression--'Criminal proceedings'--scope of.;  That the proceedings under Section 488 Cr. P.C. do fall within the contemplation of criminal proceedings within the meaning of Article 134. 
The expression 'Criminal Proceedings' in this Article is wide enough to include maintenance proceedings adjucated upon by Magistrate initiated under Chapter xxxvI. Such maintenance proceedings are criminal proceedings designed by way of summary process to provide to deserted wives and neglected children adjudication of their civil right of maintenance up to a limited amount enforceable through criminal courts, to avoid the notorious delays of civil proceedings, which may still be utilised for fuller relief under the general law 
in the ordinary civil courts. - Section 13: [Altamas Kabir & Cyriac Joseph,JJ] Custody of child - Welfare of child vis--vis comity of Courts - The minor girl child of 3 1/2 years was brought to India by her mother. The minor girl was a citizen of U.K. being born in U.K. her parents had set up their matrimonial home in U.K. and had acquired status of permanent residents of U.K. The child with her mother was supposed to return to U.K. but the mother cancelled her tickets and remained behind in India. The husband thereupon started procededings before the High Court of Justice, Family Division. U.K. praying for an order that the minor child be made a ward of the Court and for a direction upon the wife to return the minor child to the jurisdiction of the said Court. A further direction was given for the passport and other international travel documents of the minor child to be handed over to the Solicitors of the husband. A petition seeking protection of minor child was thereupon filed by father of the husband before Delhi High Court. A direction for handing over custody of child to father of husband was also sought. The High Court considering fact that the U.K. court was already in seisin of  matter and had passed an interim order and by relying on principle of comity of Nations and Comity of Judgments of the courts of two different countries in deciding the matter directed the wife to take the child of her own to U.K.or hand it over to father of husband to be taken to U.K. as measure of interim custody and that it would be for the U.K. Court to decide the question of custody  -  Order was challenged by wife -  Held, the order of High Court was not liable to be interfered with. Although, on first impression, it would appear that the interests of the minor child would best be served if she is allowed to remain with the wife, the order of U.K. court cannot be lost sight of., The order of U.K. Court except for insisiting that the minor be returned to its jurisdiction, the English Court did not intend to separate the child from the mother until a final decision was taken with regard to the custody of the child. The ultimate decision in that regard has to be left to the English Court having regard to the nationality of the child and the fact that both the parents had worked for gain in the U.K. and had also acquired permanent resident status in the U.K. English Court has not directed that the custody of the child should be handed over to  the father but that the child should be returned to the jurisdiction of the Courts in the U.K. which would then proceed to determine as to who would be best suited to have the custody of the child. The High Court has taken into consideration both the questions relating to the Comity of Courts as well as the interest of the minor child, which, no doubt, is one of the most important considerations in matters relating to custody of a minor child.  -  Provided that, if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if ho is satisfied that there is just ground for so doing. Provided that if the Magistrate is satisfied that he is willfully avoiding service, or willfully neglects to attend the Court, the Magistrate may proceed to hear and determine the case ex parte. Any order so made may be set aside for good cause shown, on application made within three months from the date thereof. It is obvious that the proceedings envisaged by Chapter xxxvi of the Code cannto be considered to be purely civil proceedings, though the person in default, against whom maintenance order is sought, may nto be an accused person whose examination without oath is mandatory as prescribed by Section 342 of the Code and he may be entitled to appear as a witness as well. I am aware of some conflict of judicial opinion in some old cases where on the ground that the procedure of trying maintenance applications being that of a summons case, failure to examine the person proceeded against under Section 342 of the Code, was held to vitiate the proceedings, but that conflict was set at rest by later decisions in which this section was held inapplicable to proceedings under S. These proceedings seem to me to be clearly criminal proceedings and I find no logical and rational basis for holding them to be civil proceedings so as to exclude the applicability of Article 134 of the Constitution. The difference between the relative scope of a civil revision and of a criminal revision is well known and revision against an order under Section 488, Cr. The children in these proceedings may, if they are so advised, even now apply to a competent Court under Section 488 for maintenance and if they make out a good claim to the satisfaction of the Court, I have nto the least doubt that suitable orders would be made in accordance with law.',
			'caseanalysis' => null,
			'casesref' => 'Kapur Singh v. Union of India;',
			'citingcases' => '',
			'counselplain' => ' O.P. Sharma, Adv',
			'counseldef' => ' Madan Bhatia, Adv.',
			'court' => 'Delhi',
			'court_type' => 'HC',
			'decidedon' => '1968-12-17',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' I.D. Dua, C.J.',
			'judgement' => '<p style="text-align: justify;">1. In this application for a certificate of fitness for appeal to the Supreme Court from an order made on revision by this Court in proceedings under Section 488, Cr. P. C, a preliminary objection has been raised that Article 134(1)(c) of the Constitution is inapplicable because proceedings under Section 488 are civil proceedings and nto criminal proceedings. Reliance in support of this preliminary objection has been placed on a decision of the Supreme Court in Nand Lal Misra v. K.L. Misra, : 1960CriLJ1246 . Emphasis has been laid on the observations In this Judgment that Chapter xxxvi of the Code of Criminal Procedure is a self-contained one and the relief given under it is essentially of a civil nature. From this sentence, it is sought to be argued that the proceedings under section 488 are civil proceedings and nto criminal proceedings. Reliance has also been placed on a still more recent Judgment of the Supreme Court in Narayan Row v. Ishwar Lal, : [1965]57ITR149(SC) , in which while dealing with an appeal from an order made by the Bombay High Court under Article 226 of the Constitution, in a matter pertaining to recovery of income-tax, it was observed that the proceedings were civil proceedings within the meaning of Article 133(1)(c) of the Constitution. Reference has next been made to a Full Bench decision of the Punjab High Court in Kapur Singh v. Union of India, where also the question about the nature of proceedings under Articles 133 and 226 of the Constitution came up for discussion. In my opinion, none of these decisions throw helpful light on the question which the preliminary objection poses. Section 488 reads as under:</p><p style="text-align: justify;">'488. Order for maintenance of wives and children.--(1) If any person having sufficient means neglects or refuses to maintain his wife or his legitimate or illegitimate child unable to maintain itself, the District Magistrate, a Presidency Magistrate, a Sub-Divisional Magistrate or 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, at such monthly rate, nto exceeding five hundred rupees in the whole, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate from time to time directs.</p><p style="text-align: justify;"> (2) Such allowance shall be payable from the date of the order, or if so ordered from the date of the application for maintenance.</p><p style="text-align: justify;"> (3) If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in manner hereinbefore provided for levying fines, and may sentence such person, for the whole or any part of each month's allowance remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made:</p><p style="text-align: justify;"> Provided that, if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if ho is satisfied that there is just ground for so doing.</p><p style="text-align: justify;"> If a husband has contracted marriage with another wife or keeps a mistress, it shall be considered to be just ground for his wife's refusal to live with him:</p><p style="text-align: justify;"> Provided, further that no warrant shall be issued for the recovery of any amount due under this direction unless application be made to the Court to levy such amount within a period of one year from the date on which it became due.</p><p style="text-align: justify;"> (4) No wife shall be entitled to receive an allowance from her husband under this section if she is living in adultery, or if, without any sufficient reason she refuses to live with her husband, or if they are living separately by mutual consent.</p><p style="text-align: justify;"> (5) On proof that any wife in whose favor an order has been made under this section is living in adultery, or that without sufficient reason she refuses to live with her husband, or that they are living separately by mutual consent, the Magistrate shall cancel the order.</p><p style="text-align: justify;"> (6) All evidence under this Chapter shall be taken in the presence of the husband or father, as the case may be, or, when his personal attendance is dispensed with, in the presence of his pleader, and shall be recorded in :he manner prescribed in the case of summons-cases:</p><p style="text-align: justify;"> Provided that if the Magistrate is satisfied that he is willfully avoiding service, or willfully neglects to attend the Court, the Magistrate may proceed to hear and determine the case ex parte. Any order so made may be set aside for good cause shown, on application made within three months from the date thereof.</p><p style="text-align: justify;"> (7) The Court in dealing with applications under this section shall have power to make such order as to costs as may be just.</p><p style="text-align: justify;"> (8) Proceedings under this section may be taken against any person in any district where he resides or is, or where he last resided with his wife or, as the case may be, the mother of the illegitimate child.' </p><p style="text-align: justify;">It is obvious that it confers power to order maintenance, on District Magistrates, Presidency Magistrates, Sub-Divisional Magistrates and Magistrates of the 1st Class: Courts which are indisputably criminal Courts and nto civil Courts. Sub-section (6) provides that all evidence under this Chapter has to be taken in the presence of the husband or father, as the case may be, or when his personal attendance is dispensed with, in the presence of his pleader and it is to be recorded in the manner prescribed in the case of summons-cases. This is a further indication that the proceedings are criminal proceedings and nto civil proceedings. The argument that there is no penalty imposed by this section and the proceedings thereforee, cannto be described as 'criminal' is also unacceptable because according to Section 488(3), which provides for enforcement of orders, in certain circumstances, the person in default can be imprisoned for a term which may extend to one month or until payment, if sooner made, though I should nto be understood to hold this consideration to be conclusive on the point either way. It is obvious that the proceedings envisaged by Chapter xxxvi of the Code cannto be considered to be purely civil proceedings, though the person in default, against whom maintenance order is sought, may nto be an accused person whose examination without oath is mandatory as prescribed by Section 342 of the Code and he may be entitled to appear as a witness as well. I am aware of some conflict of judicial opinion in some old cases where on the ground that the procedure of trying maintenance applications being that of a summons case, failure to examine the person proceeded against under Section 342 of the Code, was held to vitiate the proceedings, but that conflict was set at rest by later decisions in which this section was held inapplicable to proceedings under S. 488. However, consistently all the Courts dealing with that question had assumed that the proceedings were criminal proceedings governed by the Code of Criminal Procedure, both in regard to the trial and the power of revision of the Court of the Sessions Judge and of the High Court.</p><p style="text-align: justify;">2. Chapter 7-A of Vol. Iii of Rules and Orders of the Punjab High Court dealing with the maintenance cases also recites that proceedings under Section 488 of the Code of Criminal Procedure are of a criminal character and the provisions contained therein must, thereforee, be strictly followed. Keeping in view the scheme of Chapter xxxvi of the Code of Criminal Procedure and also the scheme of Articles 133 and 134 of the Constitution, I have little hesitation in holding that proceedings under Section 488, Cr. P. C., do fall within the contemplation of criminal proceedings within the meaning of Article 134. The expression 'criminal proceedings' in this Article, seems to me to be wide enough to include maintenance proceedings adjudicated upon by Magistrates initiated under Chapter xxxvI. Such maintenance proceedings are, in my view, criminal proceedings, designed by way of summary process to provide to deserted wives and neglected children, adjudication of their civil right of maintenance up to al limited amount, enforceable through criminal Courts, to avoid the notorious delays of civil proceedings, which may still be utilised for fuller relief under the general law in the ordinary civil Courts.</p><p style="text-align: justify;">3. And then, what directly concerns this Court is the question of the nature of the proceedings on revision in this Court. These proceedings seem to me to be clearly criminal proceedings and I find no logical and rational basis for holding them to be civil proceedings so as to exclude the applicability of Article 134 of the Constitution. Nto only are they registered in this Court as criminal revisions but they are also presented in this Court under the Cr. P. C. and nto under the Civil P. C. The difference between the relative scope of a civil revision and of a criminal revision is well known and revision against an order under Section 488, Cr. P. C. has never been held to my knowledge to be a civil revision so as to exclude the applicability of Art. 134(1)(c) of the Constitution. The preliminary objection is, thereforee, nto easy to sustain.</p><p style="text-align: justify;">4. Coming now to the merits, the learned counsel for the petitioner has very strongly argued that according to Section 488 of the Code, a separate order should have been made granting maintenance to the children. In my opinion, the question which concerns this Court in this present proceedings is nto so much as to what should have been done by the Magistrate while dealing with Section 488, Cr. P. C., but whether there is any such infirmity in the order of this Court as would justify a certificate of fitness within the contemplation of Article 134(1)(c) of the Constitution. It is nto argued, and it cannto be argued, that clause (a) or clause (b) of Article 134(1) covers this case. Clause (c) of this sub-article postulates a case in which a difficult question involving an unsettled principle requires to be finally determined by the Supreme Court. That does nto seem to be the case before me, and indeed no attempt has been made to show that there is any question of principle involved in the impugned order which requires authoritative decision by the Supreme Court. But this apart, the grant of maintenance in this case is a tentative order and it is always open to the authorities to ask for re-consideration and re-determination on account of change of circumstances. The children in these proceedings may, if they are so advised, even now apply to a competent Court under Section 488 for maintenance and if they make out a good claim to the satisfaction of the Court, I have nto the least doubt that suitable orders would be made in accordance with law. The revision on their behalf was held to be barred by time and this Court did nto consider it proper to exercise its suo motu power of revision in this regard. There is no decision on the merits against them by this Court and it has nto been shown that the impugned decision is based on any wrong principle of law which requires further examination by the Supreme Court.</p><p style="text-align: justify;">5. For the foregoing reasons, this application fails and is dismissed.</p><p style="text-align: justify;">6. Application dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => 'AIR1969Delhi298; 1969CriLJ1243; ILR1968Delhi545',
			'ratiodecidendi' => '',
			'respondent' => 'Sant Singh',
			'sub' => 'Criminal;Constitution',
			'link' => null,
			'circuit' => null
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$title_for_layout = 'Harbhajan Kaur Vs Sant Singh - Citation 681173 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '681173',
		'acts' => '<a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 133, 134, 134(1) and 226; <a href="/act/133280/code-of-criminal-procedure-1898-complete-act">Code of Criminal Procedure (CrPC) , 1898</a> - Sections 342, 488, 488(3) and 488(6)',
		'appealno' => 'Criminal Misc. (SCA) No. 855 of 1968',
		'appellant' => 'Harbhajan Kaur',
		'authreffered' => '',
		'casename' => 'Harbhajan Kaur Vs. Sant Singh',
		'casenote' => ' (i) 
Criminal Procedure Code (V of 1898)- Section 488--Proceedings under--nature of--are criminal proceedings and nto Civil proceedings.; The proceedings envisaged by  Chapter xxxvI of the Code cannto be considered 
purely civil proceedings, though the person in default, against whom maintenance order is sought, may nto be an accused person, whose examination without oath is mandatory as prescribed by section 342 of the Code and he may be entitled to appear as a witness as 
well.; Chapter 7-A of Vol. III of Rules and Orders of the Punjab High Court dealing with the maintenance cases also recites that proceedings under section 488 of the Code of Criminal Procedure are of criminal character and the provisions contained therein must, thereforee, be strictly followed.; (ii) Constitution of India - Article 134--Proceedings under Section 488 within the contemplation of--expression--'Criminal proceedings'--scope of.;  That the proceedings under Section 488 Cr. P.C. do fall within the contemplation of criminal proceedings within the meaning of Article 134. 
The expression 'Criminal Proceedings' in this Article is wide enough to include maintenance proceedings adjucated upon by Magistrate initiated under Chapter xxxvI. Such maintenance proceedings are criminal proceedings designed by way of summary process to provide to deserted wives and neglected children adjudication of their civil right of maintenance up to a limited amount enforceable through criminal courts, to avoid the notorious delays of civil proceedings, which may still be utilised for fuller relief under the general law 
in the ordinary civil courts. - Section 13: [Altamas Kabir & Cyriac Joseph,JJ] Custody of child - Welfare of child vis--vis comity of Courts - The minor girl child of 3 1/2 years was brought to India by her mother. The minor girl was a citizen of U.K. being born in U.K. her parents had set up their matrimonial home in U.K. and had acquired status of permanent residents of U.K. The child with her mother was supposed to return to U.K. but the mother cancelled her tickets and remained behind in India. The husband thereupon started procededings before the High Court of Justice, Family Division. U.K. praying for an order that the minor child be made a ward of the Court and for a direction upon the wife to return the minor child to the jurisdiction of the said Court. A further direction was given for the passport and other international travel documents of the minor child to be handed over to the Solicitors of the husband. A petition seeking protection of minor child was thereupon filed by father of the husband before Delhi High Court. A direction for handing over custody of child to father of husband was also sought. The High Court considering fact that the U.K. court was already in seisin of  matter and had passed an interim order and by relying on principle of comity of Nations and Comity of Judgments of the courts of two different countries in deciding the matter directed the wife to take the child of her own to U.K.or hand it over to father of husband to be taken to U.K. as measure of interim custody and that it would be for the U.K. Court to decide the question of custody  -  Order was challenged by wife -  Held, the order of High Court was not liable to be interfered with. Although, on first impression, it would appear that the interests of the minor child would best be served if she is allowed to remain with the wife, the order of U.K. court cannot be lost sight of., The order of U.K. Court except for insisiting that the minor be returned to its jurisdiction, the English Court did not intend to separate the child from the mother until a final decision was taken with regard to the custody of the child. The ultimate decision in that regard has to be left to the English Court having regard to the nationality of the child and the fact that both the parents had worked for gain in the U.K. and had also acquired permanent resident status in the U.K. English Court has not directed that the custody of the child should be handed over to  the father but that the child should be returned to the jurisdiction of the Courts in the U.K. which would then proceed to determine as to who would be best suited to have the custody of the child. The High Court has taken into consideration both the questions relating to the Comity of Courts as well as the interest of the minor child, which, no doubt, is one of the most important considerations in matters relating to custody of a minor child.  -  Provided that, if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if ho is satisfied that there is just ground for so doing. Provided that if the Magistrate is satisfied that he is willfully avoiding service, or willfully neglects to attend the Court, the Magistrate may proceed to hear and determine the case ex parte. Any order so made may be set aside for good cause shown, on application made within three months from the date thereof. It is obvious that the proceedings envisaged by Chapter xxxvi of the Code cannto be considered to be purely civil proceedings, though the person in default, against whom maintenance order is sought, may nto be an accused person whose examination without oath is mandatory as prescribed by Section 342 of the Code and he may be entitled to appear as a witness as well. I am aware of some conflict of judicial opinion in some old cases where on the ground that the procedure of trying maintenance applications being that of a summons case, failure to examine the person proceeded against under Section 342 of the Code, was held to vitiate the proceedings, but that conflict was set at rest by later decisions in which this section was held inapplicable to proceedings under S. These proceedings seem to me to be clearly criminal proceedings and I find no logical and rational basis for holding them to be civil proceedings so as to exclude the applicability of Article 134 of the Constitution. The difference between the relative scope of a civil revision and of a criminal revision is well known and revision against an order under Section 488, Cr. The children in these proceedings may, if they are so advised, even now apply to a competent Court under Section 488 for maintenance and if they make out a good claim to the satisfaction of the Court, I have nto the least doubt that suitable orders would be made in accordance with law.',
		'caseanalysis' => null,
		'casesref' => 'Kapur Singh v. Union of India;',
		'citingcases' => '',
		'counselplain' => ' O.P. Sharma, Adv',
		'counseldef' => ' Madan Bhatia, Adv.',
		'court' => 'Delhi',
		'court_type' => 'HC',
		'decidedon' => '1968-12-17',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' I.D. Dua, C.J.',
		'judgement' => '<p>1. In this application for a certificate of fitness for appeal to the Supreme Court from an order made on revision by this Court in proceedings under Section 488, Cr. P. C, a preliminary objection has been raised that Article 134(1)(c) of the Constitution is inapplicable because proceedings under Section 488 are civil proceedings and nto criminal proceedings. Reliance in support of this preliminary objection has been placed on a decision of the Supreme Court in Nand Lal Misra v. K.L. Misra, : 1960CriLJ1246 . Emphasis has been laid on the observations In this Judgment that Chapter xxxvi of the Code of Criminal Procedure is a self-contained one and the relief given under it is essentially of a civil nature. From this sentence, it is sought to be argued that the proceedings under section 488 are civil proceedings and nto criminal proceedings. Reliance has also been placed on a still more recent Judgment of the Supreme Court in Narayan Row v. Ishwar Lal, : [1965]57ITR149(SC) , in which while dealing with an appeal from an order made by the Bombay High Court under Article 226 of the Constitution, in a matter pertaining to recovery of income-tax, it was observed that the proceedings were civil proceedings within the meaning of Article 133(1)(c) of the Constitution. Reference has next been made to a Full Bench decision of the Punjab High Court in Kapur Singh v. Union of India, where also the question about the nature of proceedings under Articles 133 and 226 of the Constitution came up for discussion. In my opinion, none of these decisions throw helpful light on the question which the preliminary objection poses. Section 488 reads as under:</p><p>'488. Order for maintenance of wives and children.--(1) If any person having sufficient means neglects or refuses to maintain his wife or his legitimate or illegitimate child unable to maintain itself, the District Magistrate, a Presidency Magistrate, a Sub-Divisional Magistrate or 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, at such monthly rate, nto exceeding five hundred rupees in the whole, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate from time to time directs.</p><p> (2) Such allowance shall be payable from the date of the order, or if so ordered from the date of the application for maintenance.</p><p> (3) If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in manner hereinbefore provided for levying fines, and may sentence such person, for the whole or any part of each month's allowance remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made:</p><p> Provided that, if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if ho is satisfied that there is just ground for so doing.</p><p> If a husband has contracted marriage with another wife or keeps a mistress, it shall be considered to be just ground for his wife's refusal to live with him:</p><p> Provided, further that no warrant shall be issued for the recovery of any amount due under this direction unless application be made to the Court to levy such amount within a period of one year from the date on which it became due.</p><p> (4) No wife shall be entitled to receive an allowance from her husband under this section if she is living in adultery, or if, without any sufficient reason she refuses to live with her husband, or if they are living separately by mutual consent.</p><p> (5) On proof that any wife in whose favor an order has been made under this section is living in adultery, or that without sufficient reason she refuses to live with her husband, or that they are living separately by mutual consent, the Magistrate shall cancel the order.</p><p> (6) All evidence under this Chapter shall be taken in the presence of the husband or father, as the case may be, or, when his personal attendance is dispensed with, in the presence of his pleader, and shall be recorded in :he manner prescribed in the case of summons-cases:</p><p> Provided that if the Magistrate is satisfied that he is willfully avoiding service, or willfully neglects to attend the Court, the Magistrate may proceed to hear and determine the case ex parte. Any order so made may be set aside for good cause shown, on application made within three months from the date thereof.</p><p> (7) The Court in dealing with applications under this section shall have power to make such order as to costs as may be just.</p><p> (8) Proceedings under this section may be taken against any person in any district where he resides or is, or where he last resided with his wife or, as the case may be, the mother of the illegitimate child.' </p><p>It is obvious that it confers power to order maintenance, on District Magistrates, Presidency Magistrates, Sub-Divisional Magistrates and Magistrates of the 1st Class: Courts which are indisputably criminal Courts and nto civil Courts. Sub-section (6) provides that all evidence under this Chapter has to be taken in the presence of the husband or father, as the case may be, or when his personal attendance is dispensed with, in the presence of his pleader and it is to be recorded in the manner prescribed in the case of summons-cases. This is a further indication that the proceedings are criminal proceedings and nto civil proceedings. The argument that there is no penalty imposed by this section and the proceedings thereforee, cannto be described as 'criminal' is also unacceptable because according to Section 488(3), which provides for enforcement of orders, in certain circumstances, the person in default can be imprisoned for a term which may extend to one month or until payment, if sooner made, though I should nto be understood to hold this consideration to be conclusive on the point either way. It is obvious that the proceedings envisaged by Chapter xxxvi of the Code cannto be considered to be purely civil proceedings, though the person in default, against whom maintenance order is sought, may nto be an accused person whose examination without oath is mandatory as prescribed by Section 342 of the Code and he may be entitled to appear as a witness as well. I am aware of some conflict of judicial opinion in some old cases where on the ground that the procedure of trying maintenance applications being that of a summons case, failure to examine the person proceeded against under Section 342 of the Code, was held to vitiate the proceedings, but that conflict was set at rest by later decisions in which this section was held inapplicable to proceedings under S. 488. However, consistently all the Courts dealing with that question had assumed that the proceedings were criminal proceedings governed by the Code of Criminal Procedure, both in regard to the trial and the power of revision of the Court of the Sessions Judge and of the High Court.</p><p>2. Chapter 7-A of Vol. Iii of Rules and Orders of the Punjab High Court dealing with the maintenance cases also recites that proceedings under Section 488 of the Code of Criminal Procedure are of a criminal character and the provisions contained therein must, thereforee, be strictly followed. Keeping in view the scheme of Chapter xxxvi of the Code of Criminal Procedure and also the scheme of Articles 133 and 134 of the Constitution, I have little hesitation in holding that proceedings under Section 488, Cr. P. C., do fall within the contemplation of criminal proceedings within the meaning of Article 134. The expression 'criminal proceedings' in this Article, seems to me to be wide enough to include maintenance proceedings adjudicated upon by Magistrates initiated under Chapter xxxvI. Such maintenance proceedings are, in my view, criminal proceedings, designed by way of summary process to provide to deserted wives and neglected children, adjudication of their civil right of maintenance up to al limited amount, enforceable through criminal Courts, to avoid the notorious delays of civil proceedings, which may still be utilised for fuller relief under the general law in the ordinary civil Courts.</p><p>3. And then, what directly concerns this Court is the question of the nature of the proceedings on revision in this Court. These proceedings seem to me to be clearly criminal proceedings and I find no logical and rational basis for holding them to be civil proceedings so as to exclude the applicability of Article 134 of the Constitution. Nto only are they registered in this Court as criminal revisions but they are also presented in this Court under the Cr. P. C. and nto under the Civil P. C. The difference between the relative scope of a civil revision and of a criminal revision is well known and revision against an order under Section 488, Cr. P. C. has never been held to my knowledge to be a civil revision so as to exclude the applicability of Art. 134(1)(c) of the Constitution. The preliminary objection is, thereforee, nto easy to sustain.</p><p>4. Coming now to the merits, the learned counsel for the petitioner has very strongly argued that according to Section 488 of the Code, a separate order should have been made granting maintenance to the children. In my opinion, the question which concerns this Court in this present proceedings is nto so much as to what should have been done by the Magistrate while dealing with Section 488, Cr. P. C., but whether there is any such infirmity in the order of this Court as would justify a certificate of fitness within the contemplation of Article 134(1)(c) of the Constitution. It is nto argued, and it cannto be argued, that clause (a) or clause (b) of Article 134(1) covers this case. Clause (c) of this sub-article postulates a case in which a difficult question involving an unsettled principle requires to be finally determined by the Supreme Court. That does nto seem to be the case before me, and indeed no attempt has been made to show that there is any question of principle involved in the impugned order which requires authoritative decision by the Supreme Court. But this apart, the grant of maintenance in this case is a tentative order and it is always open to the authorities to ask for re-consideration and re-determination on account of change of circumstances. The children in these proceedings may, if they are so advised, even now apply to a competent Court under Section 488 for maintenance and if they make out a good claim to the satisfaction of the Court, I have nto the least doubt that suitable orders would be made in accordance with law. The revision on their behalf was held to be barred by time and this Court did nto consider it proper to exercise its suo motu power of revision in this regard. There is no decision on the merits against them by this Court and it has nto been shown that the impugned decision is based on any wrong principle of law which requires further examination by the Supreme Court.</p><p>5. For the foregoing reasons, this application fails and is dismissed.</p><p>6. Application dismissed.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'AIR1969Delhi298; 1969CriLJ1243; ILR1968Delhi545',
		'ratiodecidendi' => '',
		'respondent' => 'Sant Singh',
		'sub' => 'Criminal;Constitution',
		'link' => null,
		'circuit' => null
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	(int) 0 => '<p>1. In this application for a certificate of fitness for appeal to the Supreme Court from an order made on revision by this Court in proceedings under Section 488, Cr. P. C, a preliminary objection has been raised that Article 134(1)(c) of the Constitution is inapplicable because proceedings under Section 488 are civil proceedings and nto criminal proceedings. Reliance in support of this preliminary objection has been placed on a decision of the Supreme Court in Nand Lal Misra v. K.L. Misra, : 1960CriLJ1246 . Emphasis has been laid on the observations In this Judgment that Chapter xxxvi of the Code of Criminal Procedure is a self-contained one and the relief given under it is essentially of a civil nature. From this sentence, it is sought to be argued that the proceedings under section 488 are civil proceedings and nto criminal proceedings. Reliance has also been placed on a still more recent Judgment of the Supreme Court in Narayan Row v. Ishwar Lal, : [1965]57ITR149(SC) , in which while dealing with an appeal from an order made by the Bombay High Court under Article 226 of the Constitution, in a matter pertaining to recovery of income-tax, it was observed that the proceedings were civil proceedings within the meaning of Article 133(1)(c) of the Constitution. Reference has next been made to a Full Bench decision of the Punjab High Court in Kapur Singh v. Union of India, where also the question about the nature of proceedings under Articles 133 and 226 of the Constitution came up for discussion. In my opinion, none of these decisions throw helpful light on the question which the preliminary objection poses. Section 488 reads as under:',
	(int) 1 => '<p>'488. Order for maintenance of wives and children.--(1) If any person having sufficient means neglects or refuses to maintain his wife or his legitimate or illegitimate child unable to maintain itself, the District Magistrate, a Presidency Magistrate, a Sub-Divisional Magistrate or 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, at such monthly rate, nto exceeding five hundred rupees in the whole, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate from time to time directs.',
	(int) 2 => '<p> (2) Such allowance shall be payable from the date of the order, or if so ordered from the date of the application for maintenance.',
	(int) 3 => '<p> (3) If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in manner hereinbefore provided for levying fines, and may sentence such person, for the whole or any part of each month's allowance remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made:',
	(int) 4 => '<p> Provided that, if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if ho is satisfied that there is just ground for so doing.',
	(int) 5 => '<p> If a husband has contracted marriage with another wife or keeps a mistress, it shall be considered to be just ground for his wife's refusal to live with him:',
	(int) 6 => '<p> Provided, further that no warrant shall be issued for the recovery of any amount due under this direction unless application be made to the Court to levy such amount within a period of one year from the date on which it became due.',
	(int) 7 => '<p> (4) No wife shall be entitled to receive an allowance from her husband under this section if she is living in adultery, or if, without any sufficient reason she refuses to live with her husband, or if they are living separately by mutual consent.',
	(int) 8 => '<p> (5) On proof that any wife in whose favor an order has been made under this section is living in adultery, or that without sufficient reason she refuses to live with her husband, or that they are living separately by mutual consent, the Magistrate shall cancel the order.',
	(int) 9 => '<p> (6) All evidence under this Chapter shall be taken in the presence of the husband or father, as the case may be, or, when his personal attendance is dispensed with, in the presence of his pleader, and shall be recorded in :he manner prescribed in the case of summons-cases:',
	(int) 10 => '<p> Provided that if the Magistrate is satisfied that he is willfully avoiding service, or willfully neglects to attend the Court, the Magistrate may proceed to hear and determine the case ex parte. Any order so made may be set aside for good cause shown, on application made within three months from the date thereof.',
	(int) 11 => '<p> (7) The Court in dealing with applications under this section shall have power to make such order as to costs as may be just.',
	(int) 12 => '<p> (8) Proceedings under this section may be taken against any person in any district where he resides or is, or where he last resided with his wife or, as the case may be, the mother of the illegitimate child.' ',
	(int) 13 => '<p>It is obvious that it confers power to order maintenance, on District Magistrates, Presidency Magistrates, Sub-Divisional Magistrates and Magistrates of the 1st Class: Courts which are indisputably criminal Courts and nto civil Courts. Sub-section (6) provides that all evidence under this Chapter has to be taken in the presence of the husband or father, as the case may be, or when his personal attendance is dispensed with, in the presence of his pleader and it is to be recorded in the manner prescribed in the case of summons-cases. This is a further indication that the proceedings are criminal proceedings and nto civil proceedings. The argument that there is no penalty imposed by this section and the proceedings thereforee, cannto be described as 'criminal' is also unacceptable because according to Section 488(3), which provides for enforcement of orders, in certain circumstances, the person in default can be imprisoned for a term which may extend to one month or until payment, if sooner made, though I should nto be understood to hold this consideration to be conclusive on the point either way. It is obvious that the proceedings envisaged by Chapter xxxvi of the Code cannto be considered to be purely civil proceedings, though the person in default, against whom maintenance order is sought, may nto be an accused person whose examination without oath is mandatory as prescribed by Section 342 of the Code and he may be entitled to appear as a witness as well. I am aware of some conflict of judicial opinion in some old cases where on the ground that the procedure of trying maintenance applications being that of a summons case, failure to examine the person proceeded against under Section 342 of the Code, was held to vitiate the proceedings, but that conflict was set at rest by later decisions in which this section was held inapplicable to proceedings under S. 488. However, consistently all the Courts dealing with that question had assumed that the proceedings were criminal proceedings governed by the Code of Criminal Procedure, both in regard to the trial and the power of revision of the Court of the Sessions Judge and of the High Court.',
	(int) 14 => '<p>2. Chapter 7-A of Vol. Iii of Rules and Orders of the Punjab High Court dealing with the maintenance cases also recites that proceedings under Section 488 of the Code of Criminal Procedure are of a criminal character and the provisions contained therein must, thereforee, be strictly followed. Keeping in view the scheme of Chapter xxxvi of the Code of Criminal Procedure and also the scheme of Articles 133 and 134 of the Constitution, I have little hesitation in holding that proceedings under Section 488, Cr. P. C., do fall within the contemplation of criminal proceedings within the meaning of Article 134. The expression 'criminal proceedings' in this Article, seems to me to be wide enough to include maintenance proceedings adjudicated upon by Magistrates initiated under Chapter xxxvI. Such maintenance proceedings are, in my view, criminal proceedings, designed by way of summary process to provide to deserted wives and neglected children, adjudication of their civil right of maintenance up to al limited amount, enforceable through criminal Courts, to avoid the notorious delays of civil proceedings, which may still be utilised for fuller relief under the general law in the ordinary civil Courts.',
	(int) 15 => '<p>3. And then, what directly concerns this Court is the question of the nature of the proceedings on revision in this Court. These proceedings seem to me to be clearly criminal proceedings and I find no logical and rational basis for holding them to be civil proceedings so as to exclude the applicability of Article 134 of the Constitution. Nto only are they registered in this Court as criminal revisions but they are also presented in this Court under the Cr. P. C. and nto under the Civil P. C. The difference between the relative scope of a civil revision and of a criminal revision is well known and revision against an order under Section 488, Cr. P. C. has never been held to my knowledge to be a civil revision so as to exclude the applicability of Art. 134(1)(c) of the Constitution. The preliminary objection is, thereforee, nto easy to sustain.',
	(int) 16 => '<p>4. Coming now to the merits, the learned counsel for the petitioner has very strongly argued that according to Section 488 of the Code, a separate order should have been made granting maintenance to the children. In my opinion, the question which concerns this Court in this present proceedings is nto so much as to what should have been done by the Magistrate while dealing with Section 488, Cr. P. C., but whether there is any such infirmity in the order of this Court as would justify a certificate of fitness within the contemplation of Article 134(1)(c) of the Constitution. It is nto argued, and it cannto be argued, that clause (a) or clause (b) of Article 134(1) covers this case. Clause (c) of this sub-article postulates a case in which a difficult question involving an unsettled principle requires to be finally determined by the Supreme Court. That does nto seem to be the case before me, and indeed no attempt has been made to show that there is any question of principle involved in the impugned order which requires authoritative decision by the Supreme Court. But this apart, the grant of maintenance in this case is a tentative order and it is always open to the authorities to ask for re-consideration and re-determination on account of change of circumstances. The children in these proceedings may, if they are so advised, even now apply to a competent Court under Section 488 for maintenance and if they make out a good claim to the satisfaction of the Court, I have nto the least doubt that suitable orders would be made in accordance with law. The revision on their behalf was held to be barred by time and this Court did nto consider it proper to exercise its suo motu power of revision in this regard. There is no decision on the merits against them by this Court and it has nto been shown that the impugned decision is based on any wrong principle of law which requires further examination by the Supreme Court.',
	(int) 17 => '<p>5. For the foregoing reasons, this application fails and is dismissed.',
	(int) 18 => '<p>6. Application dismissed.<p>',
	(int) 19 => '<p>'
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(8) Proceedings under this section may be taken against any person in any district where he resides or is, or where he last resided with his wife or, as the case may be, the mother of the illegitimate child.'

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	'title_for_layout' => 'Harbhajan Kaur Vs Sant Singh - Citation 681173 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '681173',
			'acts' => '<a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 133, 134, 134(1) and 226; <a href="/act/133280/code-of-criminal-procedure-1898-complete-act">Code of Criminal Procedure (CrPC) , 1898</a> - Sections 342, 488, 488(3) and 488(6)',
			'appealno' => 'Criminal Misc. (SCA) No. 855 of 1968',
			'appellant' => 'Harbhajan Kaur',
			'authreffered' => '',
			'casename' => 'Harbhajan Kaur Vs. Sant Singh',
			'casenote' => ' (i) 
Criminal Procedure Code (V of 1898)- Section 488--Proceedings under--nature of--are criminal proceedings and nto Civil proceedings.; The proceedings envisaged by  Chapter xxxvI of the Code cannto be considered 
purely civil proceedings, though the person in default, against whom maintenance order is sought, may nto be an accused person, whose examination without oath is mandatory as prescribed by section 342 of the Code and he may be entitled to appear as a witness as 
well.; Chapter 7-A of Vol. III of Rules and Orders of the Punjab High Court dealing with the maintenance cases also recites that proceedings under section 488 of the Code of Criminal Procedure are of criminal character and the provisions contained therein must, thereforee, be strictly followed.; (ii) Constitution of India - Article 134--Proceedings under Section 488 within the contemplation of--expression--'Criminal proceedings'--scope of.;  That the proceedings under Section 488 Cr. P.C. do fall within the contemplation of criminal proceedings within the meaning of Article 134. 
The expression 'Criminal Proceedings' in this Article is wide enough to include maintenance proceedings adjucated upon by Magistrate initiated under Chapter xxxvI. Such maintenance proceedings are criminal proceedings designed by way of summary process to provide to deserted wives and neglected children adjudication of their civil right of maintenance up to a limited amount enforceable through criminal courts, to avoid the notorious delays of civil proceedings, which may still be utilised for fuller relief under the general law 
in the ordinary civil courts. - Section 13: [Altamas Kabir & Cyriac Joseph,JJ] Custody of child - Welfare of child vis--vis comity of Courts - The minor girl child of 3 1/2 years was brought to India by her mother. The minor girl was a citizen of U.K. being born in U.K. her parents had set up their matrimonial home in U.K. and had acquired status of permanent residents of U.K. The child with her mother was supposed to return to U.K. but the mother cancelled her tickets and remained behind in India. The husband thereupon started procededings before the High Court of Justice, Family Division. U.K. praying for an order that the minor child be made a ward of the Court and for a direction upon the wife to return the minor child to the jurisdiction of the said Court. A further direction was given for the passport and other international travel documents of the minor child to be handed over to the Solicitors of the husband. A petition seeking protection of minor child was thereupon filed by father of the husband before Delhi High Court. A direction for handing over custody of child to father of husband was also sought. The High Court considering fact that the U.K. court was already in seisin of  matter and had passed an interim order and by relying on principle of comity of Nations and Comity of Judgments of the courts of two different countries in deciding the matter directed the wife to take the child of her own to U.K.or hand it over to father of husband to be taken to U.K. as measure of interim custody and that it would be for the U.K. Court to decide the question of custody  -  Order was challenged by wife -  Held, the order of High Court was not liable to be interfered with. Although, on first impression, it would appear that the interests of the minor child would best be served if she is allowed to remain with the wife, the order of U.K. court cannot be lost sight of., The order of U.K. Court except for insisiting that the minor be returned to its jurisdiction, the English Court did not intend to separate the child from the mother until a final decision was taken with regard to the custody of the child. The ultimate decision in that regard has to be left to the English Court having regard to the nationality of the child and the fact that both the parents had worked for gain in the U.K. and had also acquired permanent resident status in the U.K. English Court has not directed that the custody of the child should be handed over to  the father but that the child should be returned to the jurisdiction of the Courts in the U.K. which would then proceed to determine as to who would be best suited to have the custody of the child. The High Court has taken into consideration both the questions relating to the Comity of Courts as well as the interest of the minor child, which, no doubt, is one of the most important considerations in matters relating to custody of a minor child.  -  Provided that, if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if ho is satisfied that there is just ground for so doing. Provided that if the Magistrate is satisfied that he is willfully avoiding service, or willfully neglects to attend the Court, the Magistrate may proceed to hear and determine the case ex parte. Any order so made may be set aside for good cause shown, on application made within three months from the date thereof. It is obvious that the proceedings envisaged by Chapter xxxvi of the Code cannto be considered to be purely civil proceedings, though the person in default, against whom maintenance order is sought, may nto be an accused person whose examination without oath is mandatory as prescribed by Section 342 of the Code and he may be entitled to appear as a witness as well. I am aware of some conflict of judicial opinion in some old cases where on the ground that the procedure of trying maintenance applications being that of a summons case, failure to examine the person proceeded against under Section 342 of the Code, was held to vitiate the proceedings, but that conflict was set at rest by later decisions in which this section was held inapplicable to proceedings under S. These proceedings seem to me to be clearly criminal proceedings and I find no logical and rational basis for holding them to be civil proceedings so as to exclude the applicability of Article 134 of the Constitution. The difference between the relative scope of a civil revision and of a criminal revision is well known and revision against an order under Section 488, Cr. The children in these proceedings may, if they are so advised, even now apply to a competent Court under Section 488 for maintenance and if they make out a good claim to the satisfaction of the Court, I have nto the least doubt that suitable orders would be made in accordance with law.',
			'caseanalysis' => null,
			'casesref' => 'Kapur Singh v. Union of India;',
			'citingcases' => '',
			'counselplain' => ' O.P. Sharma, Adv',
			'counseldef' => ' Madan Bhatia, Adv.',
			'court' => 'Delhi',
			'court_type' => 'HC',
			'decidedon' => '1968-12-17',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' I.D. Dua, C.J.',
			'judgement' => '<p style="text-align: justify;">1. In this application for a certificate of fitness for appeal to the Supreme Court from an order made on revision by this Court in proceedings under Section 488, Cr. P. C, a preliminary objection has been raised that Article 134(1)(c) of the Constitution is inapplicable because proceedings under Section 488 are civil proceedings and nto criminal proceedings. Reliance in support of this preliminary objection has been placed on a decision of the Supreme Court in Nand Lal Misra v. K.L. Misra, : 1960CriLJ1246 . Emphasis has been laid on the observations In this Judgment that Chapter xxxvi of the Code of Criminal Procedure is a self-contained one and the relief given under it is essentially of a civil nature. From this sentence, it is sought to be argued that the proceedings under section 488 are civil proceedings and nto criminal proceedings. Reliance has also been placed on a still more recent Judgment of the Supreme Court in Narayan Row v. Ishwar Lal, : [1965]57ITR149(SC) , in which while dealing with an appeal from an order made by the Bombay High Court under Article 226 of the Constitution, in a matter pertaining to recovery of income-tax, it was observed that the proceedings were civil proceedings within the meaning of Article 133(1)(c) of the Constitution. Reference has next been made to a Full Bench decision of the Punjab High Court in Kapur Singh v. Union of India, where also the question about the nature of proceedings under Articles 133 and 226 of the Constitution came up for discussion. In my opinion, none of these decisions throw helpful light on the question which the preliminary objection poses. Section 488 reads as under:</p><p style="text-align: justify;">'488. Order for maintenance of wives and children.--(1) If any person having sufficient means neglects or refuses to maintain his wife or his legitimate or illegitimate child unable to maintain itself, the District Magistrate, a Presidency Magistrate, a Sub-Divisional Magistrate or 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, at such monthly rate, nto exceeding five hundred rupees in the whole, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate from time to time directs.</p><p style="text-align: justify;"> (2) Such allowance shall be payable from the date of the order, or if so ordered from the date of the application for maintenance.</p><p style="text-align: justify;"> (3) If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in manner hereinbefore provided for levying fines, and may sentence such person, for the whole or any part of each month's allowance remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made:</p><p style="text-align: justify;"> Provided that, if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if ho is satisfied that there is just ground for so doing.</p><p style="text-align: justify;"> If a husband has contracted marriage with another wife or keeps a mistress, it shall be considered to be just ground for his wife's refusal to live with him:</p><p style="text-align: justify;"> Provided, further that no warrant shall be issued for the recovery of any amount due under this direction unless application be made to the Court to levy such amount within a period of one year from the date on which it became due.</p><p style="text-align: justify;"> (4) No wife shall be entitled to receive an allowance from her husband under this section if she is living in adultery, or if, without any sufficient reason she refuses to live with her husband, or if they are living separately by mutual consent.</p><p style="text-align: justify;"> (5) On proof that any wife in whose favor an order has been made under this section is living in adultery, or that without sufficient reason she refuses to live with her husband, or that they are living separately by mutual consent, the Magistrate shall cancel the order.</p><p style="text-align: justify;"> (6) All evidence under this Chapter shall be taken in the presence of the husband or father, as the case may be, or, when his personal attendance is dispensed with, in the presence of his pleader, and shall be recorded in :he manner prescribed in the case of summons-cases:</p><p style="text-align: justify;"> Provided that if the Magistrate is satisfied that he is willfully avoiding service, or willfully neglects to attend the Court, the Magistrate may proceed to hear and determine the case ex parte. Any order so made may be set aside for good cause shown, on application made within three months from the date thereof.</p><p style="text-align: justify;"> (7) The Court in dealing with applications under this section shall have power to make such order as to costs as may be just.</p><p style="text-align: justify;"> (8) Proceedings under this section may be taken against any person in any district where he resides or is, or where he last resided with his wife or, as the case may be, the mother of the illegitimate child.' </p><p style="text-align: justify;">It is obvious that it confers power to order maintenance, on District Magistrates, Presidency Magistrates, Sub-Divisional Magistrates and Magistrates of the 1st Class: Courts which are indisputably criminal Courts and nto civil Courts. Sub-section (6) provides that all evidence under this Chapter has to be taken in the presence of the husband or father, as the case may be, or when his personal attendance is dispensed with, in the presence of his pleader and it is to be recorded in the manner prescribed in the case of summons-cases. This is a further indication that the proceedings are criminal proceedings and nto civil proceedings. The argument that there is no penalty imposed by this section and the proceedings thereforee, cannto be described as 'criminal' is also unacceptable because according to Section 488(3), which provides for enforcement of orders, in certain circumstances, the person in default can be imprisoned for a term which may extend to one month or until payment, if sooner made, though I should nto be understood to hold this consideration to be conclusive on the point either way. It is obvious that the proceedings envisaged by Chapter xxxvi of the Code cannto be considered to be purely civil proceedings, though the person in default, against whom maintenance order is sought, may nto be an accused person whose examination without oath is mandatory as prescribed by Section 342 of the Code and he may be entitled to appear as a witness as well. I am aware of some conflict of judicial opinion in some old cases where on the ground that the procedure of trying maintenance applications being that of a summons case, failure to examine the person proceeded against under Section 342 of the Code, was held to vitiate the proceedings, but that conflict was set at rest by later decisions in which this section was held inapplicable to proceedings under S. 488. However, consistently all the Courts dealing with that question had assumed that the proceedings were criminal proceedings governed by the Code of Criminal Procedure, both in regard to the trial and the power of revision of the Court of the Sessions Judge and of the High Court.</p><p style="text-align: justify;">2. Chapter 7-A of Vol. Iii of Rules and Orders of the Punjab High Court dealing with the maintenance cases also recites that proceedings under Section 488 of the Code of Criminal Procedure are of a criminal character and the provisions contained therein must, thereforee, be strictly followed. Keeping in view the scheme of Chapter xxxvi of the Code of Criminal Procedure and also the scheme of Articles 133 and 134 of the Constitution, I have little hesitation in holding that proceedings under Section 488, Cr. P. C., do fall within the contemplation of criminal proceedings within the meaning of Article 134. The expression 'criminal proceedings' in this Article, seems to me to be wide enough to include maintenance proceedings adjudicated upon by Magistrates initiated under Chapter xxxvI. Such maintenance proceedings are, in my view, criminal proceedings, designed by way of summary process to provide to deserted wives and neglected children, adjudication of their civil right of maintenance up to al limited amount, enforceable through criminal Courts, to avoid the notorious delays of civil proceedings, which may still be utilised for fuller relief under the general law in the ordinary civil Courts.</p><p style="text-align: justify;">3. And then, what directly concerns this Court is the question of the nature of the proceedings on revision in this Court. These proceedings seem to me to be clearly criminal proceedings and I find no logical and rational basis for holding them to be civil proceedings so as to exclude the applicability of Article 134 of the Constitution. Nto only are they registered in this Court as criminal revisions but they are also presented in this Court under the Cr. P. C. and nto under the Civil P. C. The difference between the relative scope of a civil revision and of a criminal revision is well known and revision against an order under Section 488, Cr. P. C. has never been held to my knowledge to be a civil revision so as to exclude the applicability of Art. 134(1)(c) of the Constitution. The preliminary objection is, thereforee, nto easy to sustain.</p><p style="text-align: justify;">4. Coming now to the merits, the learned counsel for the petitioner has very strongly argued that according to Section 488 of the Code, a separate order should have been made granting maintenance to the children. In my opinion, the question which concerns this Court in this present proceedings is nto so much as to what should have been done by the Magistrate while dealing with Section 488, Cr. P. C., but whether there is any such infirmity in the order of this Court as would justify a certificate of fitness within the contemplation of Article 134(1)(c) of the Constitution. It is nto argued, and it cannto be argued, that clause (a) or clause (b) of Article 134(1) covers this case. Clause (c) of this sub-article postulates a case in which a difficult question involving an unsettled principle requires to be finally determined by the Supreme Court. That does nto seem to be the case before me, and indeed no attempt has been made to show that there is any question of principle involved in the impugned order which requires authoritative decision by the Supreme Court. But this apart, the grant of maintenance in this case is a tentative order and it is always open to the authorities to ask for re-consideration and re-determination on account of change of circumstances. The children in these proceedings may, if they are so advised, even now apply to a competent Court under Section 488 for maintenance and if they make out a good claim to the satisfaction of the Court, I have nto the least doubt that suitable orders would be made in accordance with law. The revision on their behalf was held to be barred by time and this Court did nto consider it proper to exercise its suo motu power of revision in this regard. There is no decision on the merits against them by this Court and it has nto been shown that the impugned decision is based on any wrong principle of law which requires further examination by the Supreme Court.</p><p style="text-align: justify;">5. For the foregoing reasons, this application fails and is dismissed.</p><p style="text-align: justify;">6. Application dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => 'AIR1969Delhi298; 1969CriLJ1243; ILR1968Delhi545',
			'ratiodecidendi' => '',
			'respondent' => 'Sant Singh',
			'sub' => 'Criminal;Constitution',
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			'circuit' => null
		)
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	'casename_url' => 'harbhajan-kaur-vs-sant-singh',
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$title_for_layout = 'Harbhajan Kaur Vs Sant Singh - Citation 681173 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '681173',
		'acts' => '<a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 133, 134, 134(1) and 226; <a href="/act/133280/code-of-criminal-procedure-1898-complete-act">Code of Criminal Procedure (CrPC) , 1898</a> - Sections 342, 488, 488(3) and 488(6)',
		'appealno' => 'Criminal Misc. (SCA) No. 855 of 1968',
		'appellant' => 'Harbhajan Kaur',
		'authreffered' => '',
		'casename' => 'Harbhajan Kaur Vs. Sant Singh',
		'casenote' => ' (i) 
Criminal Procedure Code (V of 1898)- Section 488--Proceedings under--nature of--are criminal proceedings and nto Civil proceedings.; The proceedings envisaged by  Chapter xxxvI of the Code cannto be considered 
purely civil proceedings, though the person in default, against whom maintenance order is sought, may nto be an accused person, whose examination without oath is mandatory as prescribed by section 342 of the Code and he may be entitled to appear as a witness as 
well.; Chapter 7-A of Vol. III of Rules and Orders of the Punjab High Court dealing with the maintenance cases also recites that proceedings under section 488 of the Code of Criminal Procedure are of criminal character and the provisions contained therein must, thereforee, be strictly followed.; (ii) Constitution of India - Article 134--Proceedings under Section 488 within the contemplation of--expression--'Criminal proceedings'--scope of.;  That the proceedings under Section 488 Cr. P.C. do fall within the contemplation of criminal proceedings within the meaning of Article 134. 
The expression 'Criminal Proceedings' in this Article is wide enough to include maintenance proceedings adjucated upon by Magistrate initiated under Chapter xxxvI. Such maintenance proceedings are criminal proceedings designed by way of summary process to provide to deserted wives and neglected children adjudication of their civil right of maintenance up to a limited amount enforceable through criminal courts, to avoid the notorious delays of civil proceedings, which may still be utilised for fuller relief under the general law 
in the ordinary civil courts. - Section 13: [Altamas Kabir & Cyriac Joseph,JJ] Custody of child - Welfare of child vis--vis comity of Courts - The minor girl child of 3 1/2 years was brought to India by her mother. The minor girl was a citizen of U.K. being born in U.K. her parents had set up their matrimonial home in U.K. and had acquired status of permanent residents of U.K. The child with her mother was supposed to return to U.K. but the mother cancelled her tickets and remained behind in India. The husband thereupon started procededings before the High Court of Justice, Family Division. U.K. praying for an order that the minor child be made a ward of the Court and for a direction upon the wife to return the minor child to the jurisdiction of the said Court. A further direction was given for the passport and other international travel documents of the minor child to be handed over to the Solicitors of the husband. A petition seeking protection of minor child was thereupon filed by father of the husband before Delhi High Court. A direction for handing over custody of child to father of husband was also sought. The High Court considering fact that the U.K. court was already in seisin of  matter and had passed an interim order and by relying on principle of comity of Nations and Comity of Judgments of the courts of two different countries in deciding the matter directed the wife to take the child of her own to U.K.or hand it over to father of husband to be taken to U.K. as measure of interim custody and that it would be for the U.K. Court to decide the question of custody  -  Order was challenged by wife -  Held, the order of High Court was not liable to be interfered with. Although, on first impression, it would appear that the interests of the minor child would best be served if she is allowed to remain with the wife, the order of U.K. court cannot be lost sight of., The order of U.K. Court except for insisiting that the minor be returned to its jurisdiction, the English Court did not intend to separate the child from the mother until a final decision was taken with regard to the custody of the child. The ultimate decision in that regard has to be left to the English Court having regard to the nationality of the child and the fact that both the parents had worked for gain in the U.K. and had also acquired permanent resident status in the U.K. English Court has not directed that the custody of the child should be handed over to  the father but that the child should be returned to the jurisdiction of the Courts in the U.K. which would then proceed to determine as to who would be best suited to have the custody of the child. The High Court has taken into consideration both the questions relating to the Comity of Courts as well as the interest of the minor child, which, no doubt, is one of the most important considerations in matters relating to custody of a minor child.  -  Provided that, if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if ho is satisfied that there is just ground for so doing. Provided that if the Magistrate is satisfied that he is willfully avoiding service, or willfully neglects to attend the Court, the Magistrate may proceed to hear and determine the case ex parte. Any order so made may be set aside for good cause shown, on application made within three months from the date thereof. It is obvious that the proceedings envisaged by Chapter xxxvi of the Code cannto be considered to be purely civil proceedings, though the person in default, against whom maintenance order is sought, may nto be an accused person whose examination without oath is mandatory as prescribed by Section 342 of the Code and he may be entitled to appear as a witness as well. I am aware of some conflict of judicial opinion in some old cases where on the ground that the procedure of trying maintenance applications being that of a summons case, failure to examine the person proceeded against under Section 342 of the Code, was held to vitiate the proceedings, but that conflict was set at rest by later decisions in which this section was held inapplicable to proceedings under S. These proceedings seem to me to be clearly criminal proceedings and I find no logical and rational basis for holding them to be civil proceedings so as to exclude the applicability of Article 134 of the Constitution. The difference between the relative scope of a civil revision and of a criminal revision is well known and revision against an order under Section 488, Cr. The children in these proceedings may, if they are so advised, even now apply to a competent Court under Section 488 for maintenance and if they make out a good claim to the satisfaction of the Court, I have nto the least doubt that suitable orders would be made in accordance with law.',
		'caseanalysis' => null,
		'casesref' => 'Kapur Singh v. Union of India;',
		'citingcases' => '',
		'counselplain' => ' O.P. Sharma, Adv',
		'counseldef' => ' Madan Bhatia, Adv.',
		'court' => 'Delhi',
		'court_type' => 'HC',
		'decidedon' => '1968-12-17',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' I.D. Dua, C.J.',
		'judgement' => '<p>1. In this application for a certificate of fitness for appeal to the Supreme Court from an order made on revision by this Court in proceedings under Section 488, Cr. P. C, a preliminary objection has been raised that Article 134(1)(c) of the Constitution is inapplicable because proceedings under Section 488 are civil proceedings and nto criminal proceedings. Reliance in support of this preliminary objection has been placed on a decision of the Supreme Court in Nand Lal Misra v. K.L. Misra, : 1960CriLJ1246 . Emphasis has been laid on the observations In this Judgment that Chapter xxxvi of the Code of Criminal Procedure is a self-contained one and the relief given under it is essentially of a civil nature. From this sentence, it is sought to be argued that the proceedings under section 488 are civil proceedings and nto criminal proceedings. Reliance has also been placed on a still more recent Judgment of the Supreme Court in Narayan Row v. Ishwar Lal, : [1965]57ITR149(SC) , in which while dealing with an appeal from an order made by the Bombay High Court under Article 226 of the Constitution, in a matter pertaining to recovery of income-tax, it was observed that the proceedings were civil proceedings within the meaning of Article 133(1)(c) of the Constitution. Reference has next been made to a Full Bench decision of the Punjab High Court in Kapur Singh v. Union of India, where also the question about the nature of proceedings under Articles 133 and 226 of the Constitution came up for discussion. In my opinion, none of these decisions throw helpful light on the question which the preliminary objection poses. Section 488 reads as under:</p><p>'488. Order for maintenance of wives and children.--(1) If any person having sufficient means neglects or refuses to maintain his wife or his legitimate or illegitimate child unable to maintain itself, the District Magistrate, a Presidency Magistrate, a Sub-Divisional Magistrate or 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, at such monthly rate, nto exceeding five hundred rupees in the whole, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate from time to time directs.</p><p> (2) Such allowance shall be payable from the date of the order, or if so ordered from the date of the application for maintenance.</p><p> (3) If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in manner hereinbefore provided for levying fines, and may sentence such person, for the whole or any part of each month's allowance remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made:</p><p> Provided that, if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if ho is satisfied that there is just ground for so doing.</p><p> If a husband has contracted marriage with another wife or keeps a mistress, it shall be considered to be just ground for his wife's refusal to live with him:</p><p> Provided, further that no warrant shall be issued for the recovery of any amount due under this direction unless application be made to the Court to levy such amount within a period of one year from the date on which it became due.</p><p> (4) No wife shall be entitled to receive an allowance from her husband under this section if she is living in adultery, or if, without any sufficient reason she refuses to live with her husband, or if they are living separately by mutual consent.</p><p> (5) On proof that any wife in whose favor an order has been made under this section is living in adultery, or that without sufficient reason she refuses to live with her husband, or that they are living separately by mutual consent, the Magistrate shall cancel the order.</p><p> (6) All evidence under this Chapter shall be taken in the presence of the husband or father, as the case may be, or, when his personal attendance is dispensed with, in the presence of his pleader, and shall be recorded in :he manner prescribed in the case of summons-cases:</p><p> Provided that if the Magistrate is satisfied that he is willfully avoiding service, or willfully neglects to attend the Court, the Magistrate may proceed to hear and determine the case ex parte. Any order so made may be set aside for good cause shown, on application made within three months from the date thereof.</p><p> (7) The Court in dealing with applications under this section shall have power to make such order as to costs as may be just.</p><p> (8) Proceedings under this section may be taken against any person in any district where he resides or is, or where he last resided with his wife or, as the case may be, the mother of the illegitimate child.' </p><p>It is obvious that it confers power to order maintenance, on District Magistrates, Presidency Magistrates, Sub-Divisional Magistrates and Magistrates of the 1st Class: Courts which are indisputably criminal Courts and nto civil Courts. Sub-section (6) provides that all evidence under this Chapter has to be taken in the presence of the husband or father, as the case may be, or when his personal attendance is dispensed with, in the presence of his pleader and it is to be recorded in the manner prescribed in the case of summons-cases. This is a further indication that the proceedings are criminal proceedings and nto civil proceedings. The argument that there is no penalty imposed by this section and the proceedings thereforee, cannto be described as 'criminal' is also unacceptable because according to Section 488(3), which provides for enforcement of orders, in certain circumstances, the person in default can be imprisoned for a term which may extend to one month or until payment, if sooner made, though I should nto be understood to hold this consideration to be conclusive on the point either way. It is obvious that the proceedings envisaged by Chapter xxxvi of the Code cannto be considered to be purely civil proceedings, though the person in default, against whom maintenance order is sought, may nto be an accused person whose examination without oath is mandatory as prescribed by Section 342 of the Code and he may be entitled to appear as a witness as well. I am aware of some conflict of judicial opinion in some old cases where on the ground that the procedure of trying maintenance applications being that of a summons case, failure to examine the person proceeded against under Section 342 of the Code, was held to vitiate the proceedings, but that conflict was set at rest by later decisions in which this section was held inapplicable to proceedings under S. 488. However, consistently all the Courts dealing with that question had assumed that the proceedings were criminal proceedings governed by the Code of Criminal Procedure, both in regard to the trial and the power of revision of the Court of the Sessions Judge and of the High Court.</p><p>2. Chapter 7-A of Vol. Iii of Rules and Orders of the Punjab High Court dealing with the maintenance cases also recites that proceedings under Section 488 of the Code of Criminal Procedure are of a criminal character and the provisions contained therein must, thereforee, be strictly followed. Keeping in view the scheme of Chapter xxxvi of the Code of Criminal Procedure and also the scheme of Articles 133 and 134 of the Constitution, I have little hesitation in holding that proceedings under Section 488, Cr. P. C., do fall within the contemplation of criminal proceedings within the meaning of Article 134. The expression 'criminal proceedings' in this Article, seems to me to be wide enough to include maintenance proceedings adjudicated upon by Magistrates initiated under Chapter xxxvI. Such maintenance proceedings are, in my view, criminal proceedings, designed by way of summary process to provide to deserted wives and neglected children, adjudication of their civil right of maintenance up to al limited amount, enforceable through criminal Courts, to avoid the notorious delays of civil proceedings, which may still be utilised for fuller relief under the general law in the ordinary civil Courts.</p><p>3. And then, what directly concerns this Court is the question of the nature of the proceedings on revision in this Court. These proceedings seem to me to be clearly criminal proceedings and I find no logical and rational basis for holding them to be civil proceedings so as to exclude the applicability of Article 134 of the Constitution. Nto only are they registered in this Court as criminal revisions but they are also presented in this Court under the Cr. P. C. and nto under the Civil P. C. The difference between the relative scope of a civil revision and of a criminal revision is well known and revision against an order under Section 488, Cr. P. C. has never been held to my knowledge to be a civil revision so as to exclude the applicability of Art. 134(1)(c) of the Constitution. The preliminary objection is, thereforee, nto easy to sustain.</p><p>4. Coming now to the merits, the learned counsel for the petitioner has very strongly argued that according to Section 488 of the Code, a separate order should have been made granting maintenance to the children. In my opinion, the question which concerns this Court in this present proceedings is nto so much as to what should have been done by the Magistrate while dealing with Section 488, Cr. P. C., but whether there is any such infirmity in the order of this Court as would justify a certificate of fitness within the contemplation of Article 134(1)(c) of the Constitution. It is nto argued, and it cannto be argued, that clause (a) or clause (b) of Article 134(1) covers this case. Clause (c) of this sub-article postulates a case in which a difficult question involving an unsettled principle requires to be finally determined by the Supreme Court. That does nto seem to be the case before me, and indeed no attempt has been made to show that there is any question of principle involved in the impugned order which requires authoritative decision by the Supreme Court. But this apart, the grant of maintenance in this case is a tentative order and it is always open to the authorities to ask for re-consideration and re-determination on account of change of circumstances. The children in these proceedings may, if they are so advised, even now apply to a competent Court under Section 488 for maintenance and if they make out a good claim to the satisfaction of the Court, I have nto the least doubt that suitable orders would be made in accordance with law. The revision on their behalf was held to be barred by time and this Court did nto consider it proper to exercise its suo motu power of revision in this regard. There is no decision on the merits against them by this Court and it has nto been shown that the impugned decision is based on any wrong principle of law which requires further examination by the Supreme Court.</p><p>5. For the foregoing reasons, this application fails and is dismissed.</p><p>6. Application dismissed.<p></p><p>',
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		'prhistory' => '',
		'pubs' => 'AIR1969Delhi298; 1969CriLJ1243; ILR1968Delhi545',
		'ratiodecidendi' => '',
		'respondent' => 'Sant Singh',
		'sub' => 'Criminal;Constitution',
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$content = array(
	(int) 0 => '<p>1. In this application for a certificate of fitness for appeal to the Supreme Court from an order made on revision by this Court in proceedings under Section 488, Cr. P. C, a preliminary objection has been raised that Article 134(1)(c) of the Constitution is inapplicable because proceedings under Section 488 are civil proceedings and nto criminal proceedings. Reliance in support of this preliminary objection has been placed on a decision of the Supreme Court in Nand Lal Misra v. K.L. Misra, : 1960CriLJ1246 . Emphasis has been laid on the observations In this Judgment that Chapter xxxvi of the Code of Criminal Procedure is a self-contained one and the relief given under it is essentially of a civil nature. From this sentence, it is sought to be argued that the proceedings under section 488 are civil proceedings and nto criminal proceedings. Reliance has also been placed on a still more recent Judgment of the Supreme Court in Narayan Row v. Ishwar Lal, : [1965]57ITR149(SC) , in which while dealing with an appeal from an order made by the Bombay High Court under Article 226 of the Constitution, in a matter pertaining to recovery of income-tax, it was observed that the proceedings were civil proceedings within the meaning of Article 133(1)(c) of the Constitution. Reference has next been made to a Full Bench decision of the Punjab High Court in Kapur Singh v. Union of India, where also the question about the nature of proceedings under Articles 133 and 226 of the Constitution came up for discussion. In my opinion, none of these decisions throw helpful light on the question which the preliminary objection poses. Section 488 reads as under:',
	(int) 1 => '<p>'488. Order for maintenance of wives and children.--(1) If any person having sufficient means neglects or refuses to maintain his wife or his legitimate or illegitimate child unable to maintain itself, the District Magistrate, a Presidency Magistrate, a Sub-Divisional Magistrate or 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, at such monthly rate, nto exceeding five hundred rupees in the whole, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate from time to time directs.',
	(int) 2 => '<p> (2) Such allowance shall be payable from the date of the order, or if so ordered from the date of the application for maintenance.',
	(int) 3 => '<p> (3) If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in manner hereinbefore provided for levying fines, and may sentence such person, for the whole or any part of each month's allowance remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made:',
	(int) 4 => '<p> Provided that, if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if ho is satisfied that there is just ground for so doing.',
	(int) 5 => '<p> If a husband has contracted marriage with another wife or keeps a mistress, it shall be considered to be just ground for his wife's refusal to live with him:',
	(int) 6 => '<p> Provided, further that no warrant shall be issued for the recovery of any amount due under this direction unless application be made to the Court to levy such amount within a period of one year from the date on which it became due.',
	(int) 7 => '<p> (4) No wife shall be entitled to receive an allowance from her husband under this section if she is living in adultery, or if, without any sufficient reason she refuses to live with her husband, or if they are living separately by mutual consent.',
	(int) 8 => '<p> (5) On proof that any wife in whose favor an order has been made under this section is living in adultery, or that without sufficient reason she refuses to live with her husband, or that they are living separately by mutual consent, the Magistrate shall cancel the order.',
	(int) 9 => '<p> (6) All evidence under this Chapter shall be taken in the presence of the husband or father, as the case may be, or, when his personal attendance is dispensed with, in the presence of his pleader, and shall be recorded in :he manner prescribed in the case of summons-cases:',
	(int) 10 => '<p> Provided that if the Magistrate is satisfied that he is willfully avoiding service, or willfully neglects to attend the Court, the Magistrate may proceed to hear and determine the case ex parte. Any order so made may be set aside for good cause shown, on application made within three months from the date thereof.',
	(int) 11 => '<p> (7) The Court in dealing with applications under this section shall have power to make such order as to costs as may be just.',
	(int) 12 => '<p> (8) Proceedings under this section may be taken against any person in any district where he resides or is, or where he last resided with his wife or, as the case may be, the mother of the illegitimate child.' ',
	(int) 13 => '<p>It is obvious that it confers power to order maintenance, on District Magistrates, Presidency Magistrates, Sub-Divisional Magistrates and Magistrates of the 1st Class: Courts which are indisputably criminal Courts and nto civil Courts. Sub-section (6) provides that all evidence under this Chapter has to be taken in the presence of the husband or father, as the case may be, or when his personal attendance is dispensed with, in the presence of his pleader and it is to be recorded in the manner prescribed in the case of summons-cases. This is a further indication that the proceedings are criminal proceedings and nto civil proceedings. The argument that there is no penalty imposed by this section and the proceedings thereforee, cannto be described as 'criminal' is also unacceptable because according to Section 488(3), which provides for enforcement of orders, in certain circumstances, the person in default can be imprisoned for a term which may extend to one month or until payment, if sooner made, though I should nto be understood to hold this consideration to be conclusive on the point either way. It is obvious that the proceedings envisaged by Chapter xxxvi of the Code cannto be considered to be purely civil proceedings, though the person in default, against whom maintenance order is sought, may nto be an accused person whose examination without oath is mandatory as prescribed by Section 342 of the Code and he may be entitled to appear as a witness as well. I am aware of some conflict of judicial opinion in some old cases where on the ground that the procedure of trying maintenance applications being that of a summons case, failure to examine the person proceeded against under Section 342 of the Code, was held to vitiate the proceedings, but that conflict was set at rest by later decisions in which this section was held inapplicable to proceedings under S. 488. However, consistently all the Courts dealing with that question had assumed that the proceedings were criminal proceedings governed by the Code of Criminal Procedure, both in regard to the trial and the power of revision of the Court of the Sessions Judge and of the High Court.',
	(int) 14 => '<p>2. Chapter 7-A of Vol. Iii of Rules and Orders of the Punjab High Court dealing with the maintenance cases also recites that proceedings under Section 488 of the Code of Criminal Procedure are of a criminal character and the provisions contained therein must, thereforee, be strictly followed. Keeping in view the scheme of Chapter xxxvi of the Code of Criminal Procedure and also the scheme of Articles 133 and 134 of the Constitution, I have little hesitation in holding that proceedings under Section 488, Cr. P. C., do fall within the contemplation of criminal proceedings within the meaning of Article 134. The expression 'criminal proceedings' in this Article, seems to me to be wide enough to include maintenance proceedings adjudicated upon by Magistrates initiated under Chapter xxxvI. Such maintenance proceedings are, in my view, criminal proceedings, designed by way of summary process to provide to deserted wives and neglected children, adjudication of their civil right of maintenance up to al limited amount, enforceable through criminal Courts, to avoid the notorious delays of civil proceedings, which may still be utilised for fuller relief under the general law in the ordinary civil Courts.',
	(int) 15 => '<p>3. And then, what directly concerns this Court is the question of the nature of the proceedings on revision in this Court. These proceedings seem to me to be clearly criminal proceedings and I find no logical and rational basis for holding them to be civil proceedings so as to exclude the applicability of Article 134 of the Constitution. Nto only are they registered in this Court as criminal revisions but they are also presented in this Court under the Cr. P. C. and nto under the Civil P. C. The difference between the relative scope of a civil revision and of a criminal revision is well known and revision against an order under Section 488, Cr. P. C. has never been held to my knowledge to be a civil revision so as to exclude the applicability of Art. 134(1)(c) of the Constitution. The preliminary objection is, thereforee, nto easy to sustain.',
	(int) 16 => '<p>4. Coming now to the merits, the learned counsel for the petitioner has very strongly argued that according to Section 488 of the Code, a separate order should have been made granting maintenance to the children. In my opinion, the question which concerns this Court in this present proceedings is nto so much as to what should have been done by the Magistrate while dealing with Section 488, Cr. P. C., but whether there is any such infirmity in the order of this Court as would justify a certificate of fitness within the contemplation of Article 134(1)(c) of the Constitution. It is nto argued, and it cannto be argued, that clause (a) or clause (b) of Article 134(1) covers this case. Clause (c) of this sub-article postulates a case in which a difficult question involving an unsettled principle requires to be finally determined by the Supreme Court. That does nto seem to be the case before me, and indeed no attempt has been made to show that there is any question of principle involved in the impugned order which requires authoritative decision by the Supreme Court. But this apart, the grant of maintenance in this case is a tentative order and it is always open to the authorities to ask for re-consideration and re-determination on account of change of circumstances. The children in these proceedings may, if they are so advised, even now apply to a competent Court under Section 488 for maintenance and if they make out a good claim to the satisfaction of the Court, I have nto the least doubt that suitable orders would be made in accordance with law. The revision on their behalf was held to be barred by time and this Court did nto consider it proper to exercise its suo motu power of revision in this regard. There is no decision on the merits against them by this Court and it has nto been shown that the impugned decision is based on any wrong principle of law which requires further examination by the Supreme Court.',
	(int) 17 => '<p>5. For the foregoing reasons, this application fails and is dismissed.',
	(int) 18 => '<p>6. Application dismissed.<p>',
	(int) 19 => '<p>'
)
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It is obvious that it confers power to order maintenance, on District Magistrates, Presidency Magistrates, Sub-Divisional Magistrates and Magistrates of the 1st Class: Courts which are indisputably criminal Courts and nto civil Courts. Sub-section (6) provides that all evidence under this Chapter has to be taken in the presence of the husband or father, as the case may be, or when his personal attendance is dispensed with, in the presence of his pleader and it is to be recorded in the manner prescribed in the case of summons-cases. This is a further indication that the proceedings are criminal proceedings and nto civil proceedings. The argument that there is no penalty imposed by this section and the proceedings thereforee, cannto be described as 'criminal' is also unacceptable because according to Section 488(3), which provides for enforcement of orders, in certain circumstances, the person in default can be imprisoned for a term which may extend to one month or until payment, if sooner made, though I should nto be understood to hold this consideration to be conclusive on the point either way. It is obvious that the proceedings envisaged by Chapter xxxvi of the Code cannto be considered to be purely civil proceedings, though the person in default, against whom maintenance order is sought, may nto be an accused person whose examination without oath is mandatory as prescribed by Section 342 of the Code and he may be entitled to appear as a witness as well. I am aware of some conflict of judicial opinion in some old cases where on the ground that the procedure of trying maintenance applications being that of a summons case, failure to examine the person proceeded against under Section 342 of the Code, was held to vitiate the proceedings, but that conflict was set at rest by later decisions in which this section was held inapplicable to proceedings under S. 488. However, consistently all the Courts dealing with that question had assumed that the proceedings were criminal proceedings governed by the Code of Criminal Procedure, both in regard to the trial and the power of revision of the Court of the Sessions Judge and of the High Court.

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	'title_for_layout' => 'Harbhajan Kaur Vs Sant Singh - Citation 681173 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '681173',
			'acts' => '<a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 133, 134, 134(1) and 226; <a href="/act/133280/code-of-criminal-procedure-1898-complete-act">Code of Criminal Procedure (CrPC) , 1898</a> - Sections 342, 488, 488(3) and 488(6)',
			'appealno' => 'Criminal Misc. (SCA) No. 855 of 1968',
			'appellant' => 'Harbhajan Kaur',
			'authreffered' => '',
			'casename' => 'Harbhajan Kaur Vs. Sant Singh',
			'casenote' => ' (i) 
Criminal Procedure Code (V of 1898)- Section 488--Proceedings under--nature of--are criminal proceedings and nto Civil proceedings.; The proceedings envisaged by  Chapter xxxvI of the Code cannto be considered 
purely civil proceedings, though the person in default, against whom maintenance order is sought, may nto be an accused person, whose examination without oath is mandatory as prescribed by section 342 of the Code and he may be entitled to appear as a witness as 
well.; Chapter 7-A of Vol. III of Rules and Orders of the Punjab High Court dealing with the maintenance cases also recites that proceedings under section 488 of the Code of Criminal Procedure are of criminal character and the provisions contained therein must, thereforee, be strictly followed.; (ii) Constitution of India - Article 134--Proceedings under Section 488 within the contemplation of--expression--'Criminal proceedings'--scope of.;  That the proceedings under Section 488 Cr. P.C. do fall within the contemplation of criminal proceedings within the meaning of Article 134. 
The expression 'Criminal Proceedings' in this Article is wide enough to include maintenance proceedings adjucated upon by Magistrate initiated under Chapter xxxvI. Such maintenance proceedings are criminal proceedings designed by way of summary process to provide to deserted wives and neglected children adjudication of their civil right of maintenance up to a limited amount enforceable through criminal courts, to avoid the notorious delays of civil proceedings, which may still be utilised for fuller relief under the general law 
in the ordinary civil courts. - Section 13: [Altamas Kabir & Cyriac Joseph,JJ] Custody of child - Welfare of child vis--vis comity of Courts - The minor girl child of 3 1/2 years was brought to India by her mother. The minor girl was a citizen of U.K. being born in U.K. her parents had set up their matrimonial home in U.K. and had acquired status of permanent residents of U.K. The child with her mother was supposed to return to U.K. but the mother cancelled her tickets and remained behind in India. The husband thereupon started procededings before the High Court of Justice, Family Division. U.K. praying for an order that the minor child be made a ward of the Court and for a direction upon the wife to return the minor child to the jurisdiction of the said Court. A further direction was given for the passport and other international travel documents of the minor child to be handed over to the Solicitors of the husband. A petition seeking protection of minor child was thereupon filed by father of the husband before Delhi High Court. A direction for handing over custody of child to father of husband was also sought. The High Court considering fact that the U.K. court was already in seisin of  matter and had passed an interim order and by relying on principle of comity of Nations and Comity of Judgments of the courts of two different countries in deciding the matter directed the wife to take the child of her own to U.K.or hand it over to father of husband to be taken to U.K. as measure of interim custody and that it would be for the U.K. Court to decide the question of custody  -  Order was challenged by wife -  Held, the order of High Court was not liable to be interfered with. Although, on first impression, it would appear that the interests of the minor child would best be served if she is allowed to remain with the wife, the order of U.K. court cannot be lost sight of., The order of U.K. Court except for insisiting that the minor be returned to its jurisdiction, the English Court did not intend to separate the child from the mother until a final decision was taken with regard to the custody of the child. The ultimate decision in that regard has to be left to the English Court having regard to the nationality of the child and the fact that both the parents had worked for gain in the U.K. and had also acquired permanent resident status in the U.K. English Court has not directed that the custody of the child should be handed over to  the father but that the child should be returned to the jurisdiction of the Courts in the U.K. which would then proceed to determine as to who would be best suited to have the custody of the child. The High Court has taken into consideration both the questions relating to the Comity of Courts as well as the interest of the minor child, which, no doubt, is one of the most important considerations in matters relating to custody of a minor child.  -  Provided that, if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if ho is satisfied that there is just ground for so doing. Provided that if the Magistrate is satisfied that he is willfully avoiding service, or willfully neglects to attend the Court, the Magistrate may proceed to hear and determine the case ex parte. Any order so made may be set aside for good cause shown, on application made within three months from the date thereof. It is obvious that the proceedings envisaged by Chapter xxxvi of the Code cannto be considered to be purely civil proceedings, though the person in default, against whom maintenance order is sought, may nto be an accused person whose examination without oath is mandatory as prescribed by Section 342 of the Code and he may be entitled to appear as a witness as well. I am aware of some conflict of judicial opinion in some old cases where on the ground that the procedure of trying maintenance applications being that of a summons case, failure to examine the person proceeded against under Section 342 of the Code, was held to vitiate the proceedings, but that conflict was set at rest by later decisions in which this section was held inapplicable to proceedings under S. These proceedings seem to me to be clearly criminal proceedings and I find no logical and rational basis for holding them to be civil proceedings so as to exclude the applicability of Article 134 of the Constitution. The difference between the relative scope of a civil revision and of a criminal revision is well known and revision against an order under Section 488, Cr. The children in these proceedings may, if they are so advised, even now apply to a competent Court under Section 488 for maintenance and if they make out a good claim to the satisfaction of the Court, I have nto the least doubt that suitable orders would be made in accordance with law.',
			'caseanalysis' => null,
			'casesref' => 'Kapur Singh v. Union of India;',
			'citingcases' => '',
			'counselplain' => ' O.P. Sharma, Adv',
			'counseldef' => ' Madan Bhatia, Adv.',
			'court' => 'Delhi',
			'court_type' => 'HC',
			'decidedon' => '1968-12-17',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' I.D. Dua, C.J.',
			'judgement' => '<p style="text-align: justify;">1. In this application for a certificate of fitness for appeal to the Supreme Court from an order made on revision by this Court in proceedings under Section 488, Cr. P. C, a preliminary objection has been raised that Article 134(1)(c) of the Constitution is inapplicable because proceedings under Section 488 are civil proceedings and nto criminal proceedings. Reliance in support of this preliminary objection has been placed on a decision of the Supreme Court in Nand Lal Misra v. K.L. Misra, : 1960CriLJ1246 . Emphasis has been laid on the observations In this Judgment that Chapter xxxvi of the Code of Criminal Procedure is a self-contained one and the relief given under it is essentially of a civil nature. From this sentence, it is sought to be argued that the proceedings under section 488 are civil proceedings and nto criminal proceedings. Reliance has also been placed on a still more recent Judgment of the Supreme Court in Narayan Row v. Ishwar Lal, : [1965]57ITR149(SC) , in which while dealing with an appeal from an order made by the Bombay High Court under Article 226 of the Constitution, in a matter pertaining to recovery of income-tax, it was observed that the proceedings were civil proceedings within the meaning of Article 133(1)(c) of the Constitution. Reference has next been made to a Full Bench decision of the Punjab High Court in Kapur Singh v. Union of India, where also the question about the nature of proceedings under Articles 133 and 226 of the Constitution came up for discussion. In my opinion, none of these decisions throw helpful light on the question which the preliminary objection poses. Section 488 reads as under:</p><p style="text-align: justify;">'488. Order for maintenance of wives and children.--(1) If any person having sufficient means neglects or refuses to maintain his wife or his legitimate or illegitimate child unable to maintain itself, the District Magistrate, a Presidency Magistrate, a Sub-Divisional Magistrate or 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, at such monthly rate, nto exceeding five hundred rupees in the whole, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate from time to time directs.</p><p style="text-align: justify;"> (2) Such allowance shall be payable from the date of the order, or if so ordered from the date of the application for maintenance.</p><p style="text-align: justify;"> (3) If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in manner hereinbefore provided for levying fines, and may sentence such person, for the whole or any part of each month's allowance remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made:</p><p style="text-align: justify;"> Provided that, if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if ho is satisfied that there is just ground for so doing.</p><p style="text-align: justify;"> If a husband has contracted marriage with another wife or keeps a mistress, it shall be considered to be just ground for his wife's refusal to live with him:</p><p style="text-align: justify;"> Provided, further that no warrant shall be issued for the recovery of any amount due under this direction unless application be made to the Court to levy such amount within a period of one year from the date on which it became due.</p><p style="text-align: justify;"> (4) No wife shall be entitled to receive an allowance from her husband under this section if she is living in adultery, or if, without any sufficient reason she refuses to live with her husband, or if they are living separately by mutual consent.</p><p style="text-align: justify;"> (5) On proof that any wife in whose favor an order has been made under this section is living in adultery, or that without sufficient reason she refuses to live with her husband, or that they are living separately by mutual consent, the Magistrate shall cancel the order.</p><p style="text-align: justify;"> (6) All evidence under this Chapter shall be taken in the presence of the husband or father, as the case may be, or, when his personal attendance is dispensed with, in the presence of his pleader, and shall be recorded in :he manner prescribed in the case of summons-cases:</p><p style="text-align: justify;"> Provided that if the Magistrate is satisfied that he is willfully avoiding service, or willfully neglects to attend the Court, the Magistrate may proceed to hear and determine the case ex parte. Any order so made may be set aside for good cause shown, on application made within three months from the date thereof.</p><p style="text-align: justify;"> (7) The Court in dealing with applications under this section shall have power to make such order as to costs as may be just.</p><p style="text-align: justify;"> (8) Proceedings under this section may be taken against any person in any district where he resides or is, or where he last resided with his wife or, as the case may be, the mother of the illegitimate child.' </p><p style="text-align: justify;">It is obvious that it confers power to order maintenance, on District Magistrates, Presidency Magistrates, Sub-Divisional Magistrates and Magistrates of the 1st Class: Courts which are indisputably criminal Courts and nto civil Courts. Sub-section (6) provides that all evidence under this Chapter has to be taken in the presence of the husband or father, as the case may be, or when his personal attendance is dispensed with, in the presence of his pleader and it is to be recorded in the manner prescribed in the case of summons-cases. This is a further indication that the proceedings are criminal proceedings and nto civil proceedings. The argument that there is no penalty imposed by this section and the proceedings thereforee, cannto be described as 'criminal' is also unacceptable because according to Section 488(3), which provides for enforcement of orders, in certain circumstances, the person in default can be imprisoned for a term which may extend to one month or until payment, if sooner made, though I should nto be understood to hold this consideration to be conclusive on the point either way. It is obvious that the proceedings envisaged by Chapter xxxvi of the Code cannto be considered to be purely civil proceedings, though the person in default, against whom maintenance order is sought, may nto be an accused person whose examination without oath is mandatory as prescribed by Section 342 of the Code and he may be entitled to appear as a witness as well. I am aware of some conflict of judicial opinion in some old cases where on the ground that the procedure of trying maintenance applications being that of a summons case, failure to examine the person proceeded against under Section 342 of the Code, was held to vitiate the proceedings, but that conflict was set at rest by later decisions in which this section was held inapplicable to proceedings under S. 488. However, consistently all the Courts dealing with that question had assumed that the proceedings were criminal proceedings governed by the Code of Criminal Procedure, both in regard to the trial and the power of revision of the Court of the Sessions Judge and of the High Court.</p><p style="text-align: justify;">2. Chapter 7-A of Vol. Iii of Rules and Orders of the Punjab High Court dealing with the maintenance cases also recites that proceedings under Section 488 of the Code of Criminal Procedure are of a criminal character and the provisions contained therein must, thereforee, be strictly followed. Keeping in view the scheme of Chapter xxxvi of the Code of Criminal Procedure and also the scheme of Articles 133 and 134 of the Constitution, I have little hesitation in holding that proceedings under Section 488, Cr. P. C., do fall within the contemplation of criminal proceedings within the meaning of Article 134. The expression 'criminal proceedings' in this Article, seems to me to be wide enough to include maintenance proceedings adjudicated upon by Magistrates initiated under Chapter xxxvI. Such maintenance proceedings are, in my view, criminal proceedings, designed by way of summary process to provide to deserted wives and neglected children, adjudication of their civil right of maintenance up to al limited amount, enforceable through criminal Courts, to avoid the notorious delays of civil proceedings, which may still be utilised for fuller relief under the general law in the ordinary civil Courts.</p><p style="text-align: justify;">3. And then, what directly concerns this Court is the question of the nature of the proceedings on revision in this Court. These proceedings seem to me to be clearly criminal proceedings and I find no logical and rational basis for holding them to be civil proceedings so as to exclude the applicability of Article 134 of the Constitution. Nto only are they registered in this Court as criminal revisions but they are also presented in this Court under the Cr. P. C. and nto under the Civil P. C. The difference between the relative scope of a civil revision and of a criminal revision is well known and revision against an order under Section 488, Cr. P. C. has never been held to my knowledge to be a civil revision so as to exclude the applicability of Art. 134(1)(c) of the Constitution. The preliminary objection is, thereforee, nto easy to sustain.</p><p style="text-align: justify;">4. Coming now to the merits, the learned counsel for the petitioner has very strongly argued that according to Section 488 of the Code, a separate order should have been made granting maintenance to the children. In my opinion, the question which concerns this Court in this present proceedings is nto so much as to what should have been done by the Magistrate while dealing with Section 488, Cr. P. C., but whether there is any such infirmity in the order of this Court as would justify a certificate of fitness within the contemplation of Article 134(1)(c) of the Constitution. It is nto argued, and it cannto be argued, that clause (a) or clause (b) of Article 134(1) covers this case. Clause (c) of this sub-article postulates a case in which a difficult question involving an unsettled principle requires to be finally determined by the Supreme Court. That does nto seem to be the case before me, and indeed no attempt has been made to show that there is any question of principle involved in the impugned order which requires authoritative decision by the Supreme Court. But this apart, the grant of maintenance in this case is a tentative order and it is always open to the authorities to ask for re-consideration and re-determination on account of change of circumstances. The children in these proceedings may, if they are so advised, even now apply to a competent Court under Section 488 for maintenance and if they make out a good claim to the satisfaction of the Court, I have nto the least doubt that suitable orders would be made in accordance with law. The revision on their behalf was held to be barred by time and this Court did nto consider it proper to exercise its suo motu power of revision in this regard. There is no decision on the merits against them by this Court and it has nto been shown that the impugned decision is based on any wrong principle of law which requires further examination by the Supreme Court.</p><p style="text-align: justify;">5. For the foregoing reasons, this application fails and is dismissed.</p><p style="text-align: justify;">6. Application dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => 'AIR1969Delhi298; 1969CriLJ1243; ILR1968Delhi545',
			'ratiodecidendi' => '',
			'respondent' => 'Sant Singh',
			'sub' => 'Criminal;Constitution',
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			'circuit' => null
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$title_for_layout = 'Harbhajan Kaur Vs Sant Singh - Citation 681173 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '681173',
		'acts' => '<a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 133, 134, 134(1) and 226; <a href="/act/133280/code-of-criminal-procedure-1898-complete-act">Code of Criminal Procedure (CrPC) , 1898</a> - Sections 342, 488, 488(3) and 488(6)',
		'appealno' => 'Criminal Misc. (SCA) No. 855 of 1968',
		'appellant' => 'Harbhajan Kaur',
		'authreffered' => '',
		'casename' => 'Harbhajan Kaur Vs. Sant Singh',
		'casenote' => ' (i) 
Criminal Procedure Code (V of 1898)- Section 488--Proceedings under--nature of--are criminal proceedings and nto Civil proceedings.; The proceedings envisaged by  Chapter xxxvI of the Code cannto be considered 
purely civil proceedings, though the person in default, against whom maintenance order is sought, may nto be an accused person, whose examination without oath is mandatory as prescribed by section 342 of the Code and he may be entitled to appear as a witness as 
well.; Chapter 7-A of Vol. III of Rules and Orders of the Punjab High Court dealing with the maintenance cases also recites that proceedings under section 488 of the Code of Criminal Procedure are of criminal character and the provisions contained therein must, thereforee, be strictly followed.; (ii) Constitution of India - Article 134--Proceedings under Section 488 within the contemplation of--expression--'Criminal proceedings'--scope of.;  That the proceedings under Section 488 Cr. P.C. do fall within the contemplation of criminal proceedings within the meaning of Article 134. 
The expression 'Criminal Proceedings' in this Article is wide enough to include maintenance proceedings adjucated upon by Magistrate initiated under Chapter xxxvI. Such maintenance proceedings are criminal proceedings designed by way of summary process to provide to deserted wives and neglected children adjudication of their civil right of maintenance up to a limited amount enforceable through criminal courts, to avoid the notorious delays of civil proceedings, which may still be utilised for fuller relief under the general law 
in the ordinary civil courts. - Section 13: [Altamas Kabir & Cyriac Joseph,JJ] Custody of child - Welfare of child vis--vis comity of Courts - The minor girl child of 3 1/2 years was brought to India by her mother. The minor girl was a citizen of U.K. being born in U.K. her parents had set up their matrimonial home in U.K. and had acquired status of permanent residents of U.K. The child with her mother was supposed to return to U.K. but the mother cancelled her tickets and remained behind in India. The husband thereupon started procededings before the High Court of Justice, Family Division. U.K. praying for an order that the minor child be made a ward of the Court and for a direction upon the wife to return the minor child to the jurisdiction of the said Court. A further direction was given for the passport and other international travel documents of the minor child to be handed over to the Solicitors of the husband. A petition seeking protection of minor child was thereupon filed by father of the husband before Delhi High Court. A direction for handing over custody of child to father of husband was also sought. The High Court considering fact that the U.K. court was already in seisin of  matter and had passed an interim order and by relying on principle of comity of Nations and Comity of Judgments of the courts of two different countries in deciding the matter directed the wife to take the child of her own to U.K.or hand it over to father of husband to be taken to U.K. as measure of interim custody and that it would be for the U.K. Court to decide the question of custody  -  Order was challenged by wife -  Held, the order of High Court was not liable to be interfered with. Although, on first impression, it would appear that the interests of the minor child would best be served if she is allowed to remain with the wife, the order of U.K. court cannot be lost sight of., The order of U.K. Court except for insisiting that the minor be returned to its jurisdiction, the English Court did not intend to separate the child from the mother until a final decision was taken with regard to the custody of the child. The ultimate decision in that regard has to be left to the English Court having regard to the nationality of the child and the fact that both the parents had worked for gain in the U.K. and had also acquired permanent resident status in the U.K. English Court has not directed that the custody of the child should be handed over to  the father but that the child should be returned to the jurisdiction of the Courts in the U.K. which would then proceed to determine as to who would be best suited to have the custody of the child. The High Court has taken into consideration both the questions relating to the Comity of Courts as well as the interest of the minor child, which, no doubt, is one of the most important considerations in matters relating to custody of a minor child.  -  Provided that, if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if ho is satisfied that there is just ground for so doing. Provided that if the Magistrate is satisfied that he is willfully avoiding service, or willfully neglects to attend the Court, the Magistrate may proceed to hear and determine the case ex parte. Any order so made may be set aside for good cause shown, on application made within three months from the date thereof. It is obvious that the proceedings envisaged by Chapter xxxvi of the Code cannto be considered to be purely civil proceedings, though the person in default, against whom maintenance order is sought, may nto be an accused person whose examination without oath is mandatory as prescribed by Section 342 of the Code and he may be entitled to appear as a witness as well. I am aware of some conflict of judicial opinion in some old cases where on the ground that the procedure of trying maintenance applications being that of a summons case, failure to examine the person proceeded against under Section 342 of the Code, was held to vitiate the proceedings, but that conflict was set at rest by later decisions in which this section was held inapplicable to proceedings under S. These proceedings seem to me to be clearly criminal proceedings and I find no logical and rational basis for holding them to be civil proceedings so as to exclude the applicability of Article 134 of the Constitution. The difference between the relative scope of a civil revision and of a criminal revision is well known and revision against an order under Section 488, Cr. The children in these proceedings may, if they are so advised, even now apply to a competent Court under Section 488 for maintenance and if they make out a good claim to the satisfaction of the Court, I have nto the least doubt that suitable orders would be made in accordance with law.',
		'caseanalysis' => null,
		'casesref' => 'Kapur Singh v. Union of India;',
		'citingcases' => '',
		'counselplain' => ' O.P. Sharma, Adv',
		'counseldef' => ' Madan Bhatia, Adv.',
		'court' => 'Delhi',
		'court_type' => 'HC',
		'decidedon' => '1968-12-17',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' I.D. Dua, C.J.',
		'judgement' => '<p>1. In this application for a certificate of fitness for appeal to the Supreme Court from an order made on revision by this Court in proceedings under Section 488, Cr. P. C, a preliminary objection has been raised that Article 134(1)(c) of the Constitution is inapplicable because proceedings under Section 488 are civil proceedings and nto criminal proceedings. Reliance in support of this preliminary objection has been placed on a decision of the Supreme Court in Nand Lal Misra v. K.L. Misra, : 1960CriLJ1246 . Emphasis has been laid on the observations In this Judgment that Chapter xxxvi of the Code of Criminal Procedure is a self-contained one and the relief given under it is essentially of a civil nature. From this sentence, it is sought to be argued that the proceedings under section 488 are civil proceedings and nto criminal proceedings. Reliance has also been placed on a still more recent Judgment of the Supreme Court in Narayan Row v. Ishwar Lal, : [1965]57ITR149(SC) , in which while dealing with an appeal from an order made by the Bombay High Court under Article 226 of the Constitution, in a matter pertaining to recovery of income-tax, it was observed that the proceedings were civil proceedings within the meaning of Article 133(1)(c) of the Constitution. Reference has next been made to a Full Bench decision of the Punjab High Court in Kapur Singh v. Union of India, where also the question about the nature of proceedings under Articles 133 and 226 of the Constitution came up for discussion. In my opinion, none of these decisions throw helpful light on the question which the preliminary objection poses. Section 488 reads as under:</p><p>'488. Order for maintenance of wives and children.--(1) If any person having sufficient means neglects or refuses to maintain his wife or his legitimate or illegitimate child unable to maintain itself, the District Magistrate, a Presidency Magistrate, a Sub-Divisional Magistrate or 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, at such monthly rate, nto exceeding five hundred rupees in the whole, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate from time to time directs.</p><p> (2) Such allowance shall be payable from the date of the order, or if so ordered from the date of the application for maintenance.</p><p> (3) If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in manner hereinbefore provided for levying fines, and may sentence such person, for the whole or any part of each month's allowance remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made:</p><p> Provided that, if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if ho is satisfied that there is just ground for so doing.</p><p> If a husband has contracted marriage with another wife or keeps a mistress, it shall be considered to be just ground for his wife's refusal to live with him:</p><p> Provided, further that no warrant shall be issued for the recovery of any amount due under this direction unless application be made to the Court to levy such amount within a period of one year from the date on which it became due.</p><p> (4) No wife shall be entitled to receive an allowance from her husband under this section if she is living in adultery, or if, without any sufficient reason she refuses to live with her husband, or if they are living separately by mutual consent.</p><p> (5) On proof that any wife in whose favor an order has been made under this section is living in adultery, or that without sufficient reason she refuses to live with her husband, or that they are living separately by mutual consent, the Magistrate shall cancel the order.</p><p> (6) All evidence under this Chapter shall be taken in the presence of the husband or father, as the case may be, or, when his personal attendance is dispensed with, in the presence of his pleader, and shall be recorded in :he manner prescribed in the case of summons-cases:</p><p> Provided that if the Magistrate is satisfied that he is willfully avoiding service, or willfully neglects to attend the Court, the Magistrate may proceed to hear and determine the case ex parte. Any order so made may be set aside for good cause shown, on application made within three months from the date thereof.</p><p> (7) The Court in dealing with applications under this section shall have power to make such order as to costs as may be just.</p><p> (8) Proceedings under this section may be taken against any person in any district where he resides or is, or where he last resided with his wife or, as the case may be, the mother of the illegitimate child.' </p><p>It is obvious that it confers power to order maintenance, on District Magistrates, Presidency Magistrates, Sub-Divisional Magistrates and Magistrates of the 1st Class: Courts which are indisputably criminal Courts and nto civil Courts. Sub-section (6) provides that all evidence under this Chapter has to be taken in the presence of the husband or father, as the case may be, or when his personal attendance is dispensed with, in the presence of his pleader and it is to be recorded in the manner prescribed in the case of summons-cases. This is a further indication that the proceedings are criminal proceedings and nto civil proceedings. The argument that there is no penalty imposed by this section and the proceedings thereforee, cannto be described as 'criminal' is also unacceptable because according to Section 488(3), which provides for enforcement of orders, in certain circumstances, the person in default can be imprisoned for a term which may extend to one month or until payment, if sooner made, though I should nto be understood to hold this consideration to be conclusive on the point either way. It is obvious that the proceedings envisaged by Chapter xxxvi of the Code cannto be considered to be purely civil proceedings, though the person in default, against whom maintenance order is sought, may nto be an accused person whose examination without oath is mandatory as prescribed by Section 342 of the Code and he may be entitled to appear as a witness as well. I am aware of some conflict of judicial opinion in some old cases where on the ground that the procedure of trying maintenance applications being that of a summons case, failure to examine the person proceeded against under Section 342 of the Code, was held to vitiate the proceedings, but that conflict was set at rest by later decisions in which this section was held inapplicable to proceedings under S. 488. However, consistently all the Courts dealing with that question had assumed that the proceedings were criminal proceedings governed by the Code of Criminal Procedure, both in regard to the trial and the power of revision of the Court of the Sessions Judge and of the High Court.</p><p>2. Chapter 7-A of Vol. Iii of Rules and Orders of the Punjab High Court dealing with the maintenance cases also recites that proceedings under Section 488 of the Code of Criminal Procedure are of a criminal character and the provisions contained therein must, thereforee, be strictly followed. Keeping in view the scheme of Chapter xxxvi of the Code of Criminal Procedure and also the scheme of Articles 133 and 134 of the Constitution, I have little hesitation in holding that proceedings under Section 488, Cr. P. C., do fall within the contemplation of criminal proceedings within the meaning of Article 134. The expression 'criminal proceedings' in this Article, seems to me to be wide enough to include maintenance proceedings adjudicated upon by Magistrates initiated under Chapter xxxvI. Such maintenance proceedings are, in my view, criminal proceedings, designed by way of summary process to provide to deserted wives and neglected children, adjudication of their civil right of maintenance up to al limited amount, enforceable through criminal Courts, to avoid the notorious delays of civil proceedings, which may still be utilised for fuller relief under the general law in the ordinary civil Courts.</p><p>3. And then, what directly concerns this Court is the question of the nature of the proceedings on revision in this Court. These proceedings seem to me to be clearly criminal proceedings and I find no logical and rational basis for holding them to be civil proceedings so as to exclude the applicability of Article 134 of the Constitution. Nto only are they registered in this Court as criminal revisions but they are also presented in this Court under the Cr. P. C. and nto under the Civil P. C. The difference between the relative scope of a civil revision and of a criminal revision is well known and revision against an order under Section 488, Cr. P. C. has never been held to my knowledge to be a civil revision so as to exclude the applicability of Art. 134(1)(c) of the Constitution. The preliminary objection is, thereforee, nto easy to sustain.</p><p>4. Coming now to the merits, the learned counsel for the petitioner has very strongly argued that according to Section 488 of the Code, a separate order should have been made granting maintenance to the children. In my opinion, the question which concerns this Court in this present proceedings is nto so much as to what should have been done by the Magistrate while dealing with Section 488, Cr. P. C., but whether there is any such infirmity in the order of this Court as would justify a certificate of fitness within the contemplation of Article 134(1)(c) of the Constitution. It is nto argued, and it cannto be argued, that clause (a) or clause (b) of Article 134(1) covers this case. Clause (c) of this sub-article postulates a case in which a difficult question involving an unsettled principle requires to be finally determined by the Supreme Court. That does nto seem to be the case before me, and indeed no attempt has been made to show that there is any question of principle involved in the impugned order which requires authoritative decision by the Supreme Court. But this apart, the grant of maintenance in this case is a tentative order and it is always open to the authorities to ask for re-consideration and re-determination on account of change of circumstances. The children in these proceedings may, if they are so advised, even now apply to a competent Court under Section 488 for maintenance and if they make out a good claim to the satisfaction of the Court, I have nto the least doubt that suitable orders would be made in accordance with law. The revision on their behalf was held to be barred by time and this Court did nto consider it proper to exercise its suo motu power of revision in this regard. There is no decision on the merits against them by this Court and it has nto been shown that the impugned decision is based on any wrong principle of law which requires further examination by the Supreme Court.</p><p>5. For the foregoing reasons, this application fails and is dismissed.</p><p>6. Application dismissed.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'AIR1969Delhi298; 1969CriLJ1243; ILR1968Delhi545',
		'ratiodecidendi' => '',
		'respondent' => 'Sant Singh',
		'sub' => 'Criminal;Constitution',
		'link' => null,
		'circuit' => null
	)
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	(int) 0 => '<p>1. In this application for a certificate of fitness for appeal to the Supreme Court from an order made on revision by this Court in proceedings under Section 488, Cr. P. C, a preliminary objection has been raised that Article 134(1)(c) of the Constitution is inapplicable because proceedings under Section 488 are civil proceedings and nto criminal proceedings. Reliance in support of this preliminary objection has been placed on a decision of the Supreme Court in Nand Lal Misra v. K.L. Misra, : 1960CriLJ1246 . Emphasis has been laid on the observations In this Judgment that Chapter xxxvi of the Code of Criminal Procedure is a self-contained one and the relief given under it is essentially of a civil nature. From this sentence, it is sought to be argued that the proceedings under section 488 are civil proceedings and nto criminal proceedings. Reliance has also been placed on a still more recent Judgment of the Supreme Court in Narayan Row v. Ishwar Lal, : [1965]57ITR149(SC) , in which while dealing with an appeal from an order made by the Bombay High Court under Article 226 of the Constitution, in a matter pertaining to recovery of income-tax, it was observed that the proceedings were civil proceedings within the meaning of Article 133(1)(c) of the Constitution. Reference has next been made to a Full Bench decision of the Punjab High Court in Kapur Singh v. Union of India, where also the question about the nature of proceedings under Articles 133 and 226 of the Constitution came up for discussion. In my opinion, none of these decisions throw helpful light on the question which the preliminary objection poses. Section 488 reads as under:',
	(int) 1 => '<p>'488. Order for maintenance of wives and children.--(1) If any person having sufficient means neglects or refuses to maintain his wife or his legitimate or illegitimate child unable to maintain itself, the District Magistrate, a Presidency Magistrate, a Sub-Divisional Magistrate or 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, at such monthly rate, nto exceeding five hundred rupees in the whole, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate from time to time directs.',
	(int) 2 => '<p> (2) Such allowance shall be payable from the date of the order, or if so ordered from the date of the application for maintenance.',
	(int) 3 => '<p> (3) If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in manner hereinbefore provided for levying fines, and may sentence such person, for the whole or any part of each month's allowance remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made:',
	(int) 4 => '<p> Provided that, if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if ho is satisfied that there is just ground for so doing.',
	(int) 5 => '<p> If a husband has contracted marriage with another wife or keeps a mistress, it shall be considered to be just ground for his wife's refusal to live with him:',
	(int) 6 => '<p> Provided, further that no warrant shall be issued for the recovery of any amount due under this direction unless application be made to the Court to levy such amount within a period of one year from the date on which it became due.',
	(int) 7 => '<p> (4) No wife shall be entitled to receive an allowance from her husband under this section if she is living in adultery, or if, without any sufficient reason she refuses to live with her husband, or if they are living separately by mutual consent.',
	(int) 8 => '<p> (5) On proof that any wife in whose favor an order has been made under this section is living in adultery, or that without sufficient reason she refuses to live with her husband, or that they are living separately by mutual consent, the Magistrate shall cancel the order.',
	(int) 9 => '<p> (6) All evidence under this Chapter shall be taken in the presence of the husband or father, as the case may be, or, when his personal attendance is dispensed with, in the presence of his pleader, and shall be recorded in :he manner prescribed in the case of summons-cases:',
	(int) 10 => '<p> Provided that if the Magistrate is satisfied that he is willfully avoiding service, or willfully neglects to attend the Court, the Magistrate may proceed to hear and determine the case ex parte. Any order so made may be set aside for good cause shown, on application made within three months from the date thereof.',
	(int) 11 => '<p> (7) The Court in dealing with applications under this section shall have power to make such order as to costs as may be just.',
	(int) 12 => '<p> (8) Proceedings under this section may be taken against any person in any district where he resides or is, or where he last resided with his wife or, as the case may be, the mother of the illegitimate child.' ',
	(int) 13 => '<p>It is obvious that it confers power to order maintenance, on District Magistrates, Presidency Magistrates, Sub-Divisional Magistrates and Magistrates of the 1st Class: Courts which are indisputably criminal Courts and nto civil Courts. Sub-section (6) provides that all evidence under this Chapter has to be taken in the presence of the husband or father, as the case may be, or when his personal attendance is dispensed with, in the presence of his pleader and it is to be recorded in the manner prescribed in the case of summons-cases. This is a further indication that the proceedings are criminal proceedings and nto civil proceedings. The argument that there is no penalty imposed by this section and the proceedings thereforee, cannto be described as 'criminal' is also unacceptable because according to Section 488(3), which provides for enforcement of orders, in certain circumstances, the person in default can be imprisoned for a term which may extend to one month or until payment, if sooner made, though I should nto be understood to hold this consideration to be conclusive on the point either way. It is obvious that the proceedings envisaged by Chapter xxxvi of the Code cannto be considered to be purely civil proceedings, though the person in default, against whom maintenance order is sought, may nto be an accused person whose examination without oath is mandatory as prescribed by Section 342 of the Code and he may be entitled to appear as a witness as well. I am aware of some conflict of judicial opinion in some old cases where on the ground that the procedure of trying maintenance applications being that of a summons case, failure to examine the person proceeded against under Section 342 of the Code, was held to vitiate the proceedings, but that conflict was set at rest by later decisions in which this section was held inapplicable to proceedings under S. 488. However, consistently all the Courts dealing with that question had assumed that the proceedings were criminal proceedings governed by the Code of Criminal Procedure, both in regard to the trial and the power of revision of the Court of the Sessions Judge and of the High Court.',
	(int) 14 => '<p>2. Chapter 7-A of Vol. Iii of Rules and Orders of the Punjab High Court dealing with the maintenance cases also recites that proceedings under Section 488 of the Code of Criminal Procedure are of a criminal character and the provisions contained therein must, thereforee, be strictly followed. Keeping in view the scheme of Chapter xxxvi of the Code of Criminal Procedure and also the scheme of Articles 133 and 134 of the Constitution, I have little hesitation in holding that proceedings under Section 488, Cr. P. C., do fall within the contemplation of criminal proceedings within the meaning of Article 134. The expression 'criminal proceedings' in this Article, seems to me to be wide enough to include maintenance proceedings adjudicated upon by Magistrates initiated under Chapter xxxvI. Such maintenance proceedings are, in my view, criminal proceedings, designed by way of summary process to provide to deserted wives and neglected children, adjudication of their civil right of maintenance up to al limited amount, enforceable through criminal Courts, to avoid the notorious delays of civil proceedings, which may still be utilised for fuller relief under the general law in the ordinary civil Courts.',
	(int) 15 => '<p>3. And then, what directly concerns this Court is the question of the nature of the proceedings on revision in this Court. These proceedings seem to me to be clearly criminal proceedings and I find no logical and rational basis for holding them to be civil proceedings so as to exclude the applicability of Article 134 of the Constitution. Nto only are they registered in this Court as criminal revisions but they are also presented in this Court under the Cr. P. C. and nto under the Civil P. C. The difference between the relative scope of a civil revision and of a criminal revision is well known and revision against an order under Section 488, Cr. P. C. has never been held to my knowledge to be a civil revision so as to exclude the applicability of Art. 134(1)(c) of the Constitution. The preliminary objection is, thereforee, nto easy to sustain.',
	(int) 16 => '<p>4. Coming now to the merits, the learned counsel for the petitioner has very strongly argued that according to Section 488 of the Code, a separate order should have been made granting maintenance to the children. In my opinion, the question which concerns this Court in this present proceedings is nto so much as to what should have been done by the Magistrate while dealing with Section 488, Cr. P. C., but whether there is any such infirmity in the order of this Court as would justify a certificate of fitness within the contemplation of Article 134(1)(c) of the Constitution. It is nto argued, and it cannto be argued, that clause (a) or clause (b) of Article 134(1) covers this case. Clause (c) of this sub-article postulates a case in which a difficult question involving an unsettled principle requires to be finally determined by the Supreme Court. That does nto seem to be the case before me, and indeed no attempt has been made to show that there is any question of principle involved in the impugned order which requires authoritative decision by the Supreme Court. But this apart, the grant of maintenance in this case is a tentative order and it is always open to the authorities to ask for re-consideration and re-determination on account of change of circumstances. The children in these proceedings may, if they are so advised, even now apply to a competent Court under Section 488 for maintenance and if they make out a good claim to the satisfaction of the Court, I have nto the least doubt that suitable orders would be made in accordance with law. The revision on their behalf was held to be barred by time and this Court did nto consider it proper to exercise its suo motu power of revision in this regard. There is no decision on the merits against them by this Court and it has nto been shown that the impugned decision is based on any wrong principle of law which requires further examination by the Supreme Court.',
	(int) 17 => '<p>5. For the foregoing reasons, this application fails and is dismissed.',
	(int) 18 => '<p>6. Application dismissed.<p>',
	(int) 19 => '<p>'
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2. Chapter 7-A of Vol. Iii of Rules and Orders of the Punjab High Court dealing with the maintenance cases also recites that proceedings under Section 488 of the Code of Criminal Procedure are of a criminal character and the provisions contained therein must, thereforee, be strictly followed. Keeping in view the scheme of Chapter xxxvi of the Code of Criminal Procedure and also the scheme of Articles 133 and 134 of the Constitution, I have little hesitation in holding that proceedings under Section 488, Cr. P. C., do fall within the contemplation of criminal proceedings within the meaning of Article 134. The expression 'criminal proceedings' in this Article, seems to me to be wide enough to include maintenance proceedings adjudicated upon by Magistrates initiated under Chapter xxxvI. Such maintenance proceedings are, in my view, criminal proceedings, designed by way of summary process to provide to deserted wives and neglected children, adjudication of their civil right of maintenance up to al limited amount, enforceable through criminal Courts, to avoid the notorious delays of civil proceedings, which may still be utilised for fuller relief under the general law in the ordinary civil Courts.

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	'title_for_layout' => 'Harbhajan Kaur Vs Sant Singh - Citation 681173 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '681173',
			'acts' => '<a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 133, 134, 134(1) and 226; <a href="/act/133280/code-of-criminal-procedure-1898-complete-act">Code of Criminal Procedure (CrPC) , 1898</a> - Sections 342, 488, 488(3) and 488(6)',
			'appealno' => 'Criminal Misc. (SCA) No. 855 of 1968',
			'appellant' => 'Harbhajan Kaur',
			'authreffered' => '',
			'casename' => 'Harbhajan Kaur Vs. Sant Singh',
			'casenote' => ' (i) 
Criminal Procedure Code (V of 1898)- Section 488--Proceedings under--nature of--are criminal proceedings and nto Civil proceedings.; The proceedings envisaged by  Chapter xxxvI of the Code cannto be considered 
purely civil proceedings, though the person in default, against whom maintenance order is sought, may nto be an accused person, whose examination without oath is mandatory as prescribed by section 342 of the Code and he may be entitled to appear as a witness as 
well.; Chapter 7-A of Vol. III of Rules and Orders of the Punjab High Court dealing with the maintenance cases also recites that proceedings under section 488 of the Code of Criminal Procedure are of criminal character and the provisions contained therein must, thereforee, be strictly followed.; (ii) Constitution of India - Article 134--Proceedings under Section 488 within the contemplation of--expression--'Criminal proceedings'--scope of.;  That the proceedings under Section 488 Cr. P.C. do fall within the contemplation of criminal proceedings within the meaning of Article 134. 
The expression 'Criminal Proceedings' in this Article is wide enough to include maintenance proceedings adjucated upon by Magistrate initiated under Chapter xxxvI. Such maintenance proceedings are criminal proceedings designed by way of summary process to provide to deserted wives and neglected children adjudication of their civil right of maintenance up to a limited amount enforceable through criminal courts, to avoid the notorious delays of civil proceedings, which may still be utilised for fuller relief under the general law 
in the ordinary civil courts. - Section 13: [Altamas Kabir & Cyriac Joseph,JJ] Custody of child - Welfare of child vis--vis comity of Courts - The minor girl child of 3 1/2 years was brought to India by her mother. The minor girl was a citizen of U.K. being born in U.K. her parents had set up their matrimonial home in U.K. and had acquired status of permanent residents of U.K. The child with her mother was supposed to return to U.K. but the mother cancelled her tickets and remained behind in India. The husband thereupon started procededings before the High Court of Justice, Family Division. U.K. praying for an order that the minor child be made a ward of the Court and for a direction upon the wife to return the minor child to the jurisdiction of the said Court. A further direction was given for the passport and other international travel documents of the minor child to be handed over to the Solicitors of the husband. A petition seeking protection of minor child was thereupon filed by father of the husband before Delhi High Court. A direction for handing over custody of child to father of husband was also sought. The High Court considering fact that the U.K. court was already in seisin of  matter and had passed an interim order and by relying on principle of comity of Nations and Comity of Judgments of the courts of two different countries in deciding the matter directed the wife to take the child of her own to U.K.or hand it over to father of husband to be taken to U.K. as measure of interim custody and that it would be for the U.K. Court to decide the question of custody  -  Order was challenged by wife -  Held, the order of High Court was not liable to be interfered with. Although, on first impression, it would appear that the interests of the minor child would best be served if she is allowed to remain with the wife, the order of U.K. court cannot be lost sight of., The order of U.K. Court except for insisiting that the minor be returned to its jurisdiction, the English Court did not intend to separate the child from the mother until a final decision was taken with regard to the custody of the child. The ultimate decision in that regard has to be left to the English Court having regard to the nationality of the child and the fact that both the parents had worked for gain in the U.K. and had also acquired permanent resident status in the U.K. English Court has not directed that the custody of the child should be handed over to  the father but that the child should be returned to the jurisdiction of the Courts in the U.K. which would then proceed to determine as to who would be best suited to have the custody of the child. The High Court has taken into consideration both the questions relating to the Comity of Courts as well as the interest of the minor child, which, no doubt, is one of the most important considerations in matters relating to custody of a minor child.  -  Provided that, if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if ho is satisfied that there is just ground for so doing. Provided that if the Magistrate is satisfied that he is willfully avoiding service, or willfully neglects to attend the Court, the Magistrate may proceed to hear and determine the case ex parte. Any order so made may be set aside for good cause shown, on application made within three months from the date thereof. It is obvious that the proceedings envisaged by Chapter xxxvi of the Code cannto be considered to be purely civil proceedings, though the person in default, against whom maintenance order is sought, may nto be an accused person whose examination without oath is mandatory as prescribed by Section 342 of the Code and he may be entitled to appear as a witness as well. I am aware of some conflict of judicial opinion in some old cases where on the ground that the procedure of trying maintenance applications being that of a summons case, failure to examine the person proceeded against under Section 342 of the Code, was held to vitiate the proceedings, but that conflict was set at rest by later decisions in which this section was held inapplicable to proceedings under S. These proceedings seem to me to be clearly criminal proceedings and I find no logical and rational basis for holding them to be civil proceedings so as to exclude the applicability of Article 134 of the Constitution. The difference between the relative scope of a civil revision and of a criminal revision is well known and revision against an order under Section 488, Cr. The children in these proceedings may, if they are so advised, even now apply to a competent Court under Section 488 for maintenance and if they make out a good claim to the satisfaction of the Court, I have nto the least doubt that suitable orders would be made in accordance with law.',
			'caseanalysis' => null,
			'casesref' => 'Kapur Singh v. Union of India;',
			'citingcases' => '',
			'counselplain' => ' O.P. Sharma, Adv',
			'counseldef' => ' Madan Bhatia, Adv.',
			'court' => 'Delhi',
			'court_type' => 'HC',
			'decidedon' => '1968-12-17',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' I.D. Dua, C.J.',
			'judgement' => '<p style="text-align: justify;">1. In this application for a certificate of fitness for appeal to the Supreme Court from an order made on revision by this Court in proceedings under Section 488, Cr. P. C, a preliminary objection has been raised that Article 134(1)(c) of the Constitution is inapplicable because proceedings under Section 488 are civil proceedings and nto criminal proceedings. Reliance in support of this preliminary objection has been placed on a decision of the Supreme Court in Nand Lal Misra v. K.L. Misra, : 1960CriLJ1246 . Emphasis has been laid on the observations In this Judgment that Chapter xxxvi of the Code of Criminal Procedure is a self-contained one and the relief given under it is essentially of a civil nature. From this sentence, it is sought to be argued that the proceedings under section 488 are civil proceedings and nto criminal proceedings. Reliance has also been placed on a still more recent Judgment of the Supreme Court in Narayan Row v. Ishwar Lal, : [1965]57ITR149(SC) , in which while dealing with an appeal from an order made by the Bombay High Court under Article 226 of the Constitution, in a matter pertaining to recovery of income-tax, it was observed that the proceedings were civil proceedings within the meaning of Article 133(1)(c) of the Constitution. Reference has next been made to a Full Bench decision of the Punjab High Court in Kapur Singh v. Union of India, where also the question about the nature of proceedings under Articles 133 and 226 of the Constitution came up for discussion. In my opinion, none of these decisions throw helpful light on the question which the preliminary objection poses. Section 488 reads as under:</p><p style="text-align: justify;">'488. Order for maintenance of wives and children.--(1) If any person having sufficient means neglects or refuses to maintain his wife or his legitimate or illegitimate child unable to maintain itself, the District Magistrate, a Presidency Magistrate, a Sub-Divisional Magistrate or 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, at such monthly rate, nto exceeding five hundred rupees in the whole, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate from time to time directs.</p><p style="text-align: justify;"> (2) Such allowance shall be payable from the date of the order, or if so ordered from the date of the application for maintenance.</p><p style="text-align: justify;"> (3) If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in manner hereinbefore provided for levying fines, and may sentence such person, for the whole or any part of each month's allowance remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made:</p><p style="text-align: justify;"> Provided that, if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if ho is satisfied that there is just ground for so doing.</p><p style="text-align: justify;"> If a husband has contracted marriage with another wife or keeps a mistress, it shall be considered to be just ground for his wife's refusal to live with him:</p><p style="text-align: justify;"> Provided, further that no warrant shall be issued for the recovery of any amount due under this direction unless application be made to the Court to levy such amount within a period of one year from the date on which it became due.</p><p style="text-align: justify;"> (4) No wife shall be entitled to receive an allowance from her husband under this section if she is living in adultery, or if, without any sufficient reason she refuses to live with her husband, or if they are living separately by mutual consent.</p><p style="text-align: justify;"> (5) On proof that any wife in whose favor an order has been made under this section is living in adultery, or that without sufficient reason she refuses to live with her husband, or that they are living separately by mutual consent, the Magistrate shall cancel the order.</p><p style="text-align: justify;"> (6) All evidence under this Chapter shall be taken in the presence of the husband or father, as the case may be, or, when his personal attendance is dispensed with, in the presence of his pleader, and shall be recorded in :he manner prescribed in the case of summons-cases:</p><p style="text-align: justify;"> Provided that if the Magistrate is satisfied that he is willfully avoiding service, or willfully neglects to attend the Court, the Magistrate may proceed to hear and determine the case ex parte. Any order so made may be set aside for good cause shown, on application made within three months from the date thereof.</p><p style="text-align: justify;"> (7) The Court in dealing with applications under this section shall have power to make such order as to costs as may be just.</p><p style="text-align: justify;"> (8) Proceedings under this section may be taken against any person in any district where he resides or is, or where he last resided with his wife or, as the case may be, the mother of the illegitimate child.' </p><p style="text-align: justify;">It is obvious that it confers power to order maintenance, on District Magistrates, Presidency Magistrates, Sub-Divisional Magistrates and Magistrates of the 1st Class: Courts which are indisputably criminal Courts and nto civil Courts. Sub-section (6) provides that all evidence under this Chapter has to be taken in the presence of the husband or father, as the case may be, or when his personal attendance is dispensed with, in the presence of his pleader and it is to be recorded in the manner prescribed in the case of summons-cases. This is a further indication that the proceedings are criminal proceedings and nto civil proceedings. The argument that there is no penalty imposed by this section and the proceedings thereforee, cannto be described as 'criminal' is also unacceptable because according to Section 488(3), which provides for enforcement of orders, in certain circumstances, the person in default can be imprisoned for a term which may extend to one month or until payment, if sooner made, though I should nto be understood to hold this consideration to be conclusive on the point either way. It is obvious that the proceedings envisaged by Chapter xxxvi of the Code cannto be considered to be purely civil proceedings, though the person in default, against whom maintenance order is sought, may nto be an accused person whose examination without oath is mandatory as prescribed by Section 342 of the Code and he may be entitled to appear as a witness as well. I am aware of some conflict of judicial opinion in some old cases where on the ground that the procedure of trying maintenance applications being that of a summons case, failure to examine the person proceeded against under Section 342 of the Code, was held to vitiate the proceedings, but that conflict was set at rest by later decisions in which this section was held inapplicable to proceedings under S. 488. However, consistently all the Courts dealing with that question had assumed that the proceedings were criminal proceedings governed by the Code of Criminal Procedure, both in regard to the trial and the power of revision of the Court of the Sessions Judge and of the High Court.</p><p style="text-align: justify;">2. Chapter 7-A of Vol. Iii of Rules and Orders of the Punjab High Court dealing with the maintenance cases also recites that proceedings under Section 488 of the Code of Criminal Procedure are of a criminal character and the provisions contained therein must, thereforee, be strictly followed. Keeping in view the scheme of Chapter xxxvi of the Code of Criminal Procedure and also the scheme of Articles 133 and 134 of the Constitution, I have little hesitation in holding that proceedings under Section 488, Cr. P. C., do fall within the contemplation of criminal proceedings within the meaning of Article 134. The expression 'criminal proceedings' in this Article, seems to me to be wide enough to include maintenance proceedings adjudicated upon by Magistrates initiated under Chapter xxxvI. Such maintenance proceedings are, in my view, criminal proceedings, designed by way of summary process to provide to deserted wives and neglected children, adjudication of their civil right of maintenance up to al limited amount, enforceable through criminal Courts, to avoid the notorious delays of civil proceedings, which may still be utilised for fuller relief under the general law in the ordinary civil Courts.</p><p style="text-align: justify;">3. And then, what directly concerns this Court is the question of the nature of the proceedings on revision in this Court. These proceedings seem to me to be clearly criminal proceedings and I find no logical and rational basis for holding them to be civil proceedings so as to exclude the applicability of Article 134 of the Constitution. Nto only are they registered in this Court as criminal revisions but they are also presented in this Court under the Cr. P. C. and nto under the Civil P. C. The difference between the relative scope of a civil revision and of a criminal revision is well known and revision against an order under Section 488, Cr. P. C. has never been held to my knowledge to be a civil revision so as to exclude the applicability of Art. 134(1)(c) of the Constitution. The preliminary objection is, thereforee, nto easy to sustain.</p><p style="text-align: justify;">4. Coming now to the merits, the learned counsel for the petitioner has very strongly argued that according to Section 488 of the Code, a separate order should have been made granting maintenance to the children. In my opinion, the question which concerns this Court in this present proceedings is nto so much as to what should have been done by the Magistrate while dealing with Section 488, Cr. P. C., but whether there is any such infirmity in the order of this Court as would justify a certificate of fitness within the contemplation of Article 134(1)(c) of the Constitution. It is nto argued, and it cannto be argued, that clause (a) or clause (b) of Article 134(1) covers this case. Clause (c) of this sub-article postulates a case in which a difficult question involving an unsettled principle requires to be finally determined by the Supreme Court. That does nto seem to be the case before me, and indeed no attempt has been made to show that there is any question of principle involved in the impugned order which requires authoritative decision by the Supreme Court. But this apart, the grant of maintenance in this case is a tentative order and it is always open to the authorities to ask for re-consideration and re-determination on account of change of circumstances. The children in these proceedings may, if they are so advised, even now apply to a competent Court under Section 488 for maintenance and if they make out a good claim to the satisfaction of the Court, I have nto the least doubt that suitable orders would be made in accordance with law. The revision on their behalf was held to be barred by time and this Court did nto consider it proper to exercise its suo motu power of revision in this regard. There is no decision on the merits against them by this Court and it has nto been shown that the impugned decision is based on any wrong principle of law which requires further examination by the Supreme Court.</p><p style="text-align: justify;">5. For the foregoing reasons, this application fails and is dismissed.</p><p style="text-align: justify;">6. Application dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => 'AIR1969Delhi298; 1969CriLJ1243; ILR1968Delhi545',
			'ratiodecidendi' => '',
			'respondent' => 'Sant Singh',
			'sub' => 'Criminal;Constitution',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'harbhajan-kaur-vs-sant-singh',
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		(int) 0 => '681173',
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$title_for_layout = 'Harbhajan Kaur Vs Sant Singh - Citation 681173 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '681173',
		'acts' => '<a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 133, 134, 134(1) and 226; <a href="/act/133280/code-of-criminal-procedure-1898-complete-act">Code of Criminal Procedure (CrPC) , 1898</a> - Sections 342, 488, 488(3) and 488(6)',
		'appealno' => 'Criminal Misc. (SCA) No. 855 of 1968',
		'appellant' => 'Harbhajan Kaur',
		'authreffered' => '',
		'casename' => 'Harbhajan Kaur Vs. Sant Singh',
		'casenote' => ' (i) 
Criminal Procedure Code (V of 1898)- Section 488--Proceedings under--nature of--are criminal proceedings and nto Civil proceedings.; The proceedings envisaged by  Chapter xxxvI of the Code cannto be considered 
purely civil proceedings, though the person in default, against whom maintenance order is sought, may nto be an accused person, whose examination without oath is mandatory as prescribed by section 342 of the Code and he may be entitled to appear as a witness as 
well.; Chapter 7-A of Vol. III of Rules and Orders of the Punjab High Court dealing with the maintenance cases also recites that proceedings under section 488 of the Code of Criminal Procedure are of criminal character and the provisions contained therein must, thereforee, be strictly followed.; (ii) Constitution of India - Article 134--Proceedings under Section 488 within the contemplation of--expression--'Criminal proceedings'--scope of.;  That the proceedings under Section 488 Cr. P.C. do fall within the contemplation of criminal proceedings within the meaning of Article 134. 
The expression 'Criminal Proceedings' in this Article is wide enough to include maintenance proceedings adjucated upon by Magistrate initiated under Chapter xxxvI. Such maintenance proceedings are criminal proceedings designed by way of summary process to provide to deserted wives and neglected children adjudication of their civil right of maintenance up to a limited amount enforceable through criminal courts, to avoid the notorious delays of civil proceedings, which may still be utilised for fuller relief under the general law 
in the ordinary civil courts. - Section 13: [Altamas Kabir & Cyriac Joseph,JJ] Custody of child - Welfare of child vis--vis comity of Courts - The minor girl child of 3 1/2 years was brought to India by her mother. The minor girl was a citizen of U.K. being born in U.K. her parents had set up their matrimonial home in U.K. and had acquired status of permanent residents of U.K. The child with her mother was supposed to return to U.K. but the mother cancelled her tickets and remained behind in India. The husband thereupon started procededings before the High Court of Justice, Family Division. U.K. praying for an order that the minor child be made a ward of the Court and for a direction upon the wife to return the minor child to the jurisdiction of the said Court. A further direction was given for the passport and other international travel documents of the minor child to be handed over to the Solicitors of the husband. A petition seeking protection of minor child was thereupon filed by father of the husband before Delhi High Court. A direction for handing over custody of child to father of husband was also sought. The High Court considering fact that the U.K. court was already in seisin of  matter and had passed an interim order and by relying on principle of comity of Nations and Comity of Judgments of the courts of two different countries in deciding the matter directed the wife to take the child of her own to U.K.or hand it over to father of husband to be taken to U.K. as measure of interim custody and that it would be for the U.K. Court to decide the question of custody  -  Order was challenged by wife -  Held, the order of High Court was not liable to be interfered with. Although, on first impression, it would appear that the interests of the minor child would best be served if she is allowed to remain with the wife, the order of U.K. court cannot be lost sight of., The order of U.K. Court except for insisiting that the minor be returned to its jurisdiction, the English Court did not intend to separate the child from the mother until a final decision was taken with regard to the custody of the child. The ultimate decision in that regard has to be left to the English Court having regard to the nationality of the child and the fact that both the parents had worked for gain in the U.K. and had also acquired permanent resident status in the U.K. English Court has not directed that the custody of the child should be handed over to  the father but that the child should be returned to the jurisdiction of the Courts in the U.K. which would then proceed to determine as to who would be best suited to have the custody of the child. The High Court has taken into consideration both the questions relating to the Comity of Courts as well as the interest of the minor child, which, no doubt, is one of the most important considerations in matters relating to custody of a minor child.  -  Provided that, if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if ho is satisfied that there is just ground for so doing. Provided that if the Magistrate is satisfied that he is willfully avoiding service, or willfully neglects to attend the Court, the Magistrate may proceed to hear and determine the case ex parte. Any order so made may be set aside for good cause shown, on application made within three months from the date thereof. It is obvious that the proceedings envisaged by Chapter xxxvi of the Code cannto be considered to be purely civil proceedings, though the person in default, against whom maintenance order is sought, may nto be an accused person whose examination without oath is mandatory as prescribed by Section 342 of the Code and he may be entitled to appear as a witness as well. I am aware of some conflict of judicial opinion in some old cases where on the ground that the procedure of trying maintenance applications being that of a summons case, failure to examine the person proceeded against under Section 342 of the Code, was held to vitiate the proceedings, but that conflict was set at rest by later decisions in which this section was held inapplicable to proceedings under S. These proceedings seem to me to be clearly criminal proceedings and I find no logical and rational basis for holding them to be civil proceedings so as to exclude the applicability of Article 134 of the Constitution. The difference between the relative scope of a civil revision and of a criminal revision is well known and revision against an order under Section 488, Cr. The children in these proceedings may, if they are so advised, even now apply to a competent Court under Section 488 for maintenance and if they make out a good claim to the satisfaction of the Court, I have nto the least doubt that suitable orders would be made in accordance with law.',
		'caseanalysis' => null,
		'casesref' => 'Kapur Singh v. Union of India;',
		'citingcases' => '',
		'counselplain' => ' O.P. Sharma, Adv',
		'counseldef' => ' Madan Bhatia, Adv.',
		'court' => 'Delhi',
		'court_type' => 'HC',
		'decidedon' => '1968-12-17',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' I.D. Dua, C.J.',
		'judgement' => '<p>1. In this application for a certificate of fitness for appeal to the Supreme Court from an order made on revision by this Court in proceedings under Section 488, Cr. P. C, a preliminary objection has been raised that Article 134(1)(c) of the Constitution is inapplicable because proceedings under Section 488 are civil proceedings and nto criminal proceedings. Reliance in support of this preliminary objection has been placed on a decision of the Supreme Court in Nand Lal Misra v. K.L. Misra, : 1960CriLJ1246 . Emphasis has been laid on the observations In this Judgment that Chapter xxxvi of the Code of Criminal Procedure is a self-contained one and the relief given under it is essentially of a civil nature. From this sentence, it is sought to be argued that the proceedings under section 488 are civil proceedings and nto criminal proceedings. Reliance has also been placed on a still more recent Judgment of the Supreme Court in Narayan Row v. Ishwar Lal, : [1965]57ITR149(SC) , in which while dealing with an appeal from an order made by the Bombay High Court under Article 226 of the Constitution, in a matter pertaining to recovery of income-tax, it was observed that the proceedings were civil proceedings within the meaning of Article 133(1)(c) of the Constitution. Reference has next been made to a Full Bench decision of the Punjab High Court in Kapur Singh v. Union of India, where also the question about the nature of proceedings under Articles 133 and 226 of the Constitution came up for discussion. In my opinion, none of these decisions throw helpful light on the question which the preliminary objection poses. Section 488 reads as under:</p><p>'488. Order for maintenance of wives and children.--(1) If any person having sufficient means neglects or refuses to maintain his wife or his legitimate or illegitimate child unable to maintain itself, the District Magistrate, a Presidency Magistrate, a Sub-Divisional Magistrate or 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, at such monthly rate, nto exceeding five hundred rupees in the whole, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate from time to time directs.</p><p> (2) Such allowance shall be payable from the date of the order, or if so ordered from the date of the application for maintenance.</p><p> (3) If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in manner hereinbefore provided for levying fines, and may sentence such person, for the whole or any part of each month's allowance remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made:</p><p> Provided that, if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if ho is satisfied that there is just ground for so doing.</p><p> If a husband has contracted marriage with another wife or keeps a mistress, it shall be considered to be just ground for his wife's refusal to live with him:</p><p> Provided, further that no warrant shall be issued for the recovery of any amount due under this direction unless application be made to the Court to levy such amount within a period of one year from the date on which it became due.</p><p> (4) No wife shall be entitled to receive an allowance from her husband under this section if she is living in adultery, or if, without any sufficient reason she refuses to live with her husband, or if they are living separately by mutual consent.</p><p> (5) On proof that any wife in whose favor an order has been made under this section is living in adultery, or that without sufficient reason she refuses to live with her husband, or that they are living separately by mutual consent, the Magistrate shall cancel the order.</p><p> (6) All evidence under this Chapter shall be taken in the presence of the husband or father, as the case may be, or, when his personal attendance is dispensed with, in the presence of his pleader, and shall be recorded in :he manner prescribed in the case of summons-cases:</p><p> Provided that if the Magistrate is satisfied that he is willfully avoiding service, or willfully neglects to attend the Court, the Magistrate may proceed to hear and determine the case ex parte. Any order so made may be set aside for good cause shown, on application made within three months from the date thereof.</p><p> (7) The Court in dealing with applications under this section shall have power to make such order as to costs as may be just.</p><p> (8) Proceedings under this section may be taken against any person in any district where he resides or is, or where he last resided with his wife or, as the case may be, the mother of the illegitimate child.' </p><p>It is obvious that it confers power to order maintenance, on District Magistrates, Presidency Magistrates, Sub-Divisional Magistrates and Magistrates of the 1st Class: Courts which are indisputably criminal Courts and nto civil Courts. Sub-section (6) provides that all evidence under this Chapter has to be taken in the presence of the husband or father, as the case may be, or when his personal attendance is dispensed with, in the presence of his pleader and it is to be recorded in the manner prescribed in the case of summons-cases. This is a further indication that the proceedings are criminal proceedings and nto civil proceedings. The argument that there is no penalty imposed by this section and the proceedings thereforee, cannto be described as 'criminal' is also unacceptable because according to Section 488(3), which provides for enforcement of orders, in certain circumstances, the person in default can be imprisoned for a term which may extend to one month or until payment, if sooner made, though I should nto be understood to hold this consideration to be conclusive on the point either way. It is obvious that the proceedings envisaged by Chapter xxxvi of the Code cannto be considered to be purely civil proceedings, though the person in default, against whom maintenance order is sought, may nto be an accused person whose examination without oath is mandatory as prescribed by Section 342 of the Code and he may be entitled to appear as a witness as well. I am aware of some conflict of judicial opinion in some old cases where on the ground that the procedure of trying maintenance applications being that of a summons case, failure to examine the person proceeded against under Section 342 of the Code, was held to vitiate the proceedings, but that conflict was set at rest by later decisions in which this section was held inapplicable to proceedings under S. 488. However, consistently all the Courts dealing with that question had assumed that the proceedings were criminal proceedings governed by the Code of Criminal Procedure, both in regard to the trial and the power of revision of the Court of the Sessions Judge and of the High Court.</p><p>2. Chapter 7-A of Vol. Iii of Rules and Orders of the Punjab High Court dealing with the maintenance cases also recites that proceedings under Section 488 of the Code of Criminal Procedure are of a criminal character and the provisions contained therein must, thereforee, be strictly followed. Keeping in view the scheme of Chapter xxxvi of the Code of Criminal Procedure and also the scheme of Articles 133 and 134 of the Constitution, I have little hesitation in holding that proceedings under Section 488, Cr. P. C., do fall within the contemplation of criminal proceedings within the meaning of Article 134. The expression 'criminal proceedings' in this Article, seems to me to be wide enough to include maintenance proceedings adjudicated upon by Magistrates initiated under Chapter xxxvI. Such maintenance proceedings are, in my view, criminal proceedings, designed by way of summary process to provide to deserted wives and neglected children, adjudication of their civil right of maintenance up to al limited amount, enforceable through criminal Courts, to avoid the notorious delays of civil proceedings, which may still be utilised for fuller relief under the general law in the ordinary civil Courts.</p><p>3. And then, what directly concerns this Court is the question of the nature of the proceedings on revision in this Court. These proceedings seem to me to be clearly criminal proceedings and I find no logical and rational basis for holding them to be civil proceedings so as to exclude the applicability of Article 134 of the Constitution. Nto only are they registered in this Court as criminal revisions but they are also presented in this Court under the Cr. P. C. and nto under the Civil P. C. The difference between the relative scope of a civil revision and of a criminal revision is well known and revision against an order under Section 488, Cr. P. C. has never been held to my knowledge to be a civil revision so as to exclude the applicability of Art. 134(1)(c) of the Constitution. The preliminary objection is, thereforee, nto easy to sustain.</p><p>4. Coming now to the merits, the learned counsel for the petitioner has very strongly argued that according to Section 488 of the Code, a separate order should have been made granting maintenance to the children. In my opinion, the question which concerns this Court in this present proceedings is nto so much as to what should have been done by the Magistrate while dealing with Section 488, Cr. P. C., but whether there is any such infirmity in the order of this Court as would justify a certificate of fitness within the contemplation of Article 134(1)(c) of the Constitution. It is nto argued, and it cannto be argued, that clause (a) or clause (b) of Article 134(1) covers this case. Clause (c) of this sub-article postulates a case in which a difficult question involving an unsettled principle requires to be finally determined by the Supreme Court. That does nto seem to be the case before me, and indeed no attempt has been made to show that there is any question of principle involved in the impugned order which requires authoritative decision by the Supreme Court. But this apart, the grant of maintenance in this case is a tentative order and it is always open to the authorities to ask for re-consideration and re-determination on account of change of circumstances. The children in these proceedings may, if they are so advised, even now apply to a competent Court under Section 488 for maintenance and if they make out a good claim to the satisfaction of the Court, I have nto the least doubt that suitable orders would be made in accordance with law. The revision on their behalf was held to be barred by time and this Court did nto consider it proper to exercise its suo motu power of revision in this regard. There is no decision on the merits against them by this Court and it has nto been shown that the impugned decision is based on any wrong principle of law which requires further examination by the Supreme Court.</p><p>5. For the foregoing reasons, this application fails and is dismissed.</p><p>6. Application dismissed.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'AIR1969Delhi298; 1969CriLJ1243; ILR1968Delhi545',
		'ratiodecidendi' => '',
		'respondent' => 'Sant Singh',
		'sub' => 'Criminal;Constitution',
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		'circuit' => null
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	(int) 0 => '<p>1. In this application for a certificate of fitness for appeal to the Supreme Court from an order made on revision by this Court in proceedings under Section 488, Cr. P. C, a preliminary objection has been raised that Article 134(1)(c) of the Constitution is inapplicable because proceedings under Section 488 are civil proceedings and nto criminal proceedings. Reliance in support of this preliminary objection has been placed on a decision of the Supreme Court in Nand Lal Misra v. K.L. Misra, : 1960CriLJ1246 . Emphasis has been laid on the observations In this Judgment that Chapter xxxvi of the Code of Criminal Procedure is a self-contained one and the relief given under it is essentially of a civil nature. From this sentence, it is sought to be argued that the proceedings under section 488 are civil proceedings and nto criminal proceedings. Reliance has also been placed on a still more recent Judgment of the Supreme Court in Narayan Row v. Ishwar Lal, : [1965]57ITR149(SC) , in which while dealing with an appeal from an order made by the Bombay High Court under Article 226 of the Constitution, in a matter pertaining to recovery of income-tax, it was observed that the proceedings were civil proceedings within the meaning of Article 133(1)(c) of the Constitution. Reference has next been made to a Full Bench decision of the Punjab High Court in Kapur Singh v. Union of India, where also the question about the nature of proceedings under Articles 133 and 226 of the Constitution came up for discussion. In my opinion, none of these decisions throw helpful light on the question which the preliminary objection poses. Section 488 reads as under:',
	(int) 1 => '<p>'488. Order for maintenance of wives and children.--(1) If any person having sufficient means neglects or refuses to maintain his wife or his legitimate or illegitimate child unable to maintain itself, the District Magistrate, a Presidency Magistrate, a Sub-Divisional Magistrate or 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, at such monthly rate, nto exceeding five hundred rupees in the whole, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate from time to time directs.',
	(int) 2 => '<p> (2) Such allowance shall be payable from the date of the order, or if so ordered from the date of the application for maintenance.',
	(int) 3 => '<p> (3) If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in manner hereinbefore provided for levying fines, and may sentence such person, for the whole or any part of each month's allowance remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made:',
	(int) 4 => '<p> Provided that, if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if ho is satisfied that there is just ground for so doing.',
	(int) 5 => '<p> If a husband has contracted marriage with another wife or keeps a mistress, it shall be considered to be just ground for his wife's refusal to live with him:',
	(int) 6 => '<p> Provided, further that no warrant shall be issued for the recovery of any amount due under this direction unless application be made to the Court to levy such amount within a period of one year from the date on which it became due.',
	(int) 7 => '<p> (4) No wife shall be entitled to receive an allowance from her husband under this section if she is living in adultery, or if, without any sufficient reason she refuses to live with her husband, or if they are living separately by mutual consent.',
	(int) 8 => '<p> (5) On proof that any wife in whose favor an order has been made under this section is living in adultery, or that without sufficient reason she refuses to live with her husband, or that they are living separately by mutual consent, the Magistrate shall cancel the order.',
	(int) 9 => '<p> (6) All evidence under this Chapter shall be taken in the presence of the husband or father, as the case may be, or, when his personal attendance is dispensed with, in the presence of his pleader, and shall be recorded in :he manner prescribed in the case of summons-cases:',
	(int) 10 => '<p> Provided that if the Magistrate is satisfied that he is willfully avoiding service, or willfully neglects to attend the Court, the Magistrate may proceed to hear and determine the case ex parte. Any order so made may be set aside for good cause shown, on application made within three months from the date thereof.',
	(int) 11 => '<p> (7) The Court in dealing with applications under this section shall have power to make such order as to costs as may be just.',
	(int) 12 => '<p> (8) Proceedings under this section may be taken against any person in any district where he resides or is, or where he last resided with his wife or, as the case may be, the mother of the illegitimate child.' ',
	(int) 13 => '<p>It is obvious that it confers power to order maintenance, on District Magistrates, Presidency Magistrates, Sub-Divisional Magistrates and Magistrates of the 1st Class: Courts which are indisputably criminal Courts and nto civil Courts. Sub-section (6) provides that all evidence under this Chapter has to be taken in the presence of the husband or father, as the case may be, or when his personal attendance is dispensed with, in the presence of his pleader and it is to be recorded in the manner prescribed in the case of summons-cases. This is a further indication that the proceedings are criminal proceedings and nto civil proceedings. The argument that there is no penalty imposed by this section and the proceedings thereforee, cannto be described as 'criminal' is also unacceptable because according to Section 488(3), which provides for enforcement of orders, in certain circumstances, the person in default can be imprisoned for a term which may extend to one month or until payment, if sooner made, though I should nto be understood to hold this consideration to be conclusive on the point either way. It is obvious that the proceedings envisaged by Chapter xxxvi of the Code cannto be considered to be purely civil proceedings, though the person in default, against whom maintenance order is sought, may nto be an accused person whose examination without oath is mandatory as prescribed by Section 342 of the Code and he may be entitled to appear as a witness as well. I am aware of some conflict of judicial opinion in some old cases where on the ground that the procedure of trying maintenance applications being that of a summons case, failure to examine the person proceeded against under Section 342 of the Code, was held to vitiate the proceedings, but that conflict was set at rest by later decisions in which this section was held inapplicable to proceedings under S. 488. However, consistently all the Courts dealing with that question had assumed that the proceedings were criminal proceedings governed by the Code of Criminal Procedure, both in regard to the trial and the power of revision of the Court of the Sessions Judge and of the High Court.',
	(int) 14 => '<p>2. Chapter 7-A of Vol. Iii of Rules and Orders of the Punjab High Court dealing with the maintenance cases also recites that proceedings under Section 488 of the Code of Criminal Procedure are of a criminal character and the provisions contained therein must, thereforee, be strictly followed. Keeping in view the scheme of Chapter xxxvi of the Code of Criminal Procedure and also the scheme of Articles 133 and 134 of the Constitution, I have little hesitation in holding that proceedings under Section 488, Cr. P. C., do fall within the contemplation of criminal proceedings within the meaning of Article 134. The expression 'criminal proceedings' in this Article, seems to me to be wide enough to include maintenance proceedings adjudicated upon by Magistrates initiated under Chapter xxxvI. Such maintenance proceedings are, in my view, criminal proceedings, designed by way of summary process to provide to deserted wives and neglected children, adjudication of their civil right of maintenance up to al limited amount, enforceable through criminal Courts, to avoid the notorious delays of civil proceedings, which may still be utilised for fuller relief under the general law in the ordinary civil Courts.',
	(int) 15 => '<p>3. And then, what directly concerns this Court is the question of the nature of the proceedings on revision in this Court. These proceedings seem to me to be clearly criminal proceedings and I find no logical and rational basis for holding them to be civil proceedings so as to exclude the applicability of Article 134 of the Constitution. Nto only are they registered in this Court as criminal revisions but they are also presented in this Court under the Cr. P. C. and nto under the Civil P. C. The difference between the relative scope of a civil revision and of a criminal revision is well known and revision against an order under Section 488, Cr. P. C. has never been held to my knowledge to be a civil revision so as to exclude the applicability of Art. 134(1)(c) of the Constitution. The preliminary objection is, thereforee, nto easy to sustain.',
	(int) 16 => '<p>4. Coming now to the merits, the learned counsel for the petitioner has very strongly argued that according to Section 488 of the Code, a separate order should have been made granting maintenance to the children. In my opinion, the question which concerns this Court in this present proceedings is nto so much as to what should have been done by the Magistrate while dealing with Section 488, Cr. P. C., but whether there is any such infirmity in the order of this Court as would justify a certificate of fitness within the contemplation of Article 134(1)(c) of the Constitution. It is nto argued, and it cannto be argued, that clause (a) or clause (b) of Article 134(1) covers this case. Clause (c) of this sub-article postulates a case in which a difficult question involving an unsettled principle requires to be finally determined by the Supreme Court. That does nto seem to be the case before me, and indeed no attempt has been made to show that there is any question of principle involved in the impugned order which requires authoritative decision by the Supreme Court. But this apart, the grant of maintenance in this case is a tentative order and it is always open to the authorities to ask for re-consideration and re-determination on account of change of circumstances. The children in these proceedings may, if they are so advised, even now apply to a competent Court under Section 488 for maintenance and if they make out a good claim to the satisfaction of the Court, I have nto the least doubt that suitable orders would be made in accordance with law. The revision on their behalf was held to be barred by time and this Court did nto consider it proper to exercise its suo motu power of revision in this regard. There is no decision on the merits against them by this Court and it has nto been shown that the impugned decision is based on any wrong principle of law which requires further examination by the Supreme Court.',
	(int) 17 => '<p>5. For the foregoing reasons, this application fails and is dismissed.',
	(int) 18 => '<p>6. Application dismissed.<p>',
	(int) 19 => '<p>'
)
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3. And then, what directly concerns this Court is the question of the nature of the proceedings on revision in this Court. These proceedings seem to me to be clearly criminal proceedings and I find no logical and rational basis for holding them to be civil proceedings so as to exclude the applicability of Article 134 of the Constitution. Nto only are they registered in this Court as criminal revisions but they are also presented in this Court under the Cr. P. C. and nto under the Civil P. C. The difference between the relative scope of a civil revision and of a criminal revision is well known and revision against an order under Section 488, Cr. P. C. has never been held to my knowledge to be a civil revision so as to exclude the applicability of Art. 134(1)(c) of the Constitution. The preliminary objection is, thereforee, nto easy to sustain.

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	'title_for_layout' => 'Harbhajan Kaur Vs Sant Singh - Citation 681173 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '681173',
			'acts' => '<a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 133, 134, 134(1) and 226; <a href="/act/133280/code-of-criminal-procedure-1898-complete-act">Code of Criminal Procedure (CrPC) , 1898</a> - Sections 342, 488, 488(3) and 488(6)',
			'appealno' => 'Criminal Misc. (SCA) No. 855 of 1968',
			'appellant' => 'Harbhajan Kaur',
			'authreffered' => '',
			'casename' => 'Harbhajan Kaur Vs. Sant Singh',
			'casenote' => ' (i) 
Criminal Procedure Code (V of 1898)- Section 488--Proceedings under--nature of--are criminal proceedings and nto Civil proceedings.; The proceedings envisaged by  Chapter xxxvI of the Code cannto be considered 
purely civil proceedings, though the person in default, against whom maintenance order is sought, may nto be an accused person, whose examination without oath is mandatory as prescribed by section 342 of the Code and he may be entitled to appear as a witness as 
well.; Chapter 7-A of Vol. III of Rules and Orders of the Punjab High Court dealing with the maintenance cases also recites that proceedings under section 488 of the Code of Criminal Procedure are of criminal character and the provisions contained therein must, thereforee, be strictly followed.; (ii) Constitution of India - Article 134--Proceedings under Section 488 within the contemplation of--expression--'Criminal proceedings'--scope of.;  That the proceedings under Section 488 Cr. P.C. do fall within the contemplation of criminal proceedings within the meaning of Article 134. 
The expression 'Criminal Proceedings' in this Article is wide enough to include maintenance proceedings adjucated upon by Magistrate initiated under Chapter xxxvI. Such maintenance proceedings are criminal proceedings designed by way of summary process to provide to deserted wives and neglected children adjudication of their civil right of maintenance up to a limited amount enforceable through criminal courts, to avoid the notorious delays of civil proceedings, which may still be utilised for fuller relief under the general law 
in the ordinary civil courts. - Section 13: [Altamas Kabir & Cyriac Joseph,JJ] Custody of child - Welfare of child vis--vis comity of Courts - The minor girl child of 3 1/2 years was brought to India by her mother. The minor girl was a citizen of U.K. being born in U.K. her parents had set up their matrimonial home in U.K. and had acquired status of permanent residents of U.K. The child with her mother was supposed to return to U.K. but the mother cancelled her tickets and remained behind in India. The husband thereupon started procededings before the High Court of Justice, Family Division. U.K. praying for an order that the minor child be made a ward of the Court and for a direction upon the wife to return the minor child to the jurisdiction of the said Court. A further direction was given for the passport and other international travel documents of the minor child to be handed over to the Solicitors of the husband. A petition seeking protection of minor child was thereupon filed by father of the husband before Delhi High Court. A direction for handing over custody of child to father of husband was also sought. The High Court considering fact that the U.K. court was already in seisin of  matter and had passed an interim order and by relying on principle of comity of Nations and Comity of Judgments of the courts of two different countries in deciding the matter directed the wife to take the child of her own to U.K.or hand it over to father of husband to be taken to U.K. as measure of interim custody and that it would be for the U.K. Court to decide the question of custody  -  Order was challenged by wife -  Held, the order of High Court was not liable to be interfered with. Although, on first impression, it would appear that the interests of the minor child would best be served if she is allowed to remain with the wife, the order of U.K. court cannot be lost sight of., The order of U.K. Court except for insisiting that the minor be returned to its jurisdiction, the English Court did not intend to separate the child from the mother until a final decision was taken with regard to the custody of the child. The ultimate decision in that regard has to be left to the English Court having regard to the nationality of the child and the fact that both the parents had worked for gain in the U.K. and had also acquired permanent resident status in the U.K. English Court has not directed that the custody of the child should be handed over to  the father but that the child should be returned to the jurisdiction of the Courts in the U.K. which would then proceed to determine as to who would be best suited to have the custody of the child. The High Court has taken into consideration both the questions relating to the Comity of Courts as well as the interest of the minor child, which, no doubt, is one of the most important considerations in matters relating to custody of a minor child.  -  Provided that, if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if ho is satisfied that there is just ground for so doing. Provided that if the Magistrate is satisfied that he is willfully avoiding service, or willfully neglects to attend the Court, the Magistrate may proceed to hear and determine the case ex parte. Any order so made may be set aside for good cause shown, on application made within three months from the date thereof. It is obvious that the proceedings envisaged by Chapter xxxvi of the Code cannto be considered to be purely civil proceedings, though the person in default, against whom maintenance order is sought, may nto be an accused person whose examination without oath is mandatory as prescribed by Section 342 of the Code and he may be entitled to appear as a witness as well. I am aware of some conflict of judicial opinion in some old cases where on the ground that the procedure of trying maintenance applications being that of a summons case, failure to examine the person proceeded against under Section 342 of the Code, was held to vitiate the proceedings, but that conflict was set at rest by later decisions in which this section was held inapplicable to proceedings under S. These proceedings seem to me to be clearly criminal proceedings and I find no logical and rational basis for holding them to be civil proceedings so as to exclude the applicability of Article 134 of the Constitution. The difference between the relative scope of a civil revision and of a criminal revision is well known and revision against an order under Section 488, Cr. The children in these proceedings may, if they are so advised, even now apply to a competent Court under Section 488 for maintenance and if they make out a good claim to the satisfaction of the Court, I have nto the least doubt that suitable orders would be made in accordance with law.',
			'caseanalysis' => null,
			'casesref' => 'Kapur Singh v. Union of India;',
			'citingcases' => '',
			'counselplain' => ' O.P. Sharma, Adv',
			'counseldef' => ' Madan Bhatia, Adv.',
			'court' => 'Delhi',
			'court_type' => 'HC',
			'decidedon' => '1968-12-17',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' I.D. Dua, C.J.',
			'judgement' => '<p style="text-align: justify;">1. In this application for a certificate of fitness for appeal to the Supreme Court from an order made on revision by this Court in proceedings under Section 488, Cr. P. C, a preliminary objection has been raised that Article 134(1)(c) of the Constitution is inapplicable because proceedings under Section 488 are civil proceedings and nto criminal proceedings. Reliance in support of this preliminary objection has been placed on a decision of the Supreme Court in Nand Lal Misra v. K.L. Misra, : 1960CriLJ1246 . Emphasis has been laid on the observations In this Judgment that Chapter xxxvi of the Code of Criminal Procedure is a self-contained one and the relief given under it is essentially of a civil nature. From this sentence, it is sought to be argued that the proceedings under section 488 are civil proceedings and nto criminal proceedings. Reliance has also been placed on a still more recent Judgment of the Supreme Court in Narayan Row v. Ishwar Lal, : [1965]57ITR149(SC) , in which while dealing with an appeal from an order made by the Bombay High Court under Article 226 of the Constitution, in a matter pertaining to recovery of income-tax, it was observed that the proceedings were civil proceedings within the meaning of Article 133(1)(c) of the Constitution. Reference has next been made to a Full Bench decision of the Punjab High Court in Kapur Singh v. Union of India, where also the question about the nature of proceedings under Articles 133 and 226 of the Constitution came up for discussion. In my opinion, none of these decisions throw helpful light on the question which the preliminary objection poses. Section 488 reads as under:</p><p style="text-align: justify;">'488. Order for maintenance of wives and children.--(1) If any person having sufficient means neglects or refuses to maintain his wife or his legitimate or illegitimate child unable to maintain itself, the District Magistrate, a Presidency Magistrate, a Sub-Divisional Magistrate or 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, at such monthly rate, nto exceeding five hundred rupees in the whole, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate from time to time directs.</p><p style="text-align: justify;"> (2) Such allowance shall be payable from the date of the order, or if so ordered from the date of the application for maintenance.</p><p style="text-align: justify;"> (3) If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in manner hereinbefore provided for levying fines, and may sentence such person, for the whole or any part of each month's allowance remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made:</p><p style="text-align: justify;"> Provided that, if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if ho is satisfied that there is just ground for so doing.</p><p style="text-align: justify;"> If a husband has contracted marriage with another wife or keeps a mistress, it shall be considered to be just ground for his wife's refusal to live with him:</p><p style="text-align: justify;"> Provided, further that no warrant shall be issued for the recovery of any amount due under this direction unless application be made to the Court to levy such amount within a period of one year from the date on which it became due.</p><p style="text-align: justify;"> (4) No wife shall be entitled to receive an allowance from her husband under this section if she is living in adultery, or if, without any sufficient reason she refuses to live with her husband, or if they are living separately by mutual consent.</p><p style="text-align: justify;"> (5) On proof that any wife in whose favor an order has been made under this section is living in adultery, or that without sufficient reason she refuses to live with her husband, or that they are living separately by mutual consent, the Magistrate shall cancel the order.</p><p style="text-align: justify;"> (6) All evidence under this Chapter shall be taken in the presence of the husband or father, as the case may be, or, when his personal attendance is dispensed with, in the presence of his pleader, and shall be recorded in :he manner prescribed in the case of summons-cases:</p><p style="text-align: justify;"> Provided that if the Magistrate is satisfied that he is willfully avoiding service, or willfully neglects to attend the Court, the Magistrate may proceed to hear and determine the case ex parte. Any order so made may be set aside for good cause shown, on application made within three months from the date thereof.</p><p style="text-align: justify;"> (7) The Court in dealing with applications under this section shall have power to make such order as to costs as may be just.</p><p style="text-align: justify;"> (8) Proceedings under this section may be taken against any person in any district where he resides or is, or where he last resided with his wife or, as the case may be, the mother of the illegitimate child.' </p><p style="text-align: justify;">It is obvious that it confers power to order maintenance, on District Magistrates, Presidency Magistrates, Sub-Divisional Magistrates and Magistrates of the 1st Class: Courts which are indisputably criminal Courts and nto civil Courts. Sub-section (6) provides that all evidence under this Chapter has to be taken in the presence of the husband or father, as the case may be, or when his personal attendance is dispensed with, in the presence of his pleader and it is to be recorded in the manner prescribed in the case of summons-cases. This is a further indication that the proceedings are criminal proceedings and nto civil proceedings. The argument that there is no penalty imposed by this section and the proceedings thereforee, cannto be described as 'criminal' is also unacceptable because according to Section 488(3), which provides for enforcement of orders, in certain circumstances, the person in default can be imprisoned for a term which may extend to one month or until payment, if sooner made, though I should nto be understood to hold this consideration to be conclusive on the point either way. It is obvious that the proceedings envisaged by Chapter xxxvi of the Code cannto be considered to be purely civil proceedings, though the person in default, against whom maintenance order is sought, may nto be an accused person whose examination without oath is mandatory as prescribed by Section 342 of the Code and he may be entitled to appear as a witness as well. I am aware of some conflict of judicial opinion in some old cases where on the ground that the procedure of trying maintenance applications being that of a summons case, failure to examine the person proceeded against under Section 342 of the Code, was held to vitiate the proceedings, but that conflict was set at rest by later decisions in which this section was held inapplicable to proceedings under S. 488. However, consistently all the Courts dealing with that question had assumed that the proceedings were criminal proceedings governed by the Code of Criminal Procedure, both in regard to the trial and the power of revision of the Court of the Sessions Judge and of the High Court.</p><p style="text-align: justify;">2. Chapter 7-A of Vol. Iii of Rules and Orders of the Punjab High Court dealing with the maintenance cases also recites that proceedings under Section 488 of the Code of Criminal Procedure are of a criminal character and the provisions contained therein must, thereforee, be strictly followed. Keeping in view the scheme of Chapter xxxvi of the Code of Criminal Procedure and also the scheme of Articles 133 and 134 of the Constitution, I have little hesitation in holding that proceedings under Section 488, Cr. P. C., do fall within the contemplation of criminal proceedings within the meaning of Article 134. The expression 'criminal proceedings' in this Article, seems to me to be wide enough to include maintenance proceedings adjudicated upon by Magistrates initiated under Chapter xxxvI. Such maintenance proceedings are, in my view, criminal proceedings, designed by way of summary process to provide to deserted wives and neglected children, adjudication of their civil right of maintenance up to al limited amount, enforceable through criminal Courts, to avoid the notorious delays of civil proceedings, which may still be utilised for fuller relief under the general law in the ordinary civil Courts.</p><p style="text-align: justify;">3. And then, what directly concerns this Court is the question of the nature of the proceedings on revision in this Court. These proceedings seem to me to be clearly criminal proceedings and I find no logical and rational basis for holding them to be civil proceedings so as to exclude the applicability of Article 134 of the Constitution. Nto only are they registered in this Court as criminal revisions but they are also presented in this Court under the Cr. P. C. and nto under the Civil P. C. The difference between the relative scope of a civil revision and of a criminal revision is well known and revision against an order under Section 488, Cr. P. C. has never been held to my knowledge to be a civil revision so as to exclude the applicability of Art. 134(1)(c) of the Constitution. The preliminary objection is, thereforee, nto easy to sustain.</p><p style="text-align: justify;">4. Coming now to the merits, the learned counsel for the petitioner has very strongly argued that according to Section 488 of the Code, a separate order should have been made granting maintenance to the children. In my opinion, the question which concerns this Court in this present proceedings is nto so much as to what should have been done by the Magistrate while dealing with Section 488, Cr. P. C., but whether there is any such infirmity in the order of this Court as would justify a certificate of fitness within the contemplation of Article 134(1)(c) of the Constitution. It is nto argued, and it cannto be argued, that clause (a) or clause (b) of Article 134(1) covers this case. Clause (c) of this sub-article postulates a case in which a difficult question involving an unsettled principle requires to be finally determined by the Supreme Court. That does nto seem to be the case before me, and indeed no attempt has been made to show that there is any question of principle involved in the impugned order which requires authoritative decision by the Supreme Court. But this apart, the grant of maintenance in this case is a tentative order and it is always open to the authorities to ask for re-consideration and re-determination on account of change of circumstances. The children in these proceedings may, if they are so advised, even now apply to a competent Court under Section 488 for maintenance and if they make out a good claim to the satisfaction of the Court, I have nto the least doubt that suitable orders would be made in accordance with law. The revision on their behalf was held to be barred by time and this Court did nto consider it proper to exercise its suo motu power of revision in this regard. There is no decision on the merits against them by this Court and it has nto been shown that the impugned decision is based on any wrong principle of law which requires further examination by the Supreme Court.</p><p style="text-align: justify;">5. For the foregoing reasons, this application fails and is dismissed.</p><p style="text-align: justify;">6. Application dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => 'AIR1969Delhi298; 1969CriLJ1243; ILR1968Delhi545',
			'ratiodecidendi' => '',
			'respondent' => 'Sant Singh',
			'sub' => 'Criminal;Constitution',
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			'circuit' => null
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		'id' => '681173',
		'acts' => '<a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 133, 134, 134(1) and 226; <a href="/act/133280/code-of-criminal-procedure-1898-complete-act">Code of Criminal Procedure (CrPC) , 1898</a> - Sections 342, 488, 488(3) and 488(6)',
		'appealno' => 'Criminal Misc. (SCA) No. 855 of 1968',
		'appellant' => 'Harbhajan Kaur',
		'authreffered' => '',
		'casename' => 'Harbhajan Kaur Vs. Sant Singh',
		'casenote' => ' (i) 
Criminal Procedure Code (V of 1898)- Section 488--Proceedings under--nature of--are criminal proceedings and nto Civil proceedings.; The proceedings envisaged by  Chapter xxxvI of the Code cannto be considered 
purely civil proceedings, though the person in default, against whom maintenance order is sought, may nto be an accused person, whose examination without oath is mandatory as prescribed by section 342 of the Code and he may be entitled to appear as a witness as 
well.; Chapter 7-A of Vol. III of Rules and Orders of the Punjab High Court dealing with the maintenance cases also recites that proceedings under section 488 of the Code of Criminal Procedure are of criminal character and the provisions contained therein must, thereforee, be strictly followed.; (ii) Constitution of India - Article 134--Proceedings under Section 488 within the contemplation of--expression--'Criminal proceedings'--scope of.;  That the proceedings under Section 488 Cr. P.C. do fall within the contemplation of criminal proceedings within the meaning of Article 134. 
The expression 'Criminal Proceedings' in this Article is wide enough to include maintenance proceedings adjucated upon by Magistrate initiated under Chapter xxxvI. Such maintenance proceedings are criminal proceedings designed by way of summary process to provide to deserted wives and neglected children adjudication of their civil right of maintenance up to a limited amount enforceable through criminal courts, to avoid the notorious delays of civil proceedings, which may still be utilised for fuller relief under the general law 
in the ordinary civil courts. - Section 13: [Altamas Kabir & Cyriac Joseph,JJ] Custody of child - Welfare of child vis--vis comity of Courts - The minor girl child of 3 1/2 years was brought to India by her mother. The minor girl was a citizen of U.K. being born in U.K. her parents had set up their matrimonial home in U.K. and had acquired status of permanent residents of U.K. The child with her mother was supposed to return to U.K. but the mother cancelled her tickets and remained behind in India. The husband thereupon started procededings before the High Court of Justice, Family Division. U.K. praying for an order that the minor child be made a ward of the Court and for a direction upon the wife to return the minor child to the jurisdiction of the said Court. A further direction was given for the passport and other international travel documents of the minor child to be handed over to the Solicitors of the husband. A petition seeking protection of minor child was thereupon filed by father of the husband before Delhi High Court. A direction for handing over custody of child to father of husband was also sought. The High Court considering fact that the U.K. court was already in seisin of  matter and had passed an interim order and by relying on principle of comity of Nations and Comity of Judgments of the courts of two different countries in deciding the matter directed the wife to take the child of her own to U.K.or hand it over to father of husband to be taken to U.K. as measure of interim custody and that it would be for the U.K. Court to decide the question of custody  -  Order was challenged by wife -  Held, the order of High Court was not liable to be interfered with. Although, on first impression, it would appear that the interests of the minor child would best be served if she is allowed to remain with the wife, the order of U.K. court cannot be lost sight of., The order of U.K. Court except for insisiting that the minor be returned to its jurisdiction, the English Court did not intend to separate the child from the mother until a final decision was taken with regard to the custody of the child. The ultimate decision in that regard has to be left to the English Court having regard to the nationality of the child and the fact that both the parents had worked for gain in the U.K. and had also acquired permanent resident status in the U.K. English Court has not directed that the custody of the child should be handed over to  the father but that the child should be returned to the jurisdiction of the Courts in the U.K. which would then proceed to determine as to who would be best suited to have the custody of the child. The High Court has taken into consideration both the questions relating to the Comity of Courts as well as the interest of the minor child, which, no doubt, is one of the most important considerations in matters relating to custody of a minor child.  -  Provided that, if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if ho is satisfied that there is just ground for so doing. Provided that if the Magistrate is satisfied that he is willfully avoiding service, or willfully neglects to attend the Court, the Magistrate may proceed to hear and determine the case ex parte. Any order so made may be set aside for good cause shown, on application made within three months from the date thereof. It is obvious that the proceedings envisaged by Chapter xxxvi of the Code cannto be considered to be purely civil proceedings, though the person in default, against whom maintenance order is sought, may nto be an accused person whose examination without oath is mandatory as prescribed by Section 342 of the Code and he may be entitled to appear as a witness as well. I am aware of some conflict of judicial opinion in some old cases where on the ground that the procedure of trying maintenance applications being that of a summons case, failure to examine the person proceeded against under Section 342 of the Code, was held to vitiate the proceedings, but that conflict was set at rest by later decisions in which this section was held inapplicable to proceedings under S. These proceedings seem to me to be clearly criminal proceedings and I find no logical and rational basis for holding them to be civil proceedings so as to exclude the applicability of Article 134 of the Constitution. The difference between the relative scope of a civil revision and of a criminal revision is well known and revision against an order under Section 488, Cr. The children in these proceedings may, if they are so advised, even now apply to a competent Court under Section 488 for maintenance and if they make out a good claim to the satisfaction of the Court, I have nto the least doubt that suitable orders would be made in accordance with law.',
		'caseanalysis' => null,
		'casesref' => 'Kapur Singh v. Union of India;',
		'citingcases' => '',
		'counselplain' => ' O.P. Sharma, Adv',
		'counseldef' => ' Madan Bhatia, Adv.',
		'court' => 'Delhi',
		'court_type' => 'HC',
		'decidedon' => '1968-12-17',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' I.D. Dua, C.J.',
		'judgement' => '<p>1. In this application for a certificate of fitness for appeal to the Supreme Court from an order made on revision by this Court in proceedings under Section 488, Cr. P. C, a preliminary objection has been raised that Article 134(1)(c) of the Constitution is inapplicable because proceedings under Section 488 are civil proceedings and nto criminal proceedings. Reliance in support of this preliminary objection has been placed on a decision of the Supreme Court in Nand Lal Misra v. K.L. Misra, : 1960CriLJ1246 . Emphasis has been laid on the observations In this Judgment that Chapter xxxvi of the Code of Criminal Procedure is a self-contained one and the relief given under it is essentially of a civil nature. From this sentence, it is sought to be argued that the proceedings under section 488 are civil proceedings and nto criminal proceedings. Reliance has also been placed on a still more recent Judgment of the Supreme Court in Narayan Row v. Ishwar Lal, : [1965]57ITR149(SC) , in which while dealing with an appeal from an order made by the Bombay High Court under Article 226 of the Constitution, in a matter pertaining to recovery of income-tax, it was observed that the proceedings were civil proceedings within the meaning of Article 133(1)(c) of the Constitution. Reference has next been made to a Full Bench decision of the Punjab High Court in Kapur Singh v. Union of India, where also the question about the nature of proceedings under Articles 133 and 226 of the Constitution came up for discussion. In my opinion, none of these decisions throw helpful light on the question which the preliminary objection poses. Section 488 reads as under:</p><p>'488. Order for maintenance of wives and children.--(1) If any person having sufficient means neglects or refuses to maintain his wife or his legitimate or illegitimate child unable to maintain itself, the District Magistrate, a Presidency Magistrate, a Sub-Divisional Magistrate or 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, at such monthly rate, nto exceeding five hundred rupees in the whole, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate from time to time directs.</p><p> (2) Such allowance shall be payable from the date of the order, or if so ordered from the date of the application for maintenance.</p><p> (3) If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in manner hereinbefore provided for levying fines, and may sentence such person, for the whole or any part of each month's allowance remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made:</p><p> Provided that, if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if ho is satisfied that there is just ground for so doing.</p><p> If a husband has contracted marriage with another wife or keeps a mistress, it shall be considered to be just ground for his wife's refusal to live with him:</p><p> Provided, further that no warrant shall be issued for the recovery of any amount due under this direction unless application be made to the Court to levy such amount within a period of one year from the date on which it became due.</p><p> (4) No wife shall be entitled to receive an allowance from her husband under this section if she is living in adultery, or if, without any sufficient reason she refuses to live with her husband, or if they are living separately by mutual consent.</p><p> (5) On proof that any wife in whose favor an order has been made under this section is living in adultery, or that without sufficient reason she refuses to live with her husband, or that they are living separately by mutual consent, the Magistrate shall cancel the order.</p><p> (6) All evidence under this Chapter shall be taken in the presence of the husband or father, as the case may be, or, when his personal attendance is dispensed with, in the presence of his pleader, and shall be recorded in :he manner prescribed in the case of summons-cases:</p><p> Provided that if the Magistrate is satisfied that he is willfully avoiding service, or willfully neglects to attend the Court, the Magistrate may proceed to hear and determine the case ex parte. Any order so made may be set aside for good cause shown, on application made within three months from the date thereof.</p><p> (7) The Court in dealing with applications under this section shall have power to make such order as to costs as may be just.</p><p> (8) Proceedings under this section may be taken against any person in any district where he resides or is, or where he last resided with his wife or, as the case may be, the mother of the illegitimate child.' </p><p>It is obvious that it confers power to order maintenance, on District Magistrates, Presidency Magistrates, Sub-Divisional Magistrates and Magistrates of the 1st Class: Courts which are indisputably criminal Courts and nto civil Courts. Sub-section (6) provides that all evidence under this Chapter has to be taken in the presence of the husband or father, as the case may be, or when his personal attendance is dispensed with, in the presence of his pleader and it is to be recorded in the manner prescribed in the case of summons-cases. This is a further indication that the proceedings are criminal proceedings and nto civil proceedings. The argument that there is no penalty imposed by this section and the proceedings thereforee, cannto be described as 'criminal' is also unacceptable because according to Section 488(3), which provides for enforcement of orders, in certain circumstances, the person in default can be imprisoned for a term which may extend to one month or until payment, if sooner made, though I should nto be understood to hold this consideration to be conclusive on the point either way. It is obvious that the proceedings envisaged by Chapter xxxvi of the Code cannto be considered to be purely civil proceedings, though the person in default, against whom maintenance order is sought, may nto be an accused person whose examination without oath is mandatory as prescribed by Section 342 of the Code and he may be entitled to appear as a witness as well. I am aware of some conflict of judicial opinion in some old cases where on the ground that the procedure of trying maintenance applications being that of a summons case, failure to examine the person proceeded against under Section 342 of the Code, was held to vitiate the proceedings, but that conflict was set at rest by later decisions in which this section was held inapplicable to proceedings under S. 488. However, consistently all the Courts dealing with that question had assumed that the proceedings were criminal proceedings governed by the Code of Criminal Procedure, both in regard to the trial and the power of revision of the Court of the Sessions Judge and of the High Court.</p><p>2. Chapter 7-A of Vol. Iii of Rules and Orders of the Punjab High Court dealing with the maintenance cases also recites that proceedings under Section 488 of the Code of Criminal Procedure are of a criminal character and the provisions contained therein must, thereforee, be strictly followed. Keeping in view the scheme of Chapter xxxvi of the Code of Criminal Procedure and also the scheme of Articles 133 and 134 of the Constitution, I have little hesitation in holding that proceedings under Section 488, Cr. P. C., do fall within the contemplation of criminal proceedings within the meaning of Article 134. The expression 'criminal proceedings' in this Article, seems to me to be wide enough to include maintenance proceedings adjudicated upon by Magistrates initiated under Chapter xxxvI. Such maintenance proceedings are, in my view, criminal proceedings, designed by way of summary process to provide to deserted wives and neglected children, adjudication of their civil right of maintenance up to al limited amount, enforceable through criminal Courts, to avoid the notorious delays of civil proceedings, which may still be utilised for fuller relief under the general law in the ordinary civil Courts.</p><p>3. And then, what directly concerns this Court is the question of the nature of the proceedings on revision in this Court. These proceedings seem to me to be clearly criminal proceedings and I find no logical and rational basis for holding them to be civil proceedings so as to exclude the applicability of Article 134 of the Constitution. Nto only are they registered in this Court as criminal revisions but they are also presented in this Court under the Cr. P. C. and nto under the Civil P. C. The difference between the relative scope of a civil revision and of a criminal revision is well known and revision against an order under Section 488, Cr. P. C. has never been held to my knowledge to be a civil revision so as to exclude the applicability of Art. 134(1)(c) of the Constitution. The preliminary objection is, thereforee, nto easy to sustain.</p><p>4. Coming now to the merits, the learned counsel for the petitioner has very strongly argued that according to Section 488 of the Code, a separate order should have been made granting maintenance to the children. In my opinion, the question which concerns this Court in this present proceedings is nto so much as to what should have been done by the Magistrate while dealing with Section 488, Cr. P. C., but whether there is any such infirmity in the order of this Court as would justify a certificate of fitness within the contemplation of Article 134(1)(c) of the Constitution. It is nto argued, and it cannto be argued, that clause (a) or clause (b) of Article 134(1) covers this case. Clause (c) of this sub-article postulates a case in which a difficult question involving an unsettled principle requires to be finally determined by the Supreme Court. That does nto seem to be the case before me, and indeed no attempt has been made to show that there is any question of principle involved in the impugned order which requires authoritative decision by the Supreme Court. But this apart, the grant of maintenance in this case is a tentative order and it is always open to the authorities to ask for re-consideration and re-determination on account of change of circumstances. The children in these proceedings may, if they are so advised, even now apply to a competent Court under Section 488 for maintenance and if they make out a good claim to the satisfaction of the Court, I have nto the least doubt that suitable orders would be made in accordance with law. The revision on their behalf was held to be barred by time and this Court did nto consider it proper to exercise its suo motu power of revision in this regard. There is no decision on the merits against them by this Court and it has nto been shown that the impugned decision is based on any wrong principle of law which requires further examination by the Supreme Court.</p><p>5. For the foregoing reasons, this application fails and is dismissed.</p><p>6. Application dismissed.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'AIR1969Delhi298; 1969CriLJ1243; ILR1968Delhi545',
		'ratiodecidendi' => '',
		'respondent' => 'Sant Singh',
		'sub' => 'Criminal;Constitution',
		'link' => null,
		'circuit' => null
	)
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$content = array(
	(int) 0 => '<p>1. In this application for a certificate of fitness for appeal to the Supreme Court from an order made on revision by this Court in proceedings under Section 488, Cr. P. C, a preliminary objection has been raised that Article 134(1)(c) of the Constitution is inapplicable because proceedings under Section 488 are civil proceedings and nto criminal proceedings. Reliance in support of this preliminary objection has been placed on a decision of the Supreme Court in Nand Lal Misra v. K.L. Misra, : 1960CriLJ1246 . Emphasis has been laid on the observations In this Judgment that Chapter xxxvi of the Code of Criminal Procedure is a self-contained one and the relief given under it is essentially of a civil nature. From this sentence, it is sought to be argued that the proceedings under section 488 are civil proceedings and nto criminal proceedings. Reliance has also been placed on a still more recent Judgment of the Supreme Court in Narayan Row v. Ishwar Lal, : [1965]57ITR149(SC) , in which while dealing with an appeal from an order made by the Bombay High Court under Article 226 of the Constitution, in a matter pertaining to recovery of income-tax, it was observed that the proceedings were civil proceedings within the meaning of Article 133(1)(c) of the Constitution. Reference has next been made to a Full Bench decision of the Punjab High Court in Kapur Singh v. Union of India, where also the question about the nature of proceedings under Articles 133 and 226 of the Constitution came up for discussion. In my opinion, none of these decisions throw helpful light on the question which the preliminary objection poses. Section 488 reads as under:',
	(int) 1 => '<p>'488. Order for maintenance of wives and children.--(1) If any person having sufficient means neglects or refuses to maintain his wife or his legitimate or illegitimate child unable to maintain itself, the District Magistrate, a Presidency Magistrate, a Sub-Divisional Magistrate or 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, at such monthly rate, nto exceeding five hundred rupees in the whole, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate from time to time directs.',
	(int) 2 => '<p> (2) Such allowance shall be payable from the date of the order, or if so ordered from the date of the application for maintenance.',
	(int) 3 => '<p> (3) If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in manner hereinbefore provided for levying fines, and may sentence such person, for the whole or any part of each month's allowance remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made:',
	(int) 4 => '<p> Provided that, if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if ho is satisfied that there is just ground for so doing.',
	(int) 5 => '<p> If a husband has contracted marriage with another wife or keeps a mistress, it shall be considered to be just ground for his wife's refusal to live with him:',
	(int) 6 => '<p> Provided, further that no warrant shall be issued for the recovery of any amount due under this direction unless application be made to the Court to levy such amount within a period of one year from the date on which it became due.',
	(int) 7 => '<p> (4) No wife shall be entitled to receive an allowance from her husband under this section if she is living in adultery, or if, without any sufficient reason she refuses to live with her husband, or if they are living separately by mutual consent.',
	(int) 8 => '<p> (5) On proof that any wife in whose favor an order has been made under this section is living in adultery, or that without sufficient reason she refuses to live with her husband, or that they are living separately by mutual consent, the Magistrate shall cancel the order.',
	(int) 9 => '<p> (6) All evidence under this Chapter shall be taken in the presence of the husband or father, as the case may be, or, when his personal attendance is dispensed with, in the presence of his pleader, and shall be recorded in :he manner prescribed in the case of summons-cases:',
	(int) 10 => '<p> Provided that if the Magistrate is satisfied that he is willfully avoiding service, or willfully neglects to attend the Court, the Magistrate may proceed to hear and determine the case ex parte. Any order so made may be set aside for good cause shown, on application made within three months from the date thereof.',
	(int) 11 => '<p> (7) The Court in dealing with applications under this section shall have power to make such order as to costs as may be just.',
	(int) 12 => '<p> (8) Proceedings under this section may be taken against any person in any district where he resides or is, or where he last resided with his wife or, as the case may be, the mother of the illegitimate child.' ',
	(int) 13 => '<p>It is obvious that it confers power to order maintenance, on District Magistrates, Presidency Magistrates, Sub-Divisional Magistrates and Magistrates of the 1st Class: Courts which are indisputably criminal Courts and nto civil Courts. Sub-section (6) provides that all evidence under this Chapter has to be taken in the presence of the husband or father, as the case may be, or when his personal attendance is dispensed with, in the presence of his pleader and it is to be recorded in the manner prescribed in the case of summons-cases. This is a further indication that the proceedings are criminal proceedings and nto civil proceedings. The argument that there is no penalty imposed by this section and the proceedings thereforee, cannto be described as 'criminal' is also unacceptable because according to Section 488(3), which provides for enforcement of orders, in certain circumstances, the person in default can be imprisoned for a term which may extend to one month or until payment, if sooner made, though I should nto be understood to hold this consideration to be conclusive on the point either way. It is obvious that the proceedings envisaged by Chapter xxxvi of the Code cannto be considered to be purely civil proceedings, though the person in default, against whom maintenance order is sought, may nto be an accused person whose examination without oath is mandatory as prescribed by Section 342 of the Code and he may be entitled to appear as a witness as well. I am aware of some conflict of judicial opinion in some old cases where on the ground that the procedure of trying maintenance applications being that of a summons case, failure to examine the person proceeded against under Section 342 of the Code, was held to vitiate the proceedings, but that conflict was set at rest by later decisions in which this section was held inapplicable to proceedings under S. 488. However, consistently all the Courts dealing with that question had assumed that the proceedings were criminal proceedings governed by the Code of Criminal Procedure, both in regard to the trial and the power of revision of the Court of the Sessions Judge and of the High Court.',
	(int) 14 => '<p>2. Chapter 7-A of Vol. Iii of Rules and Orders of the Punjab High Court dealing with the maintenance cases also recites that proceedings under Section 488 of the Code of Criminal Procedure are of a criminal character and the provisions contained therein must, thereforee, be strictly followed. Keeping in view the scheme of Chapter xxxvi of the Code of Criminal Procedure and also the scheme of Articles 133 and 134 of the Constitution, I have little hesitation in holding that proceedings under Section 488, Cr. P. C., do fall within the contemplation of criminal proceedings within the meaning of Article 134. The expression 'criminal proceedings' in this Article, seems to me to be wide enough to include maintenance proceedings adjudicated upon by Magistrates initiated under Chapter xxxvI. Such maintenance proceedings are, in my view, criminal proceedings, designed by way of summary process to provide to deserted wives and neglected children, adjudication of their civil right of maintenance up to al limited amount, enforceable through criminal Courts, to avoid the notorious delays of civil proceedings, which may still be utilised for fuller relief under the general law in the ordinary civil Courts.',
	(int) 15 => '<p>3. And then, what directly concerns this Court is the question of the nature of the proceedings on revision in this Court. These proceedings seem to me to be clearly criminal proceedings and I find no logical and rational basis for holding them to be civil proceedings so as to exclude the applicability of Article 134 of the Constitution. Nto only are they registered in this Court as criminal revisions but they are also presented in this Court under the Cr. P. C. and nto under the Civil P. C. The difference between the relative scope of a civil revision and of a criminal revision is well known and revision against an order under Section 488, Cr. P. C. has never been held to my knowledge to be a civil revision so as to exclude the applicability of Art. 134(1)(c) of the Constitution. The preliminary objection is, thereforee, nto easy to sustain.',
	(int) 16 => '<p>4. Coming now to the merits, the learned counsel for the petitioner has very strongly argued that according to Section 488 of the Code, a separate order should have been made granting maintenance to the children. In my opinion, the question which concerns this Court in this present proceedings is nto so much as to what should have been done by the Magistrate while dealing with Section 488, Cr. P. C., but whether there is any such infirmity in the order of this Court as would justify a certificate of fitness within the contemplation of Article 134(1)(c) of the Constitution. It is nto argued, and it cannto be argued, that clause (a) or clause (b) of Article 134(1) covers this case. Clause (c) of this sub-article postulates a case in which a difficult question involving an unsettled principle requires to be finally determined by the Supreme Court. That does nto seem to be the case before me, and indeed no attempt has been made to show that there is any question of principle involved in the impugned order which requires authoritative decision by the Supreme Court. But this apart, the grant of maintenance in this case is a tentative order and it is always open to the authorities to ask for re-consideration and re-determination on account of change of circumstances. The children in these proceedings may, if they are so advised, even now apply to a competent Court under Section 488 for maintenance and if they make out a good claim to the satisfaction of the Court, I have nto the least doubt that suitable orders would be made in accordance with law. The revision on their behalf was held to be barred by time and this Court did nto consider it proper to exercise its suo motu power of revision in this regard. There is no decision on the merits against them by this Court and it has nto been shown that the impugned decision is based on any wrong principle of law which requires further examination by the Supreme Court.',
	(int) 17 => '<p>5. For the foregoing reasons, this application fails and is dismissed.',
	(int) 18 => '<p>6. Application dismissed.<p>',
	(int) 19 => '<p>'
)
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4. Coming now to the merits, the learned counsel for the petitioner has very strongly argued that according to Section 488 of the Code, a separate order should have been made granting maintenance to the children. In my opinion, the question which concerns this Court in this present proceedings is nto so much as to what should have been done by the Magistrate while dealing with Section 488, Cr. P. C., but whether there is any such infirmity in the order of this Court as would justify a certificate of fitness within the contemplation of Article 134(1)(c) of the Constitution. It is nto argued, and it cannto be argued, that clause (a) or clause (b) of Article 134(1) covers this case. Clause (c) of this sub-article postulates a case in which a difficult question involving an unsettled principle requires to be finally determined by the Supreme Court. That does nto seem to be the case before me, and indeed no attempt has been made to show that there is any question of principle involved in the impugned order which requires authoritative decision by the Supreme Court. But this apart, the grant of maintenance in this case is a tentative order and it is always open to the authorities to ask for re-consideration and re-determination on account of change of circumstances. The children in these proceedings may, if they are so advised, even now apply to a competent Court under Section 488 for maintenance and if they make out a good claim to the satisfaction of the Court, I have nto the least doubt that suitable orders would be made in accordance with law. The revision on their behalf was held to be barred by time and this Court did nto consider it proper to exercise its suo motu power of revision in this regard. There is no decision on the merits against them by this Court and it has nto been shown that the impugned decision is based on any wrong principle of law which requires further examination by the Supreme Court.

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	'title_for_layout' => 'Harbhajan Kaur Vs Sant Singh - Citation 681173 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '681173',
			'acts' => '<a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 133, 134, 134(1) and 226; <a href="/act/133280/code-of-criminal-procedure-1898-complete-act">Code of Criminal Procedure (CrPC) , 1898</a> - Sections 342, 488, 488(3) and 488(6)',
			'appealno' => 'Criminal Misc. (SCA) No. 855 of 1968',
			'appellant' => 'Harbhajan Kaur',
			'authreffered' => '',
			'casename' => 'Harbhajan Kaur Vs. Sant Singh',
			'casenote' => ' (i) 
Criminal Procedure Code (V of 1898)- Section 488--Proceedings under--nature of--are criminal proceedings and nto Civil proceedings.; The proceedings envisaged by  Chapter xxxvI of the Code cannto be considered 
purely civil proceedings, though the person in default, against whom maintenance order is sought, may nto be an accused person, whose examination without oath is mandatory as prescribed by section 342 of the Code and he may be entitled to appear as a witness as 
well.; Chapter 7-A of Vol. III of Rules and Orders of the Punjab High Court dealing with the maintenance cases also recites that proceedings under section 488 of the Code of Criminal Procedure are of criminal character and the provisions contained therein must, thereforee, be strictly followed.; (ii) Constitution of India - Article 134--Proceedings under Section 488 within the contemplation of--expression--'Criminal proceedings'--scope of.;  That the proceedings under Section 488 Cr. P.C. do fall within the contemplation of criminal proceedings within the meaning of Article 134. 
The expression 'Criminal Proceedings' in this Article is wide enough to include maintenance proceedings adjucated upon by Magistrate initiated under Chapter xxxvI. Such maintenance proceedings are criminal proceedings designed by way of summary process to provide to deserted wives and neglected children adjudication of their civil right of maintenance up to a limited amount enforceable through criminal courts, to avoid the notorious delays of civil proceedings, which may still be utilised for fuller relief under the general law 
in the ordinary civil courts. - Section 13: [Altamas Kabir & Cyriac Joseph,JJ] Custody of child - Welfare of child vis--vis comity of Courts - The minor girl child of 3 1/2 years was brought to India by her mother. The minor girl was a citizen of U.K. being born in U.K. her parents had set up their matrimonial home in U.K. and had acquired status of permanent residents of U.K. The child with her mother was supposed to return to U.K. but the mother cancelled her tickets and remained behind in India. The husband thereupon started procededings before the High Court of Justice, Family Division. U.K. praying for an order that the minor child be made a ward of the Court and for a direction upon the wife to return the minor child to the jurisdiction of the said Court. A further direction was given for the passport and other international travel documents of the minor child to be handed over to the Solicitors of the husband. A petition seeking protection of minor child was thereupon filed by father of the husband before Delhi High Court. A direction for handing over custody of child to father of husband was also sought. The High Court considering fact that the U.K. court was already in seisin of  matter and had passed an interim order and by relying on principle of comity of Nations and Comity of Judgments of the courts of two different countries in deciding the matter directed the wife to take the child of her own to U.K.or hand it over to father of husband to be taken to U.K. as measure of interim custody and that it would be for the U.K. Court to decide the question of custody  -  Order was challenged by wife -  Held, the order of High Court was not liable to be interfered with. Although, on first impression, it would appear that the interests of the minor child would best be served if she is allowed to remain with the wife, the order of U.K. court cannot be lost sight of., The order of U.K. Court except for insisiting that the minor be returned to its jurisdiction, the English Court did not intend to separate the child from the mother until a final decision was taken with regard to the custody of the child. The ultimate decision in that regard has to be left to the English Court having regard to the nationality of the child and the fact that both the parents had worked for gain in the U.K. and had also acquired permanent resident status in the U.K. English Court has not directed that the custody of the child should be handed over to  the father but that the child should be returned to the jurisdiction of the Courts in the U.K. which would then proceed to determine as to who would be best suited to have the custody of the child. The High Court has taken into consideration both the questions relating to the Comity of Courts as well as the interest of the minor child, which, no doubt, is one of the most important considerations in matters relating to custody of a minor child.  -  Provided that, if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if ho is satisfied that there is just ground for so doing. Provided that if the Magistrate is satisfied that he is willfully avoiding service, or willfully neglects to attend the Court, the Magistrate may proceed to hear and determine the case ex parte. Any order so made may be set aside for good cause shown, on application made within three months from the date thereof. It is obvious that the proceedings envisaged by Chapter xxxvi of the Code cannto be considered to be purely civil proceedings, though the person in default, against whom maintenance order is sought, may nto be an accused person whose examination without oath is mandatory as prescribed by Section 342 of the Code and he may be entitled to appear as a witness as well. I am aware of some conflict of judicial opinion in some old cases where on the ground that the procedure of trying maintenance applications being that of a summons case, failure to examine the person proceeded against under Section 342 of the Code, was held to vitiate the proceedings, but that conflict was set at rest by later decisions in which this section was held inapplicable to proceedings under S. These proceedings seem to me to be clearly criminal proceedings and I find no logical and rational basis for holding them to be civil proceedings so as to exclude the applicability of Article 134 of the Constitution. The difference between the relative scope of a civil revision and of a criminal revision is well known and revision against an order under Section 488, Cr. The children in these proceedings may, if they are so advised, even now apply to a competent Court under Section 488 for maintenance and if they make out a good claim to the satisfaction of the Court, I have nto the least doubt that suitable orders would be made in accordance with law.',
			'caseanalysis' => null,
			'casesref' => 'Kapur Singh v. Union of India;',
			'citingcases' => '',
			'counselplain' => ' O.P. Sharma, Adv',
			'counseldef' => ' Madan Bhatia, Adv.',
			'court' => 'Delhi',
			'court_type' => 'HC',
			'decidedon' => '1968-12-17',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' I.D. Dua, C.J.',
			'judgement' => '<p style="text-align: justify;">1. In this application for a certificate of fitness for appeal to the Supreme Court from an order made on revision by this Court in proceedings under Section 488, Cr. P. C, a preliminary objection has been raised that Article 134(1)(c) of the Constitution is inapplicable because proceedings under Section 488 are civil proceedings and nto criminal proceedings. Reliance in support of this preliminary objection has been placed on a decision of the Supreme Court in Nand Lal Misra v. K.L. Misra, : 1960CriLJ1246 . Emphasis has been laid on the observations In this Judgment that Chapter xxxvi of the Code of Criminal Procedure is a self-contained one and the relief given under it is essentially of a civil nature. From this sentence, it is sought to be argued that the proceedings under section 488 are civil proceedings and nto criminal proceedings. Reliance has also been placed on a still more recent Judgment of the Supreme Court in Narayan Row v. Ishwar Lal, : [1965]57ITR149(SC) , in which while dealing with an appeal from an order made by the Bombay High Court under Article 226 of the Constitution, in a matter pertaining to recovery of income-tax, it was observed that the proceedings were civil proceedings within the meaning of Article 133(1)(c) of the Constitution. Reference has next been made to a Full Bench decision of the Punjab High Court in Kapur Singh v. Union of India, where also the question about the nature of proceedings under Articles 133 and 226 of the Constitution came up for discussion. In my opinion, none of these decisions throw helpful light on the question which the preliminary objection poses. Section 488 reads as under:</p><p style="text-align: justify;">'488. Order for maintenance of wives and children.--(1) If any person having sufficient means neglects or refuses to maintain his wife or his legitimate or illegitimate child unable to maintain itself, the District Magistrate, a Presidency Magistrate, a Sub-Divisional Magistrate or 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, at such monthly rate, nto exceeding five hundred rupees in the whole, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate from time to time directs.</p><p style="text-align: justify;"> (2) Such allowance shall be payable from the date of the order, or if so ordered from the date of the application for maintenance.</p><p style="text-align: justify;"> (3) If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in manner hereinbefore provided for levying fines, and may sentence such person, for the whole or any part of each month's allowance remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made:</p><p style="text-align: justify;"> Provided that, if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if ho is satisfied that there is just ground for so doing.</p><p style="text-align: justify;"> If a husband has contracted marriage with another wife or keeps a mistress, it shall be considered to be just ground for his wife's refusal to live with him:</p><p style="text-align: justify;"> Provided, further that no warrant shall be issued for the recovery of any amount due under this direction unless application be made to the Court to levy such amount within a period of one year from the date on which it became due.</p><p style="text-align: justify;"> (4) No wife shall be entitled to receive an allowance from her husband under this section if she is living in adultery, or if, without any sufficient reason she refuses to live with her husband, or if they are living separately by mutual consent.</p><p style="text-align: justify;"> (5) On proof that any wife in whose favor an order has been made under this section is living in adultery, or that without sufficient reason she refuses to live with her husband, or that they are living separately by mutual consent, the Magistrate shall cancel the order.</p><p style="text-align: justify;"> (6) All evidence under this Chapter shall be taken in the presence of the husband or father, as the case may be, or, when his personal attendance is dispensed with, in the presence of his pleader, and shall be recorded in :he manner prescribed in the case of summons-cases:</p><p style="text-align: justify;"> Provided that if the Magistrate is satisfied that he is willfully avoiding service, or willfully neglects to attend the Court, the Magistrate may proceed to hear and determine the case ex parte. Any order so made may be set aside for good cause shown, on application made within three months from the date thereof.</p><p style="text-align: justify;"> (7) The Court in dealing with applications under this section shall have power to make such order as to costs as may be just.</p><p style="text-align: justify;"> (8) Proceedings under this section may be taken against any person in any district where he resides or is, or where he last resided with his wife or, as the case may be, the mother of the illegitimate child.' </p><p style="text-align: justify;">It is obvious that it confers power to order maintenance, on District Magistrates, Presidency Magistrates, Sub-Divisional Magistrates and Magistrates of the 1st Class: Courts which are indisputably criminal Courts and nto civil Courts. Sub-section (6) provides that all evidence under this Chapter has to be taken in the presence of the husband or father, as the case may be, or when his personal attendance is dispensed with, in the presence of his pleader and it is to be recorded in the manner prescribed in the case of summons-cases. This is a further indication that the proceedings are criminal proceedings and nto civil proceedings. The argument that there is no penalty imposed by this section and the proceedings thereforee, cannto be described as 'criminal' is also unacceptable because according to Section 488(3), which provides for enforcement of orders, in certain circumstances, the person in default can be imprisoned for a term which may extend to one month or until payment, if sooner made, though I should nto be understood to hold this consideration to be conclusive on the point either way. It is obvious that the proceedings envisaged by Chapter xxxvi of the Code cannto be considered to be purely civil proceedings, though the person in default, against whom maintenance order is sought, may nto be an accused person whose examination without oath is mandatory as prescribed by Section 342 of the Code and he may be entitled to appear as a witness as well. I am aware of some conflict of judicial opinion in some old cases where on the ground that the procedure of trying maintenance applications being that of a summons case, failure to examine the person proceeded against under Section 342 of the Code, was held to vitiate the proceedings, but that conflict was set at rest by later decisions in which this section was held inapplicable to proceedings under S. 488. However, consistently all the Courts dealing with that question had assumed that the proceedings were criminal proceedings governed by the Code of Criminal Procedure, both in regard to the trial and the power of revision of the Court of the Sessions Judge and of the High Court.</p><p style="text-align: justify;">2. Chapter 7-A of Vol. Iii of Rules and Orders of the Punjab High Court dealing with the maintenance cases also recites that proceedings under Section 488 of the Code of Criminal Procedure are of a criminal character and the provisions contained therein must, thereforee, be strictly followed. Keeping in view the scheme of Chapter xxxvi of the Code of Criminal Procedure and also the scheme of Articles 133 and 134 of the Constitution, I have little hesitation in holding that proceedings under Section 488, Cr. P. C., do fall within the contemplation of criminal proceedings within the meaning of Article 134. The expression 'criminal proceedings' in this Article, seems to me to be wide enough to include maintenance proceedings adjudicated upon by Magistrates initiated under Chapter xxxvI. Such maintenance proceedings are, in my view, criminal proceedings, designed by way of summary process to provide to deserted wives and neglected children, adjudication of their civil right of maintenance up to al limited amount, enforceable through criminal Courts, to avoid the notorious delays of civil proceedings, which may still be utilised for fuller relief under the general law in the ordinary civil Courts.</p><p style="text-align: justify;">3. And then, what directly concerns this Court is the question of the nature of the proceedings on revision in this Court. These proceedings seem to me to be clearly criminal proceedings and I find no logical and rational basis for holding them to be civil proceedings so as to exclude the applicability of Article 134 of the Constitution. Nto only are they registered in this Court as criminal revisions but they are also presented in this Court under the Cr. P. C. and nto under the Civil P. C. The difference between the relative scope of a civil revision and of a criminal revision is well known and revision against an order under Section 488, Cr. P. C. has never been held to my knowledge to be a civil revision so as to exclude the applicability of Art. 134(1)(c) of the Constitution. The preliminary objection is, thereforee, nto easy to sustain.</p><p style="text-align: justify;">4. Coming now to the merits, the learned counsel for the petitioner has very strongly argued that according to Section 488 of the Code, a separate order should have been made granting maintenance to the children. In my opinion, the question which concerns this Court in this present proceedings is nto so much as to what should have been done by the Magistrate while dealing with Section 488, Cr. P. C., but whether there is any such infirmity in the order of this Court as would justify a certificate of fitness within the contemplation of Article 134(1)(c) of the Constitution. It is nto argued, and it cannto be argued, that clause (a) or clause (b) of Article 134(1) covers this case. Clause (c) of this sub-article postulates a case in which a difficult question involving an unsettled principle requires to be finally determined by the Supreme Court. That does nto seem to be the case before me, and indeed no attempt has been made to show that there is any question of principle involved in the impugned order which requires authoritative decision by the Supreme Court. But this apart, the grant of maintenance in this case is a tentative order and it is always open to the authorities to ask for re-consideration and re-determination on account of change of circumstances. The children in these proceedings may, if they are so advised, even now apply to a competent Court under Section 488 for maintenance and if they make out a good claim to the satisfaction of the Court, I have nto the least doubt that suitable orders would be made in accordance with law. The revision on their behalf was held to be barred by time and this Court did nto consider it proper to exercise its suo motu power of revision in this regard. There is no decision on the merits against them by this Court and it has nto been shown that the impugned decision is based on any wrong principle of law which requires further examination by the Supreme Court.</p><p style="text-align: justify;">5. For the foregoing reasons, this application fails and is dismissed.</p><p style="text-align: justify;">6. Application dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => 'AIR1969Delhi298; 1969CriLJ1243; ILR1968Delhi545',
			'ratiodecidendi' => '',
			'respondent' => 'Sant Singh',
			'sub' => 'Criminal;Constitution',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'harbhajan-kaur-vs-sant-singh',
	'args' => array(
		(int) 0 => '681173',
		(int) 1 => 'harbhajan-kaur-vs-sant-singh'
	)
)
$title_for_layout = 'Harbhajan Kaur Vs Sant Singh - Citation 681173 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '681173',
		'acts' => '<a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 133, 134, 134(1) and 226; <a href="/act/133280/code-of-criminal-procedure-1898-complete-act">Code of Criminal Procedure (CrPC) , 1898</a> - Sections 342, 488, 488(3) and 488(6)',
		'appealno' => 'Criminal Misc. (SCA) No. 855 of 1968',
		'appellant' => 'Harbhajan Kaur',
		'authreffered' => '',
		'casename' => 'Harbhajan Kaur Vs. Sant Singh',
		'casenote' => ' (i) 
Criminal Procedure Code (V of 1898)- Section 488--Proceedings under--nature of--are criminal proceedings and nto Civil proceedings.; The proceedings envisaged by  Chapter xxxvI of the Code cannto be considered 
purely civil proceedings, though the person in default, against whom maintenance order is sought, may nto be an accused person, whose examination without oath is mandatory as prescribed by section 342 of the Code and he may be entitled to appear as a witness as 
well.; Chapter 7-A of Vol. III of Rules and Orders of the Punjab High Court dealing with the maintenance cases also recites that proceedings under section 488 of the Code of Criminal Procedure are of criminal character and the provisions contained therein must, thereforee, be strictly followed.; (ii) Constitution of India - Article 134--Proceedings under Section 488 within the contemplation of--expression--'Criminal proceedings'--scope of.;  That the proceedings under Section 488 Cr. P.C. do fall within the contemplation of criminal proceedings within the meaning of Article 134. 
The expression 'Criminal Proceedings' in this Article is wide enough to include maintenance proceedings adjucated upon by Magistrate initiated under Chapter xxxvI. Such maintenance proceedings are criminal proceedings designed by way of summary process to provide to deserted wives and neglected children adjudication of their civil right of maintenance up to a limited amount enforceable through criminal courts, to avoid the notorious delays of civil proceedings, which may still be utilised for fuller relief under the general law 
in the ordinary civil courts. - Section 13: [Altamas Kabir & Cyriac Joseph,JJ] Custody of child - Welfare of child vis--vis comity of Courts - The minor girl child of 3 1/2 years was brought to India by her mother. The minor girl was a citizen of U.K. being born in U.K. her parents had set up their matrimonial home in U.K. and had acquired status of permanent residents of U.K. The child with her mother was supposed to return to U.K. but the mother cancelled her tickets and remained behind in India. The husband thereupon started procededings before the High Court of Justice, Family Division. U.K. praying for an order that the minor child be made a ward of the Court and for a direction upon the wife to return the minor child to the jurisdiction of the said Court. A further direction was given for the passport and other international travel documents of the minor child to be handed over to the Solicitors of the husband. A petition seeking protection of minor child was thereupon filed by father of the husband before Delhi High Court. A direction for handing over custody of child to father of husband was also sought. The High Court considering fact that the U.K. court was already in seisin of  matter and had passed an interim order and by relying on principle of comity of Nations and Comity of Judgments of the courts of two different countries in deciding the matter directed the wife to take the child of her own to U.K.or hand it over to father of husband to be taken to U.K. as measure of interim custody and that it would be for the U.K. Court to decide the question of custody  -  Order was challenged by wife -  Held, the order of High Court was not liable to be interfered with. Although, on first impression, it would appear that the interests of the minor child would best be served if she is allowed to remain with the wife, the order of U.K. court cannot be lost sight of., The order of U.K. Court except for insisiting that the minor be returned to its jurisdiction, the English Court did not intend to separate the child from the mother until a final decision was taken with regard to the custody of the child. The ultimate decision in that regard has to be left to the English Court having regard to the nationality of the child and the fact that both the parents had worked for gain in the U.K. and had also acquired permanent resident status in the U.K. English Court has not directed that the custody of the child should be handed over to  the father but that the child should be returned to the jurisdiction of the Courts in the U.K. which would then proceed to determine as to who would be best suited to have the custody of the child. The High Court has taken into consideration both the questions relating to the Comity of Courts as well as the interest of the minor child, which, no doubt, is one of the most important considerations in matters relating to custody of a minor child.  -  Provided that, if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if ho is satisfied that there is just ground for so doing. Provided that if the Magistrate is satisfied that he is willfully avoiding service, or willfully neglects to attend the Court, the Magistrate may proceed to hear and determine the case ex parte. Any order so made may be set aside for good cause shown, on application made within three months from the date thereof. It is obvious that the proceedings envisaged by Chapter xxxvi of the Code cannto be considered to be purely civil proceedings, though the person in default, against whom maintenance order is sought, may nto be an accused person whose examination without oath is mandatory as prescribed by Section 342 of the Code and he may be entitled to appear as a witness as well. I am aware of some conflict of judicial opinion in some old cases where on the ground that the procedure of trying maintenance applications being that of a summons case, failure to examine the person proceeded against under Section 342 of the Code, was held to vitiate the proceedings, but that conflict was set at rest by later decisions in which this section was held inapplicable to proceedings under S. These proceedings seem to me to be clearly criminal proceedings and I find no logical and rational basis for holding them to be civil proceedings so as to exclude the applicability of Article 134 of the Constitution. The difference between the relative scope of a civil revision and of a criminal revision is well known and revision against an order under Section 488, Cr. The children in these proceedings may, if they are so advised, even now apply to a competent Court under Section 488 for maintenance and if they make out a good claim to the satisfaction of the Court, I have nto the least doubt that suitable orders would be made in accordance with law.',
		'caseanalysis' => null,
		'casesref' => 'Kapur Singh v. Union of India;',
		'citingcases' => '',
		'counselplain' => ' O.P. Sharma, Adv',
		'counseldef' => ' Madan Bhatia, Adv.',
		'court' => 'Delhi',
		'court_type' => 'HC',
		'decidedon' => '1968-12-17',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' I.D. Dua, C.J.',
		'judgement' => '<p>1. In this application for a certificate of fitness for appeal to the Supreme Court from an order made on revision by this Court in proceedings under Section 488, Cr. P. C, a preliminary objection has been raised that Article 134(1)(c) of the Constitution is inapplicable because proceedings under Section 488 are civil proceedings and nto criminal proceedings. Reliance in support of this preliminary objection has been placed on a decision of the Supreme Court in Nand Lal Misra v. K.L. Misra, : 1960CriLJ1246 . Emphasis has been laid on the observations In this Judgment that Chapter xxxvi of the Code of Criminal Procedure is a self-contained one and the relief given under it is essentially of a civil nature. From this sentence, it is sought to be argued that the proceedings under section 488 are civil proceedings and nto criminal proceedings. Reliance has also been placed on a still more recent Judgment of the Supreme Court in Narayan Row v. Ishwar Lal, : [1965]57ITR149(SC) , in which while dealing with an appeal from an order made by the Bombay High Court under Article 226 of the Constitution, in a matter pertaining to recovery of income-tax, it was observed that the proceedings were civil proceedings within the meaning of Article 133(1)(c) of the Constitution. Reference has next been made to a Full Bench decision of the Punjab High Court in Kapur Singh v. Union of India, where also the question about the nature of proceedings under Articles 133 and 226 of the Constitution came up for discussion. In my opinion, none of these decisions throw helpful light on the question which the preliminary objection poses. Section 488 reads as under:</p><p>'488. Order for maintenance of wives and children.--(1) If any person having sufficient means neglects or refuses to maintain his wife or his legitimate or illegitimate child unable to maintain itself, the District Magistrate, a Presidency Magistrate, a Sub-Divisional Magistrate or 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, at such monthly rate, nto exceeding five hundred rupees in the whole, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate from time to time directs.</p><p> (2) Such allowance shall be payable from the date of the order, or if so ordered from the date of the application for maintenance.</p><p> (3) If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in manner hereinbefore provided for levying fines, and may sentence such person, for the whole or any part of each month's allowance remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made:</p><p> Provided that, if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if ho is satisfied that there is just ground for so doing.</p><p> If a husband has contracted marriage with another wife or keeps a mistress, it shall be considered to be just ground for his wife's refusal to live with him:</p><p> Provided, further that no warrant shall be issued for the recovery of any amount due under this direction unless application be made to the Court to levy such amount within a period of one year from the date on which it became due.</p><p> (4) No wife shall be entitled to receive an allowance from her husband under this section if she is living in adultery, or if, without any sufficient reason she refuses to live with her husband, or if they are living separately by mutual consent.</p><p> (5) On proof that any wife in whose favor an order has been made under this section is living in adultery, or that without sufficient reason she refuses to live with her husband, or that they are living separately by mutual consent, the Magistrate shall cancel the order.</p><p> (6) All evidence under this Chapter shall be taken in the presence of the husband or father, as the case may be, or, when his personal attendance is dispensed with, in the presence of his pleader, and shall be recorded in :he manner prescribed in the case of summons-cases:</p><p> Provided that if the Magistrate is satisfied that he is willfully avoiding service, or willfully neglects to attend the Court, the Magistrate may proceed to hear and determine the case ex parte. Any order so made may be set aside for good cause shown, on application made within three months from the date thereof.</p><p> (7) The Court in dealing with applications under this section shall have power to make such order as to costs as may be just.</p><p> (8) Proceedings under this section may be taken against any person in any district where he resides or is, or where he last resided with his wife or, as the case may be, the mother of the illegitimate child.' </p><p>It is obvious that it confers power to order maintenance, on District Magistrates, Presidency Magistrates, Sub-Divisional Magistrates and Magistrates of the 1st Class: Courts which are indisputably criminal Courts and nto civil Courts. Sub-section (6) provides that all evidence under this Chapter has to be taken in the presence of the husband or father, as the case may be, or when his personal attendance is dispensed with, in the presence of his pleader and it is to be recorded in the manner prescribed in the case of summons-cases. This is a further indication that the proceedings are criminal proceedings and nto civil proceedings. The argument that there is no penalty imposed by this section and the proceedings thereforee, cannto be described as 'criminal' is also unacceptable because according to Section 488(3), which provides for enforcement of orders, in certain circumstances, the person in default can be imprisoned for a term which may extend to one month or until payment, if sooner made, though I should nto be understood to hold this consideration to be conclusive on the point either way. It is obvious that the proceedings envisaged by Chapter xxxvi of the Code cannto be considered to be purely civil proceedings, though the person in default, against whom maintenance order is sought, may nto be an accused person whose examination without oath is mandatory as prescribed by Section 342 of the Code and he may be entitled to appear as a witness as well. I am aware of some conflict of judicial opinion in some old cases where on the ground that the procedure of trying maintenance applications being that of a summons case, failure to examine the person proceeded against under Section 342 of the Code, was held to vitiate the proceedings, but that conflict was set at rest by later decisions in which this section was held inapplicable to proceedings under S. 488. However, consistently all the Courts dealing with that question had assumed that the proceedings were criminal proceedings governed by the Code of Criminal Procedure, both in regard to the trial and the power of revision of the Court of the Sessions Judge and of the High Court.</p><p>2. Chapter 7-A of Vol. Iii of Rules and Orders of the Punjab High Court dealing with the maintenance cases also recites that proceedings under Section 488 of the Code of Criminal Procedure are of a criminal character and the provisions contained therein must, thereforee, be strictly followed. Keeping in view the scheme of Chapter xxxvi of the Code of Criminal Procedure and also the scheme of Articles 133 and 134 of the Constitution, I have little hesitation in holding that proceedings under Section 488, Cr. P. C., do fall within the contemplation of criminal proceedings within the meaning of Article 134. The expression 'criminal proceedings' in this Article, seems to me to be wide enough to include maintenance proceedings adjudicated upon by Magistrates initiated under Chapter xxxvI. Such maintenance proceedings are, in my view, criminal proceedings, designed by way of summary process to provide to deserted wives and neglected children, adjudication of their civil right of maintenance up to al limited amount, enforceable through criminal Courts, to avoid the notorious delays of civil proceedings, which may still be utilised for fuller relief under the general law in the ordinary civil Courts.</p><p>3. And then, what directly concerns this Court is the question of the nature of the proceedings on revision in this Court. These proceedings seem to me to be clearly criminal proceedings and I find no logical and rational basis for holding them to be civil proceedings so as to exclude the applicability of Article 134 of the Constitution. Nto only are they registered in this Court as criminal revisions but they are also presented in this Court under the Cr. P. C. and nto under the Civil P. C. The difference between the relative scope of a civil revision and of a criminal revision is well known and revision against an order under Section 488, Cr. P. C. has never been held to my knowledge to be a civil revision so as to exclude the applicability of Art. 134(1)(c) of the Constitution. The preliminary objection is, thereforee, nto easy to sustain.</p><p>4. Coming now to the merits, the learned counsel for the petitioner has very strongly argued that according to Section 488 of the Code, a separate order should have been made granting maintenance to the children. In my opinion, the question which concerns this Court in this present proceedings is nto so much as to what should have been done by the Magistrate while dealing with Section 488, Cr. P. C., but whether there is any such infirmity in the order of this Court as would justify a certificate of fitness within the contemplation of Article 134(1)(c) of the Constitution. It is nto argued, and it cannto be argued, that clause (a) or clause (b) of Article 134(1) covers this case. Clause (c) of this sub-article postulates a case in which a difficult question involving an unsettled principle requires to be finally determined by the Supreme Court. That does nto seem to be the case before me, and indeed no attempt has been made to show that there is any question of principle involved in the impugned order which requires authoritative decision by the Supreme Court. But this apart, the grant of maintenance in this case is a tentative order and it is always open to the authorities to ask for re-consideration and re-determination on account of change of circumstances. The children in these proceedings may, if they are so advised, even now apply to a competent Court under Section 488 for maintenance and if they make out a good claim to the satisfaction of the Court, I have nto the least doubt that suitable orders would be made in accordance with law. The revision on their behalf was held to be barred by time and this Court did nto consider it proper to exercise its suo motu power of revision in this regard. There is no decision on the merits against them by this Court and it has nto been shown that the impugned decision is based on any wrong principle of law which requires further examination by the Supreme Court.</p><p>5. For the foregoing reasons, this application fails and is dismissed.</p><p>6. Application dismissed.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'AIR1969Delhi298; 1969CriLJ1243; ILR1968Delhi545',
		'ratiodecidendi' => '',
		'respondent' => 'Sant Singh',
		'sub' => 'Criminal;Constitution',
		'link' => null,
		'circuit' => null
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	(int) 0 => '<p>1. In this application for a certificate of fitness for appeal to the Supreme Court from an order made on revision by this Court in proceedings under Section 488, Cr. P. C, a preliminary objection has been raised that Article 134(1)(c) of the Constitution is inapplicable because proceedings under Section 488 are civil proceedings and nto criminal proceedings. Reliance in support of this preliminary objection has been placed on a decision of the Supreme Court in Nand Lal Misra v. K.L. Misra, : 1960CriLJ1246 . Emphasis has been laid on the observations In this Judgment that Chapter xxxvi of the Code of Criminal Procedure is a self-contained one and the relief given under it is essentially of a civil nature. From this sentence, it is sought to be argued that the proceedings under section 488 are civil proceedings and nto criminal proceedings. Reliance has also been placed on a still more recent Judgment of the Supreme Court in Narayan Row v. Ishwar Lal, : [1965]57ITR149(SC) , in which while dealing with an appeal from an order made by the Bombay High Court under Article 226 of the Constitution, in a matter pertaining to recovery of income-tax, it was observed that the proceedings were civil proceedings within the meaning of Article 133(1)(c) of the Constitution. Reference has next been made to a Full Bench decision of the Punjab High Court in Kapur Singh v. Union of India, where also the question about the nature of proceedings under Articles 133 and 226 of the Constitution came up for discussion. In my opinion, none of these decisions throw helpful light on the question which the preliminary objection poses. Section 488 reads as under:',
	(int) 1 => '<p>'488. Order for maintenance of wives and children.--(1) If any person having sufficient means neglects or refuses to maintain his wife or his legitimate or illegitimate child unable to maintain itself, the District Magistrate, a Presidency Magistrate, a Sub-Divisional Magistrate or 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, at such monthly rate, nto exceeding five hundred rupees in the whole, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate from time to time directs.',
	(int) 2 => '<p> (2) Such allowance shall be payable from the date of the order, or if so ordered from the date of the application for maintenance.',
	(int) 3 => '<p> (3) If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in manner hereinbefore provided for levying fines, and may sentence such person, for the whole or any part of each month's allowance remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made:',
	(int) 4 => '<p> Provided that, if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if ho is satisfied that there is just ground for so doing.',
	(int) 5 => '<p> If a husband has contracted marriage with another wife or keeps a mistress, it shall be considered to be just ground for his wife's refusal to live with him:',
	(int) 6 => '<p> Provided, further that no warrant shall be issued for the recovery of any amount due under this direction unless application be made to the Court to levy such amount within a period of one year from the date on which it became due.',
	(int) 7 => '<p> (4) No wife shall be entitled to receive an allowance from her husband under this section if she is living in adultery, or if, without any sufficient reason she refuses to live with her husband, or if they are living separately by mutual consent.',
	(int) 8 => '<p> (5) On proof that any wife in whose favor an order has been made under this section is living in adultery, or that without sufficient reason she refuses to live with her husband, or that they are living separately by mutual consent, the Magistrate shall cancel the order.',
	(int) 9 => '<p> (6) All evidence under this Chapter shall be taken in the presence of the husband or father, as the case may be, or, when his personal attendance is dispensed with, in the presence of his pleader, and shall be recorded in :he manner prescribed in the case of summons-cases:',
	(int) 10 => '<p> Provided that if the Magistrate is satisfied that he is willfully avoiding service, or willfully neglects to attend the Court, the Magistrate may proceed to hear and determine the case ex parte. Any order so made may be set aside for good cause shown, on application made within three months from the date thereof.',
	(int) 11 => '<p> (7) The Court in dealing with applications under this section shall have power to make such order as to costs as may be just.',
	(int) 12 => '<p> (8) Proceedings under this section may be taken against any person in any district where he resides or is, or where he last resided with his wife or, as the case may be, the mother of the illegitimate child.' ',
	(int) 13 => '<p>It is obvious that it confers power to order maintenance, on District Magistrates, Presidency Magistrates, Sub-Divisional Magistrates and Magistrates of the 1st Class: Courts which are indisputably criminal Courts and nto civil Courts. Sub-section (6) provides that all evidence under this Chapter has to be taken in the presence of the husband or father, as the case may be, or when his personal attendance is dispensed with, in the presence of his pleader and it is to be recorded in the manner prescribed in the case of summons-cases. This is a further indication that the proceedings are criminal proceedings and nto civil proceedings. The argument that there is no penalty imposed by this section and the proceedings thereforee, cannto be described as 'criminal' is also unacceptable because according to Section 488(3), which provides for enforcement of orders, in certain circumstances, the person in default can be imprisoned for a term which may extend to one month or until payment, if sooner made, though I should nto be understood to hold this consideration to be conclusive on the point either way. It is obvious that the proceedings envisaged by Chapter xxxvi of the Code cannto be considered to be purely civil proceedings, though the person in default, against whom maintenance order is sought, may nto be an accused person whose examination without oath is mandatory as prescribed by Section 342 of the Code and he may be entitled to appear as a witness as well. I am aware of some conflict of judicial opinion in some old cases where on the ground that the procedure of trying maintenance applications being that of a summons case, failure to examine the person proceeded against under Section 342 of the Code, was held to vitiate the proceedings, but that conflict was set at rest by later decisions in which this section was held inapplicable to proceedings under S. 488. However, consistently all the Courts dealing with that question had assumed that the proceedings were criminal proceedings governed by the Code of Criminal Procedure, both in regard to the trial and the power of revision of the Court of the Sessions Judge and of the High Court.',
	(int) 14 => '<p>2. Chapter 7-A of Vol. Iii of Rules and Orders of the Punjab High Court dealing with the maintenance cases also recites that proceedings under Section 488 of the Code of Criminal Procedure are of a criminal character and the provisions contained therein must, thereforee, be strictly followed. Keeping in view the scheme of Chapter xxxvi of the Code of Criminal Procedure and also the scheme of Articles 133 and 134 of the Constitution, I have little hesitation in holding that proceedings under Section 488, Cr. P. C., do fall within the contemplation of criminal proceedings within the meaning of Article 134. The expression 'criminal proceedings' in this Article, seems to me to be wide enough to include maintenance proceedings adjudicated upon by Magistrates initiated under Chapter xxxvI. Such maintenance proceedings are, in my view, criminal proceedings, designed by way of summary process to provide to deserted wives and neglected children, adjudication of their civil right of maintenance up to al limited amount, enforceable through criminal Courts, to avoid the notorious delays of civil proceedings, which may still be utilised for fuller relief under the general law in the ordinary civil Courts.',
	(int) 15 => '<p>3. And then, what directly concerns this Court is the question of the nature of the proceedings on revision in this Court. These proceedings seem to me to be clearly criminal proceedings and I find no logical and rational basis for holding them to be civil proceedings so as to exclude the applicability of Article 134 of the Constitution. Nto only are they registered in this Court as criminal revisions but they are also presented in this Court under the Cr. P. C. and nto under the Civil P. C. The difference between the relative scope of a civil revision and of a criminal revision is well known and revision against an order under Section 488, Cr. P. C. has never been held to my knowledge to be a civil revision so as to exclude the applicability of Art. 134(1)(c) of the Constitution. The preliminary objection is, thereforee, nto easy to sustain.',
	(int) 16 => '<p>4. Coming now to the merits, the learned counsel for the petitioner has very strongly argued that according to Section 488 of the Code, a separate order should have been made granting maintenance to the children. In my opinion, the question which concerns this Court in this present proceedings is nto so much as to what should have been done by the Magistrate while dealing with Section 488, Cr. P. C., but whether there is any such infirmity in the order of this Court as would justify a certificate of fitness within the contemplation of Article 134(1)(c) of the Constitution. It is nto argued, and it cannto be argued, that clause (a) or clause (b) of Article 134(1) covers this case. Clause (c) of this sub-article postulates a case in which a difficult question involving an unsettled principle requires to be finally determined by the Supreme Court. That does nto seem to be the case before me, and indeed no attempt has been made to show that there is any question of principle involved in the impugned order which requires authoritative decision by the Supreme Court. But this apart, the grant of maintenance in this case is a tentative order and it is always open to the authorities to ask for re-consideration and re-determination on account of change of circumstances. The children in these proceedings may, if they are so advised, even now apply to a competent Court under Section 488 for maintenance and if they make out a good claim to the satisfaction of the Court, I have nto the least doubt that suitable orders would be made in accordance with law. The revision on their behalf was held to be barred by time and this Court did nto consider it proper to exercise its suo motu power of revision in this regard. There is no decision on the merits against them by this Court and it has nto been shown that the impugned decision is based on any wrong principle of law which requires further examination by the Supreme Court.',
	(int) 17 => '<p>5. For the foregoing reasons, this application fails and is dismissed.',
	(int) 18 => '<p>6. Application dismissed.<p>',
	(int) 19 => '<p>'
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5. For the foregoing reasons, this application fails and is dismissed.

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	'title_for_layout' => 'Harbhajan Kaur Vs Sant Singh - Citation 681173 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '681173',
			'acts' => '<a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 133, 134, 134(1) and 226; <a href="/act/133280/code-of-criminal-procedure-1898-complete-act">Code of Criminal Procedure (CrPC) , 1898</a> - Sections 342, 488, 488(3) and 488(6)',
			'appealno' => 'Criminal Misc. (SCA) No. 855 of 1968',
			'appellant' => 'Harbhajan Kaur',
			'authreffered' => '',
			'casename' => 'Harbhajan Kaur Vs. Sant Singh',
			'casenote' => ' (i) 
Criminal Procedure Code (V of 1898)- Section 488--Proceedings under--nature of--are criminal proceedings and nto Civil proceedings.; The proceedings envisaged by  Chapter xxxvI of the Code cannto be considered 
purely civil proceedings, though the person in default, against whom maintenance order is sought, may nto be an accused person, whose examination without oath is mandatory as prescribed by section 342 of the Code and he may be entitled to appear as a witness as 
well.; Chapter 7-A of Vol. III of Rules and Orders of the Punjab High Court dealing with the maintenance cases also recites that proceedings under section 488 of the Code of Criminal Procedure are of criminal character and the provisions contained therein must, thereforee, be strictly followed.; (ii) Constitution of India - Article 134--Proceedings under Section 488 within the contemplation of--expression--'Criminal proceedings'--scope of.;  That the proceedings under Section 488 Cr. P.C. do fall within the contemplation of criminal proceedings within the meaning of Article 134. 
The expression 'Criminal Proceedings' in this Article is wide enough to include maintenance proceedings adjucated upon by Magistrate initiated under Chapter xxxvI. Such maintenance proceedings are criminal proceedings designed by way of summary process to provide to deserted wives and neglected children adjudication of their civil right of maintenance up to a limited amount enforceable through criminal courts, to avoid the notorious delays of civil proceedings, which may still be utilised for fuller relief under the general law 
in the ordinary civil courts. - Section 13: [Altamas Kabir & Cyriac Joseph,JJ] Custody of child - Welfare of child vis--vis comity of Courts - The minor girl child of 3 1/2 years was brought to India by her mother. The minor girl was a citizen of U.K. being born in U.K. her parents had set up their matrimonial home in U.K. and had acquired status of permanent residents of U.K. The child with her mother was supposed to return to U.K. but the mother cancelled her tickets and remained behind in India. The husband thereupon started procededings before the High Court of Justice, Family Division. U.K. praying for an order that the minor child be made a ward of the Court and for a direction upon the wife to return the minor child to the jurisdiction of the said Court. A further direction was given for the passport and other international travel documents of the minor child to be handed over to the Solicitors of the husband. A petition seeking protection of minor child was thereupon filed by father of the husband before Delhi High Court. A direction for handing over custody of child to father of husband was also sought. The High Court considering fact that the U.K. court was already in seisin of  matter and had passed an interim order and by relying on principle of comity of Nations and Comity of Judgments of the courts of two different countries in deciding the matter directed the wife to take the child of her own to U.K.or hand it over to father of husband to be taken to U.K. as measure of interim custody and that it would be for the U.K. Court to decide the question of custody  -  Order was challenged by wife -  Held, the order of High Court was not liable to be interfered with. Although, on first impression, it would appear that the interests of the minor child would best be served if she is allowed to remain with the wife, the order of U.K. court cannot be lost sight of., The order of U.K. Court except for insisiting that the minor be returned to its jurisdiction, the English Court did not intend to separate the child from the mother until a final decision was taken with regard to the custody of the child. The ultimate decision in that regard has to be left to the English Court having regard to the nationality of the child and the fact that both the parents had worked for gain in the U.K. and had also acquired permanent resident status in the U.K. English Court has not directed that the custody of the child should be handed over to  the father but that the child should be returned to the jurisdiction of the Courts in the U.K. which would then proceed to determine as to who would be best suited to have the custody of the child. The High Court has taken into consideration both the questions relating to the Comity of Courts as well as the interest of the minor child, which, no doubt, is one of the most important considerations in matters relating to custody of a minor child.  -  Provided that, if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if ho is satisfied that there is just ground for so doing. Provided that if the Magistrate is satisfied that he is willfully avoiding service, or willfully neglects to attend the Court, the Magistrate may proceed to hear and determine the case ex parte. Any order so made may be set aside for good cause shown, on application made within three months from the date thereof. It is obvious that the proceedings envisaged by Chapter xxxvi of the Code cannto be considered to be purely civil proceedings, though the person in default, against whom maintenance order is sought, may nto be an accused person whose examination without oath is mandatory as prescribed by Section 342 of the Code and he may be entitled to appear as a witness as well. I am aware of some conflict of judicial opinion in some old cases where on the ground that the procedure of trying maintenance applications being that of a summons case, failure to examine the person proceeded against under Section 342 of the Code, was held to vitiate the proceedings, but that conflict was set at rest by later decisions in which this section was held inapplicable to proceedings under S. These proceedings seem to me to be clearly criminal proceedings and I find no logical and rational basis for holding them to be civil proceedings so as to exclude the applicability of Article 134 of the Constitution. The difference between the relative scope of a civil revision and of a criminal revision is well known and revision against an order under Section 488, Cr. The children in these proceedings may, if they are so advised, even now apply to a competent Court under Section 488 for maintenance and if they make out a good claim to the satisfaction of the Court, I have nto the least doubt that suitable orders would be made in accordance with law.',
			'caseanalysis' => null,
			'casesref' => 'Kapur Singh v. Union of India;',
			'citingcases' => '',
			'counselplain' => ' O.P. Sharma, Adv',
			'counseldef' => ' Madan Bhatia, Adv.',
			'court' => 'Delhi',
			'court_type' => 'HC',
			'decidedon' => '1968-12-17',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' I.D. Dua, C.J.',
			'judgement' => '<p style="text-align: justify;">1. In this application for a certificate of fitness for appeal to the Supreme Court from an order made on revision by this Court in proceedings under Section 488, Cr. P. C, a preliminary objection has been raised that Article 134(1)(c) of the Constitution is inapplicable because proceedings under Section 488 are civil proceedings and nto criminal proceedings. Reliance in support of this preliminary objection has been placed on a decision of the Supreme Court in Nand Lal Misra v. K.L. Misra, : 1960CriLJ1246 . Emphasis has been laid on the observations In this Judgment that Chapter xxxvi of the Code of Criminal Procedure is a self-contained one and the relief given under it is essentially of a civil nature. From this sentence, it is sought to be argued that the proceedings under section 488 are civil proceedings and nto criminal proceedings. Reliance has also been placed on a still more recent Judgment of the Supreme Court in Narayan Row v. Ishwar Lal, : [1965]57ITR149(SC) , in which while dealing with an appeal from an order made by the Bombay High Court under Article 226 of the Constitution, in a matter pertaining to recovery of income-tax, it was observed that the proceedings were civil proceedings within the meaning of Article 133(1)(c) of the Constitution. Reference has next been made to a Full Bench decision of the Punjab High Court in Kapur Singh v. Union of India, where also the question about the nature of proceedings under Articles 133 and 226 of the Constitution came up for discussion. In my opinion, none of these decisions throw helpful light on the question which the preliminary objection poses. Section 488 reads as under:</p><p style="text-align: justify;">'488. Order for maintenance of wives and children.--(1) If any person having sufficient means neglects or refuses to maintain his wife or his legitimate or illegitimate child unable to maintain itself, the District Magistrate, a Presidency Magistrate, a Sub-Divisional Magistrate or 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, at such monthly rate, nto exceeding five hundred rupees in the whole, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate from time to time directs.</p><p style="text-align: justify;"> (2) Such allowance shall be payable from the date of the order, or if so ordered from the date of the application for maintenance.</p><p style="text-align: justify;"> (3) If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in manner hereinbefore provided for levying fines, and may sentence such person, for the whole or any part of each month's allowance remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made:</p><p style="text-align: justify;"> Provided that, if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if ho is satisfied that there is just ground for so doing.</p><p style="text-align: justify;"> If a husband has contracted marriage with another wife or keeps a mistress, it shall be considered to be just ground for his wife's refusal to live with him:</p><p style="text-align: justify;"> Provided, further that no warrant shall be issued for the recovery of any amount due under this direction unless application be made to the Court to levy such amount within a period of one year from the date on which it became due.</p><p style="text-align: justify;"> (4) No wife shall be entitled to receive an allowance from her husband under this section if she is living in adultery, or if, without any sufficient reason she refuses to live with her husband, or if they are living separately by mutual consent.</p><p style="text-align: justify;"> (5) On proof that any wife in whose favor an order has been made under this section is living in adultery, or that without sufficient reason she refuses to live with her husband, or that they are living separately by mutual consent, the Magistrate shall cancel the order.</p><p style="text-align: justify;"> (6) All evidence under this Chapter shall be taken in the presence of the husband or father, as the case may be, or, when his personal attendance is dispensed with, in the presence of his pleader, and shall be recorded in :he manner prescribed in the case of summons-cases:</p><p style="text-align: justify;"> Provided that if the Magistrate is satisfied that he is willfully avoiding service, or willfully neglects to attend the Court, the Magistrate may proceed to hear and determine the case ex parte. Any order so made may be set aside for good cause shown, on application made within three months from the date thereof.</p><p style="text-align: justify;"> (7) The Court in dealing with applications under this section shall have power to make such order as to costs as may be just.</p><p style="text-align: justify;"> (8) Proceedings under this section may be taken against any person in any district where he resides or is, or where he last resided with his wife or, as the case may be, the mother of the illegitimate child.' </p><p style="text-align: justify;">It is obvious that it confers power to order maintenance, on District Magistrates, Presidency Magistrates, Sub-Divisional Magistrates and Magistrates of the 1st Class: Courts which are indisputably criminal Courts and nto civil Courts. Sub-section (6) provides that all evidence under this Chapter has to be taken in the presence of the husband or father, as the case may be, or when his personal attendance is dispensed with, in the presence of his pleader and it is to be recorded in the manner prescribed in the case of summons-cases. This is a further indication that the proceedings are criminal proceedings and nto civil proceedings. The argument that there is no penalty imposed by this section and the proceedings thereforee, cannto be described as 'criminal' is also unacceptable because according to Section 488(3), which provides for enforcement of orders, in certain circumstances, the person in default can be imprisoned for a term which may extend to one month or until payment, if sooner made, though I should nto be understood to hold this consideration to be conclusive on the point either way. It is obvious that the proceedings envisaged by Chapter xxxvi of the Code cannto be considered to be purely civil proceedings, though the person in default, against whom maintenance order is sought, may nto be an accused person whose examination without oath is mandatory as prescribed by Section 342 of the Code and he may be entitled to appear as a witness as well. I am aware of some conflict of judicial opinion in some old cases where on the ground that the procedure of trying maintenance applications being that of a summons case, failure to examine the person proceeded against under Section 342 of the Code, was held to vitiate the proceedings, but that conflict was set at rest by later decisions in which this section was held inapplicable to proceedings under S. 488. However, consistently all the Courts dealing with that question had assumed that the proceedings were criminal proceedings governed by the Code of Criminal Procedure, both in regard to the trial and the power of revision of the Court of the Sessions Judge and of the High Court.</p><p style="text-align: justify;">2. Chapter 7-A of Vol. Iii of Rules and Orders of the Punjab High Court dealing with the maintenance cases also recites that proceedings under Section 488 of the Code of Criminal Procedure are of a criminal character and the provisions contained therein must, thereforee, be strictly followed. Keeping in view the scheme of Chapter xxxvi of the Code of Criminal Procedure and also the scheme of Articles 133 and 134 of the Constitution, I have little hesitation in holding that proceedings under Section 488, Cr. P. C., do fall within the contemplation of criminal proceedings within the meaning of Article 134. The expression 'criminal proceedings' in this Article, seems to me to be wide enough to include maintenance proceedings adjudicated upon by Magistrates initiated under Chapter xxxvI. Such maintenance proceedings are, in my view, criminal proceedings, designed by way of summary process to provide to deserted wives and neglected children, adjudication of their civil right of maintenance up to al limited amount, enforceable through criminal Courts, to avoid the notorious delays of civil proceedings, which may still be utilised for fuller relief under the general law in the ordinary civil Courts.</p><p style="text-align: justify;">3. And then, what directly concerns this Court is the question of the nature of the proceedings on revision in this Court. These proceedings seem to me to be clearly criminal proceedings and I find no logical and rational basis for holding them to be civil proceedings so as to exclude the applicability of Article 134 of the Constitution. Nto only are they registered in this Court as criminal revisions but they are also presented in this Court under the Cr. P. C. and nto under the Civil P. C. The difference between the relative scope of a civil revision and of a criminal revision is well known and revision against an order under Section 488, Cr. P. C. has never been held to my knowledge to be a civil revision so as to exclude the applicability of Art. 134(1)(c) of the Constitution. The preliminary objection is, thereforee, nto easy to sustain.</p><p style="text-align: justify;">4. Coming now to the merits, the learned counsel for the petitioner has very strongly argued that according to Section 488 of the Code, a separate order should have been made granting maintenance to the children. In my opinion, the question which concerns this Court in this present proceedings is nto so much as to what should have been done by the Magistrate while dealing with Section 488, Cr. P. C., but whether there is any such infirmity in the order of this Court as would justify a certificate of fitness within the contemplation of Article 134(1)(c) of the Constitution. It is nto argued, and it cannto be argued, that clause (a) or clause (b) of Article 134(1) covers this case. Clause (c) of this sub-article postulates a case in which a difficult question involving an unsettled principle requires to be finally determined by the Supreme Court. That does nto seem to be the case before me, and indeed no attempt has been made to show that there is any question of principle involved in the impugned order which requires authoritative decision by the Supreme Court. But this apart, the grant of maintenance in this case is a tentative order and it is always open to the authorities to ask for re-consideration and re-determination on account of change of circumstances. The children in these proceedings may, if they are so advised, even now apply to a competent Court under Section 488 for maintenance and if they make out a good claim to the satisfaction of the Court, I have nto the least doubt that suitable orders would be made in accordance with law. The revision on their behalf was held to be barred by time and this Court did nto consider it proper to exercise its suo motu power of revision in this regard. There is no decision on the merits against them by this Court and it has nto been shown that the impugned decision is based on any wrong principle of law which requires further examination by the Supreme Court.</p><p style="text-align: justify;">5. For the foregoing reasons, this application fails and is dismissed.</p><p style="text-align: justify;">6. Application dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => 'AIR1969Delhi298; 1969CriLJ1243; ILR1968Delhi545',
			'ratiodecidendi' => '',
			'respondent' => 'Sant Singh',
			'sub' => 'Criminal;Constitution',
			'link' => null,
			'circuit' => null
		)
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	'casename_url' => 'harbhajan-kaur-vs-sant-singh',
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$title_for_layout = 'Harbhajan Kaur Vs Sant Singh - Citation 681173 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '681173',
		'acts' => '<a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 133, 134, 134(1) and 226; <a href="/act/133280/code-of-criminal-procedure-1898-complete-act">Code of Criminal Procedure (CrPC) , 1898</a> - Sections 342, 488, 488(3) and 488(6)',
		'appealno' => 'Criminal Misc. (SCA) No. 855 of 1968',
		'appellant' => 'Harbhajan Kaur',
		'authreffered' => '',
		'casename' => 'Harbhajan Kaur Vs. Sant Singh',
		'casenote' => ' (i) 
Criminal Procedure Code (V of 1898)- Section 488--Proceedings under--nature of--are criminal proceedings and nto Civil proceedings.; The proceedings envisaged by  Chapter xxxvI of the Code cannto be considered 
purely civil proceedings, though the person in default, against whom maintenance order is sought, may nto be an accused person, whose examination without oath is mandatory as prescribed by section 342 of the Code and he may be entitled to appear as a witness as 
well.; Chapter 7-A of Vol. III of Rules and Orders of the Punjab High Court dealing with the maintenance cases also recites that proceedings under section 488 of the Code of Criminal Procedure are of criminal character and the provisions contained therein must, thereforee, be strictly followed.; (ii) Constitution of India - Article 134--Proceedings under Section 488 within the contemplation of--expression--'Criminal proceedings'--scope of.;  That the proceedings under Section 488 Cr. P.C. do fall within the contemplation of criminal proceedings within the meaning of Article 134. 
The expression 'Criminal Proceedings' in this Article is wide enough to include maintenance proceedings adjucated upon by Magistrate initiated under Chapter xxxvI. Such maintenance proceedings are criminal proceedings designed by way of summary process to provide to deserted wives and neglected children adjudication of their civil right of maintenance up to a limited amount enforceable through criminal courts, to avoid the notorious delays of civil proceedings, which may still be utilised for fuller relief under the general law 
in the ordinary civil courts. - Section 13: [Altamas Kabir & Cyriac Joseph,JJ] Custody of child - Welfare of child vis--vis comity of Courts - The minor girl child of 3 1/2 years was brought to India by her mother. The minor girl was a citizen of U.K. being born in U.K. her parents had set up their matrimonial home in U.K. and had acquired status of permanent residents of U.K. The child with her mother was supposed to return to U.K. but the mother cancelled her tickets and remained behind in India. The husband thereupon started procededings before the High Court of Justice, Family Division. U.K. praying for an order that the minor child be made a ward of the Court and for a direction upon the wife to return the minor child to the jurisdiction of the said Court. A further direction was given for the passport and other international travel documents of the minor child to be handed over to the Solicitors of the husband. A petition seeking protection of minor child was thereupon filed by father of the husband before Delhi High Court. A direction for handing over custody of child to father of husband was also sought. The High Court considering fact that the U.K. court was already in seisin of  matter and had passed an interim order and by relying on principle of comity of Nations and Comity of Judgments of the courts of two different countries in deciding the matter directed the wife to take the child of her own to U.K.or hand it over to father of husband to be taken to U.K. as measure of interim custody and that it would be for the U.K. Court to decide the question of custody  -  Order was challenged by wife -  Held, the order of High Court was not liable to be interfered with. Although, on first impression, it would appear that the interests of the minor child would best be served if she is allowed to remain with the wife, the order of U.K. court cannot be lost sight of., The order of U.K. Court except for insisiting that the minor be returned to its jurisdiction, the English Court did not intend to separate the child from the mother until a final decision was taken with regard to the custody of the child. The ultimate decision in that regard has to be left to the English Court having regard to the nationality of the child and the fact that both the parents had worked for gain in the U.K. and had also acquired permanent resident status in the U.K. English Court has not directed that the custody of the child should be handed over to  the father but that the child should be returned to the jurisdiction of the Courts in the U.K. which would then proceed to determine as to who would be best suited to have the custody of the child. The High Court has taken into consideration both the questions relating to the Comity of Courts as well as the interest of the minor child, which, no doubt, is one of the most important considerations in matters relating to custody of a minor child.  -  Provided that, if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if ho is satisfied that there is just ground for so doing. Provided that if the Magistrate is satisfied that he is willfully avoiding service, or willfully neglects to attend the Court, the Magistrate may proceed to hear and determine the case ex parte. Any order so made may be set aside for good cause shown, on application made within three months from the date thereof. It is obvious that the proceedings envisaged by Chapter xxxvi of the Code cannto be considered to be purely civil proceedings, though the person in default, against whom maintenance order is sought, may nto be an accused person whose examination without oath is mandatory as prescribed by Section 342 of the Code and he may be entitled to appear as a witness as well. I am aware of some conflict of judicial opinion in some old cases where on the ground that the procedure of trying maintenance applications being that of a summons case, failure to examine the person proceeded against under Section 342 of the Code, was held to vitiate the proceedings, but that conflict was set at rest by later decisions in which this section was held inapplicable to proceedings under S. These proceedings seem to me to be clearly criminal proceedings and I find no logical and rational basis for holding them to be civil proceedings so as to exclude the applicability of Article 134 of the Constitution. The difference between the relative scope of a civil revision and of a criminal revision is well known and revision against an order under Section 488, Cr. The children in these proceedings may, if they are so advised, even now apply to a competent Court under Section 488 for maintenance and if they make out a good claim to the satisfaction of the Court, I have nto the least doubt that suitable orders would be made in accordance with law.',
		'caseanalysis' => null,
		'casesref' => 'Kapur Singh v. Union of India;',
		'citingcases' => '',
		'counselplain' => ' O.P. Sharma, Adv',
		'counseldef' => ' Madan Bhatia, Adv.',
		'court' => 'Delhi',
		'court_type' => 'HC',
		'decidedon' => '1968-12-17',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' I.D. Dua, C.J.',
		'judgement' => '<p>1. In this application for a certificate of fitness for appeal to the Supreme Court from an order made on revision by this Court in proceedings under Section 488, Cr. P. C, a preliminary objection has been raised that Article 134(1)(c) of the Constitution is inapplicable because proceedings under Section 488 are civil proceedings and nto criminal proceedings. Reliance in support of this preliminary objection has been placed on a decision of the Supreme Court in Nand Lal Misra v. K.L. Misra, : 1960CriLJ1246 . Emphasis has been laid on the observations In this Judgment that Chapter xxxvi of the Code of Criminal Procedure is a self-contained one and the relief given under it is essentially of a civil nature. From this sentence, it is sought to be argued that the proceedings under section 488 are civil proceedings and nto criminal proceedings. Reliance has also been placed on a still more recent Judgment of the Supreme Court in Narayan Row v. Ishwar Lal, : [1965]57ITR149(SC) , in which while dealing with an appeal from an order made by the Bombay High Court under Article 226 of the Constitution, in a matter pertaining to recovery of income-tax, it was observed that the proceedings were civil proceedings within the meaning of Article 133(1)(c) of the Constitution. Reference has next been made to a Full Bench decision of the Punjab High Court in Kapur Singh v. Union of India, where also the question about the nature of proceedings under Articles 133 and 226 of the Constitution came up for discussion. In my opinion, none of these decisions throw helpful light on the question which the preliminary objection poses. Section 488 reads as under:</p><p>'488. Order for maintenance of wives and children.--(1) If any person having sufficient means neglects or refuses to maintain his wife or his legitimate or illegitimate child unable to maintain itself, the District Magistrate, a Presidency Magistrate, a Sub-Divisional Magistrate or 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, at such monthly rate, nto exceeding five hundred rupees in the whole, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate from time to time directs.</p><p> (2) Such allowance shall be payable from the date of the order, or if so ordered from the date of the application for maintenance.</p><p> (3) If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in manner hereinbefore provided for levying fines, and may sentence such person, for the whole or any part of each month's allowance remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made:</p><p> Provided that, if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if ho is satisfied that there is just ground for so doing.</p><p> If a husband has contracted marriage with another wife or keeps a mistress, it shall be considered to be just ground for his wife's refusal to live with him:</p><p> Provided, further that no warrant shall be issued for the recovery of any amount due under this direction unless application be made to the Court to levy such amount within a period of one year from the date on which it became due.</p><p> (4) No wife shall be entitled to receive an allowance from her husband under this section if she is living in adultery, or if, without any sufficient reason she refuses to live with her husband, or if they are living separately by mutual consent.</p><p> (5) On proof that any wife in whose favor an order has been made under this section is living in adultery, or that without sufficient reason she refuses to live with her husband, or that they are living separately by mutual consent, the Magistrate shall cancel the order.</p><p> (6) All evidence under this Chapter shall be taken in the presence of the husband or father, as the case may be, or, when his personal attendance is dispensed with, in the presence of his pleader, and shall be recorded in :he manner prescribed in the case of summons-cases:</p><p> Provided that if the Magistrate is satisfied that he is willfully avoiding service, or willfully neglects to attend the Court, the Magistrate may proceed to hear and determine the case ex parte. Any order so made may be set aside for good cause shown, on application made within three months from the date thereof.</p><p> (7) The Court in dealing with applications under this section shall have power to make such order as to costs as may be just.</p><p> (8) Proceedings under this section may be taken against any person in any district where he resides or is, or where he last resided with his wife or, as the case may be, the mother of the illegitimate child.' </p><p>It is obvious that it confers power to order maintenance, on District Magistrates, Presidency Magistrates, Sub-Divisional Magistrates and Magistrates of the 1st Class: Courts which are indisputably criminal Courts and nto civil Courts. Sub-section (6) provides that all evidence under this Chapter has to be taken in the presence of the husband or father, as the case may be, or when his personal attendance is dispensed with, in the presence of his pleader and it is to be recorded in the manner prescribed in the case of summons-cases. This is a further indication that the proceedings are criminal proceedings and nto civil proceedings. The argument that there is no penalty imposed by this section and the proceedings thereforee, cannto be described as 'criminal' is also unacceptable because according to Section 488(3), which provides for enforcement of orders, in certain circumstances, the person in default can be imprisoned for a term which may extend to one month or until payment, if sooner made, though I should nto be understood to hold this consideration to be conclusive on the point either way. It is obvious that the proceedings envisaged by Chapter xxxvi of the Code cannto be considered to be purely civil proceedings, though the person in default, against whom maintenance order is sought, may nto be an accused person whose examination without oath is mandatory as prescribed by Section 342 of the Code and he may be entitled to appear as a witness as well. I am aware of some conflict of judicial opinion in some old cases where on the ground that the procedure of trying maintenance applications being that of a summons case, failure to examine the person proceeded against under Section 342 of the Code, was held to vitiate the proceedings, but that conflict was set at rest by later decisions in which this section was held inapplicable to proceedings under S. 488. However, consistently all the Courts dealing with that question had assumed that the proceedings were criminal proceedings governed by the Code of Criminal Procedure, both in regard to the trial and the power of revision of the Court of the Sessions Judge and of the High Court.</p><p>2. Chapter 7-A of Vol. Iii of Rules and Orders of the Punjab High Court dealing with the maintenance cases also recites that proceedings under Section 488 of the Code of Criminal Procedure are of a criminal character and the provisions contained therein must, thereforee, be strictly followed. Keeping in view the scheme of Chapter xxxvi of the Code of Criminal Procedure and also the scheme of Articles 133 and 134 of the Constitution, I have little hesitation in holding that proceedings under Section 488, Cr. P. C., do fall within the contemplation of criminal proceedings within the meaning of Article 134. The expression 'criminal proceedings' in this Article, seems to me to be wide enough to include maintenance proceedings adjudicated upon by Magistrates initiated under Chapter xxxvI. Such maintenance proceedings are, in my view, criminal proceedings, designed by way of summary process to provide to deserted wives and neglected children, adjudication of their civil right of maintenance up to al limited amount, enforceable through criminal Courts, to avoid the notorious delays of civil proceedings, which may still be utilised for fuller relief under the general law in the ordinary civil Courts.</p><p>3. And then, what directly concerns this Court is the question of the nature of the proceedings on revision in this Court. These proceedings seem to me to be clearly criminal proceedings and I find no logical and rational basis for holding them to be civil proceedings so as to exclude the applicability of Article 134 of the Constitution. Nto only are they registered in this Court as criminal revisions but they are also presented in this Court under the Cr. P. C. and nto under the Civil P. C. The difference between the relative scope of a civil revision and of a criminal revision is well known and revision against an order under Section 488, Cr. P. C. has never been held to my knowledge to be a civil revision so as to exclude the applicability of Art. 134(1)(c) of the Constitution. The preliminary objection is, thereforee, nto easy to sustain.</p><p>4. Coming now to the merits, the learned counsel for the petitioner has very strongly argued that according to Section 488 of the Code, a separate order should have been made granting maintenance to the children. In my opinion, the question which concerns this Court in this present proceedings is nto so much as to what should have been done by the Magistrate while dealing with Section 488, Cr. P. C., but whether there is any such infirmity in the order of this Court as would justify a certificate of fitness within the contemplation of Article 134(1)(c) of the Constitution. It is nto argued, and it cannto be argued, that clause (a) or clause (b) of Article 134(1) covers this case. Clause (c) of this sub-article postulates a case in which a difficult question involving an unsettled principle requires to be finally determined by the Supreme Court. That does nto seem to be the case before me, and indeed no attempt has been made to show that there is any question of principle involved in the impugned order which requires authoritative decision by the Supreme Court. But this apart, the grant of maintenance in this case is a tentative order and it is always open to the authorities to ask for re-consideration and re-determination on account of change of circumstances. The children in these proceedings may, if they are so advised, even now apply to a competent Court under Section 488 for maintenance and if they make out a good claim to the satisfaction of the Court, I have nto the least doubt that suitable orders would be made in accordance with law. The revision on their behalf was held to be barred by time and this Court did nto consider it proper to exercise its suo motu power of revision in this regard. There is no decision on the merits against them by this Court and it has nto been shown that the impugned decision is based on any wrong principle of law which requires further examination by the Supreme Court.</p><p>5. For the foregoing reasons, this application fails and is dismissed.</p><p>6. Application dismissed.<p></p><p>',
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		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'AIR1969Delhi298; 1969CriLJ1243; ILR1968Delhi545',
		'ratiodecidendi' => '',
		'respondent' => 'Sant Singh',
		'sub' => 'Criminal;Constitution',
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		'circuit' => null
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$content = array(
	(int) 0 => '<p>1. In this application for a certificate of fitness for appeal to the Supreme Court from an order made on revision by this Court in proceedings under Section 488, Cr. P. C, a preliminary objection has been raised that Article 134(1)(c) of the Constitution is inapplicable because proceedings under Section 488 are civil proceedings and nto criminal proceedings. Reliance in support of this preliminary objection has been placed on a decision of the Supreme Court in Nand Lal Misra v. K.L. Misra, : 1960CriLJ1246 . Emphasis has been laid on the observations In this Judgment that Chapter xxxvi of the Code of Criminal Procedure is a self-contained one and the relief given under it is essentially of a civil nature. From this sentence, it is sought to be argued that the proceedings under section 488 are civil proceedings and nto criminal proceedings. Reliance has also been placed on a still more recent Judgment of the Supreme Court in Narayan Row v. Ishwar Lal, : [1965]57ITR149(SC) , in which while dealing with an appeal from an order made by the Bombay High Court under Article 226 of the Constitution, in a matter pertaining to recovery of income-tax, it was observed that the proceedings were civil proceedings within the meaning of Article 133(1)(c) of the Constitution. Reference has next been made to a Full Bench decision of the Punjab High Court in Kapur Singh v. Union of India, where also the question about the nature of proceedings under Articles 133 and 226 of the Constitution came up for discussion. In my opinion, none of these decisions throw helpful light on the question which the preliminary objection poses. Section 488 reads as under:',
	(int) 1 => '<p>'488. Order for maintenance of wives and children.--(1) If any person having sufficient means neglects or refuses to maintain his wife or his legitimate or illegitimate child unable to maintain itself, the District Magistrate, a Presidency Magistrate, a Sub-Divisional Magistrate or 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, at such monthly rate, nto exceeding five hundred rupees in the whole, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate from time to time directs.',
	(int) 2 => '<p> (2) Such allowance shall be payable from the date of the order, or if so ordered from the date of the application for maintenance.',
	(int) 3 => '<p> (3) If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in manner hereinbefore provided for levying fines, and may sentence such person, for the whole or any part of each month's allowance remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made:',
	(int) 4 => '<p> Provided that, if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if ho is satisfied that there is just ground for so doing.',
	(int) 5 => '<p> If a husband has contracted marriage with another wife or keeps a mistress, it shall be considered to be just ground for his wife's refusal to live with him:',
	(int) 6 => '<p> Provided, further that no warrant shall be issued for the recovery of any amount due under this direction unless application be made to the Court to levy such amount within a period of one year from the date on which it became due.',
	(int) 7 => '<p> (4) No wife shall be entitled to receive an allowance from her husband under this section if she is living in adultery, or if, without any sufficient reason she refuses to live with her husband, or if they are living separately by mutual consent.',
	(int) 8 => '<p> (5) On proof that any wife in whose favor an order has been made under this section is living in adultery, or that without sufficient reason she refuses to live with her husband, or that they are living separately by mutual consent, the Magistrate shall cancel the order.',
	(int) 9 => '<p> (6) All evidence under this Chapter shall be taken in the presence of the husband or father, as the case may be, or, when his personal attendance is dispensed with, in the presence of his pleader, and shall be recorded in :he manner prescribed in the case of summons-cases:',
	(int) 10 => '<p> Provided that if the Magistrate is satisfied that he is willfully avoiding service, or willfully neglects to attend the Court, the Magistrate may proceed to hear and determine the case ex parte. Any order so made may be set aside for good cause shown, on application made within three months from the date thereof.',
	(int) 11 => '<p> (7) The Court in dealing with applications under this section shall have power to make such order as to costs as may be just.',
	(int) 12 => '<p> (8) Proceedings under this section may be taken against any person in any district where he resides or is, or where he last resided with his wife or, as the case may be, the mother of the illegitimate child.' ',
	(int) 13 => '<p>It is obvious that it confers power to order maintenance, on District Magistrates, Presidency Magistrates, Sub-Divisional Magistrates and Magistrates of the 1st Class: Courts which are indisputably criminal Courts and nto civil Courts. Sub-section (6) provides that all evidence under this Chapter has to be taken in the presence of the husband or father, as the case may be, or when his personal attendance is dispensed with, in the presence of his pleader and it is to be recorded in the manner prescribed in the case of summons-cases. This is a further indication that the proceedings are criminal proceedings and nto civil proceedings. The argument that there is no penalty imposed by this section and the proceedings thereforee, cannto be described as 'criminal' is also unacceptable because according to Section 488(3), which provides for enforcement of orders, in certain circumstances, the person in default can be imprisoned for a term which may extend to one month or until payment, if sooner made, though I should nto be understood to hold this consideration to be conclusive on the point either way. It is obvious that the proceedings envisaged by Chapter xxxvi of the Code cannto be considered to be purely civil proceedings, though the person in default, against whom maintenance order is sought, may nto be an accused person whose examination without oath is mandatory as prescribed by Section 342 of the Code and he may be entitled to appear as a witness as well. I am aware of some conflict of judicial opinion in some old cases where on the ground that the procedure of trying maintenance applications being that of a summons case, failure to examine the person proceeded against under Section 342 of the Code, was held to vitiate the proceedings, but that conflict was set at rest by later decisions in which this section was held inapplicable to proceedings under S. 488. However, consistently all the Courts dealing with that question had assumed that the proceedings were criminal proceedings governed by the Code of Criminal Procedure, both in regard to the trial and the power of revision of the Court of the Sessions Judge and of the High Court.',
	(int) 14 => '<p>2. Chapter 7-A of Vol. Iii of Rules and Orders of the Punjab High Court dealing with the maintenance cases also recites that proceedings under Section 488 of the Code of Criminal Procedure are of a criminal character and the provisions contained therein must, thereforee, be strictly followed. Keeping in view the scheme of Chapter xxxvi of the Code of Criminal Procedure and also the scheme of Articles 133 and 134 of the Constitution, I have little hesitation in holding that proceedings under Section 488, Cr. P. C., do fall within the contemplation of criminal proceedings within the meaning of Article 134. The expression 'criminal proceedings' in this Article, seems to me to be wide enough to include maintenance proceedings adjudicated upon by Magistrates initiated under Chapter xxxvI. Such maintenance proceedings are, in my view, criminal proceedings, designed by way of summary process to provide to deserted wives and neglected children, adjudication of their civil right of maintenance up to al limited amount, enforceable through criminal Courts, to avoid the notorious delays of civil proceedings, which may still be utilised for fuller relief under the general law in the ordinary civil Courts.',
	(int) 15 => '<p>3. And then, what directly concerns this Court is the question of the nature of the proceedings on revision in this Court. These proceedings seem to me to be clearly criminal proceedings and I find no logical and rational basis for holding them to be civil proceedings so as to exclude the applicability of Article 134 of the Constitution. Nto only are they registered in this Court as criminal revisions but they are also presented in this Court under the Cr. P. C. and nto under the Civil P. C. The difference between the relative scope of a civil revision and of a criminal revision is well known and revision against an order under Section 488, Cr. P. C. has never been held to my knowledge to be a civil revision so as to exclude the applicability of Art. 134(1)(c) of the Constitution. The preliminary objection is, thereforee, nto easy to sustain.',
	(int) 16 => '<p>4. Coming now to the merits, the learned counsel for the petitioner has very strongly argued that according to Section 488 of the Code, a separate order should have been made granting maintenance to the children. In my opinion, the question which concerns this Court in this present proceedings is nto so much as to what should have been done by the Magistrate while dealing with Section 488, Cr. P. C., but whether there is any such infirmity in the order of this Court as would justify a certificate of fitness within the contemplation of Article 134(1)(c) of the Constitution. It is nto argued, and it cannto be argued, that clause (a) or clause (b) of Article 134(1) covers this case. Clause (c) of this sub-article postulates a case in which a difficult question involving an unsettled principle requires to be finally determined by the Supreme Court. That does nto seem to be the case before me, and indeed no attempt has been made to show that there is any question of principle involved in the impugned order which requires authoritative decision by the Supreme Court. But this apart, the grant of maintenance in this case is a tentative order and it is always open to the authorities to ask for re-consideration and re-determination on account of change of circumstances. The children in these proceedings may, if they are so advised, even now apply to a competent Court under Section 488 for maintenance and if they make out a good claim to the satisfaction of the Court, I have nto the least doubt that suitable orders would be made in accordance with law. The revision on their behalf was held to be barred by time and this Court did nto consider it proper to exercise its suo motu power of revision in this regard. There is no decision on the merits against them by this Court and it has nto been shown that the impugned decision is based on any wrong principle of law which requires further examination by the Supreme Court.',
	(int) 17 => '<p>5. For the foregoing reasons, this application fails and is dismissed.',
	(int) 18 => '<p>6. Application dismissed.<p>',
	(int) 19 => '<p>'
)
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6. Application dismissed.

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	'title_for_layout' => 'Harbhajan Kaur Vs Sant Singh - Citation 681173 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '681173',
			'acts' => '<a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 133, 134, 134(1) and 226; <a href="/act/133280/code-of-criminal-procedure-1898-complete-act">Code of Criminal Procedure (CrPC) , 1898</a> - Sections 342, 488, 488(3) and 488(6)',
			'appealno' => 'Criminal Misc. (SCA) No. 855 of 1968',
			'appellant' => 'Harbhajan Kaur',
			'authreffered' => '',
			'casename' => 'Harbhajan Kaur Vs. Sant Singh',
			'casenote' => ' (i) 
Criminal Procedure Code (V of 1898)- Section 488--Proceedings under--nature of--are criminal proceedings and nto Civil proceedings.; The proceedings envisaged by  Chapter xxxvI of the Code cannto be considered 
purely civil proceedings, though the person in default, against whom maintenance order is sought, may nto be an accused person, whose examination without oath is mandatory as prescribed by section 342 of the Code and he may be entitled to appear as a witness as 
well.; Chapter 7-A of Vol. III of Rules and Orders of the Punjab High Court dealing with the maintenance cases also recites that proceedings under section 488 of the Code of Criminal Procedure are of criminal character and the provisions contained therein must, thereforee, be strictly followed.; (ii) Constitution of India - Article 134--Proceedings under Section 488 within the contemplation of--expression--'Criminal proceedings'--scope of.;  That the proceedings under Section 488 Cr. P.C. do fall within the contemplation of criminal proceedings within the meaning of Article 134. 
The expression 'Criminal Proceedings' in this Article is wide enough to include maintenance proceedings adjucated upon by Magistrate initiated under Chapter xxxvI. Such maintenance proceedings are criminal proceedings designed by way of summary process to provide to deserted wives and neglected children adjudication of their civil right of maintenance up to a limited amount enforceable through criminal courts, to avoid the notorious delays of civil proceedings, which may still be utilised for fuller relief under the general law 
in the ordinary civil courts. - Section 13: [Altamas Kabir & Cyriac Joseph,JJ] Custody of child - Welfare of child vis--vis comity of Courts - The minor girl child of 3 1/2 years was brought to India by her mother. The minor girl was a citizen of U.K. being born in U.K. her parents had set up their matrimonial home in U.K. and had acquired status of permanent residents of U.K. The child with her mother was supposed to return to U.K. but the mother cancelled her tickets and remained behind in India. The husband thereupon started procededings before the High Court of Justice, Family Division. U.K. praying for an order that the minor child be made a ward of the Court and for a direction upon the wife to return the minor child to the jurisdiction of the said Court. A further direction was given for the passport and other international travel documents of the minor child to be handed over to the Solicitors of the husband. A petition seeking protection of minor child was thereupon filed by father of the husband before Delhi High Court. A direction for handing over custody of child to father of husband was also sought. The High Court considering fact that the U.K. court was already in seisin of  matter and had passed an interim order and by relying on principle of comity of Nations and Comity of Judgments of the courts of two different countries in deciding the matter directed the wife to take the child of her own to U.K.or hand it over to father of husband to be taken to U.K. as measure of interim custody and that it would be for the U.K. Court to decide the question of custody  -  Order was challenged by wife -  Held, the order of High Court was not liable to be interfered with. Although, on first impression, it would appear that the interests of the minor child would best be served if she is allowed to remain with the wife, the order of U.K. court cannot be lost sight of., The order of U.K. Court except for insisiting that the minor be returned to its jurisdiction, the English Court did not intend to separate the child from the mother until a final decision was taken with regard to the custody of the child. The ultimate decision in that regard has to be left to the English Court having regard to the nationality of the child and the fact that both the parents had worked for gain in the U.K. and had also acquired permanent resident status in the U.K. English Court has not directed that the custody of the child should be handed over to  the father but that the child should be returned to the jurisdiction of the Courts in the U.K. which would then proceed to determine as to who would be best suited to have the custody of the child. The High Court has taken into consideration both the questions relating to the Comity of Courts as well as the interest of the minor child, which, no doubt, is one of the most important considerations in matters relating to custody of a minor child.  -  Provided that, if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if ho is satisfied that there is just ground for so doing. Provided that if the Magistrate is satisfied that he is willfully avoiding service, or willfully neglects to attend the Court, the Magistrate may proceed to hear and determine the case ex parte. Any order so made may be set aside for good cause shown, on application made within three months from the date thereof. It is obvious that the proceedings envisaged by Chapter xxxvi of the Code cannto be considered to be purely civil proceedings, though the person in default, against whom maintenance order is sought, may nto be an accused person whose examination without oath is mandatory as prescribed by Section 342 of the Code and he may be entitled to appear as a witness as well. I am aware of some conflict of judicial opinion in some old cases where on the ground that the procedure of trying maintenance applications being that of a summons case, failure to examine the person proceeded against under Section 342 of the Code, was held to vitiate the proceedings, but that conflict was set at rest by later decisions in which this section was held inapplicable to proceedings under S. These proceedings seem to me to be clearly criminal proceedings and I find no logical and rational basis for holding them to be civil proceedings so as to exclude the applicability of Article 134 of the Constitution. The difference between the relative scope of a civil revision and of a criminal revision is well known and revision against an order under Section 488, Cr. The children in these proceedings may, if they are so advised, even now apply to a competent Court under Section 488 for maintenance and if they make out a good claim to the satisfaction of the Court, I have nto the least doubt that suitable orders would be made in accordance with law.',
			'caseanalysis' => null,
			'casesref' => 'Kapur Singh v. Union of India;',
			'citingcases' => '',
			'counselplain' => ' O.P. Sharma, Adv',
			'counseldef' => ' Madan Bhatia, Adv.',
			'court' => 'Delhi',
			'court_type' => 'HC',
			'decidedon' => '1968-12-17',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' I.D. Dua, C.J.',
			'judgement' => '<p style="text-align: justify;">1. In this application for a certificate of fitness for appeal to the Supreme Court from an order made on revision by this Court in proceedings under Section 488, Cr. P. C, a preliminary objection has been raised that Article 134(1)(c) of the Constitution is inapplicable because proceedings under Section 488 are civil proceedings and nto criminal proceedings. Reliance in support of this preliminary objection has been placed on a decision of the Supreme Court in Nand Lal Misra v. K.L. Misra, : 1960CriLJ1246 . Emphasis has been laid on the observations In this Judgment that Chapter xxxvi of the Code of Criminal Procedure is a self-contained one and the relief given under it is essentially of a civil nature. From this sentence, it is sought to be argued that the proceedings under section 488 are civil proceedings and nto criminal proceedings. Reliance has also been placed on a still more recent Judgment of the Supreme Court in Narayan Row v. Ishwar Lal, : [1965]57ITR149(SC) , in which while dealing with an appeal from an order made by the Bombay High Court under Article 226 of the Constitution, in a matter pertaining to recovery of income-tax, it was observed that the proceedings were civil proceedings within the meaning of Article 133(1)(c) of the Constitution. Reference has next been made to a Full Bench decision of the Punjab High Court in Kapur Singh v. Union of India, where also the question about the nature of proceedings under Articles 133 and 226 of the Constitution came up for discussion. In my opinion, none of these decisions throw helpful light on the question which the preliminary objection poses. Section 488 reads as under:</p><p style="text-align: justify;">'488. Order for maintenance of wives and children.--(1) If any person having sufficient means neglects or refuses to maintain his wife or his legitimate or illegitimate child unable to maintain itself, the District Magistrate, a Presidency Magistrate, a Sub-Divisional Magistrate or 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, at such monthly rate, nto exceeding five hundred rupees in the whole, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate from time to time directs.</p><p style="text-align: justify;"> (2) Such allowance shall be payable from the date of the order, or if so ordered from the date of the application for maintenance.</p><p style="text-align: justify;"> (3) If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in manner hereinbefore provided for levying fines, and may sentence such person, for the whole or any part of each month's allowance remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made:</p><p style="text-align: justify;"> Provided that, if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if ho is satisfied that there is just ground for so doing.</p><p style="text-align: justify;"> If a husband has contracted marriage with another wife or keeps a mistress, it shall be considered to be just ground for his wife's refusal to live with him:</p><p style="text-align: justify;"> Provided, further that no warrant shall be issued for the recovery of any amount due under this direction unless application be made to the Court to levy such amount within a period of one year from the date on which it became due.</p><p style="text-align: justify;"> (4) No wife shall be entitled to receive an allowance from her husband under this section if she is living in adultery, or if, without any sufficient reason she refuses to live with her husband, or if they are living separately by mutual consent.</p><p style="text-align: justify;"> (5) On proof that any wife in whose favor an order has been made under this section is living in adultery, or that without sufficient reason she refuses to live with her husband, or that they are living separately by mutual consent, the Magistrate shall cancel the order.</p><p style="text-align: justify;"> (6) All evidence under this Chapter shall be taken in the presence of the husband or father, as the case may be, or, when his personal attendance is dispensed with, in the presence of his pleader, and shall be recorded in :he manner prescribed in the case of summons-cases:</p><p style="text-align: justify;"> Provided that if the Magistrate is satisfied that he is willfully avoiding service, or willfully neglects to attend the Court, the Magistrate may proceed to hear and determine the case ex parte. Any order so made may be set aside for good cause shown, on application made within three months from the date thereof.</p><p style="text-align: justify;"> (7) The Court in dealing with applications under this section shall have power to make such order as to costs as may be just.</p><p style="text-align: justify;"> (8) Proceedings under this section may be taken against any person in any district where he resides or is, or where he last resided with his wife or, as the case may be, the mother of the illegitimate child.' </p><p style="text-align: justify;">It is obvious that it confers power to order maintenance, on District Magistrates, Presidency Magistrates, Sub-Divisional Magistrates and Magistrates of the 1st Class: Courts which are indisputably criminal Courts and nto civil Courts. Sub-section (6) provides that all evidence under this Chapter has to be taken in the presence of the husband or father, as the case may be, or when his personal attendance is dispensed with, in the presence of his pleader and it is to be recorded in the manner prescribed in the case of summons-cases. This is a further indication that the proceedings are criminal proceedings and nto civil proceedings. The argument that there is no penalty imposed by this section and the proceedings thereforee, cannto be described as 'criminal' is also unacceptable because according to Section 488(3), which provides for enforcement of orders, in certain circumstances, the person in default can be imprisoned for a term which may extend to one month or until payment, if sooner made, though I should nto be understood to hold this consideration to be conclusive on the point either way. It is obvious that the proceedings envisaged by Chapter xxxvi of the Code cannto be considered to be purely civil proceedings, though the person in default, against whom maintenance order is sought, may nto be an accused person whose examination without oath is mandatory as prescribed by Section 342 of the Code and he may be entitled to appear as a witness as well. I am aware of some conflict of judicial opinion in some old cases where on the ground that the procedure of trying maintenance applications being that of a summons case, failure to examine the person proceeded against under Section 342 of the Code, was held to vitiate the proceedings, but that conflict was set at rest by later decisions in which this section was held inapplicable to proceedings under S. 488. However, consistently all the Courts dealing with that question had assumed that the proceedings were criminal proceedings governed by the Code of Criminal Procedure, both in regard to the trial and the power of revision of the Court of the Sessions Judge and of the High Court.</p><p style="text-align: justify;">2. Chapter 7-A of Vol. Iii of Rules and Orders of the Punjab High Court dealing with the maintenance cases also recites that proceedings under Section 488 of the Code of Criminal Procedure are of a criminal character and the provisions contained therein must, thereforee, be strictly followed. Keeping in view the scheme of Chapter xxxvi of the Code of Criminal Procedure and also the scheme of Articles 133 and 134 of the Constitution, I have little hesitation in holding that proceedings under Section 488, Cr. P. C., do fall within the contemplation of criminal proceedings within the meaning of Article 134. The expression 'criminal proceedings' in this Article, seems to me to be wide enough to include maintenance proceedings adjudicated upon by Magistrates initiated under Chapter xxxvI. Such maintenance proceedings are, in my view, criminal proceedings, designed by way of summary process to provide to deserted wives and neglected children, adjudication of their civil right of maintenance up to al limited amount, enforceable through criminal Courts, to avoid the notorious delays of civil proceedings, which may still be utilised for fuller relief under the general law in the ordinary civil Courts.</p><p style="text-align: justify;">3. And then, what directly concerns this Court is the question of the nature of the proceedings on revision in this Court. These proceedings seem to me to be clearly criminal proceedings and I find no logical and rational basis for holding them to be civil proceedings so as to exclude the applicability of Article 134 of the Constitution. Nto only are they registered in this Court as criminal revisions but they are also presented in this Court under the Cr. P. C. and nto under the Civil P. C. The difference between the relative scope of a civil revision and of a criminal revision is well known and revision against an order under Section 488, Cr. P. C. has never been held to my knowledge to be a civil revision so as to exclude the applicability of Art. 134(1)(c) of the Constitution. The preliminary objection is, thereforee, nto easy to sustain.</p><p style="text-align: justify;">4. Coming now to the merits, the learned counsel for the petitioner has very strongly argued that according to Section 488 of the Code, a separate order should have been made granting maintenance to the children. In my opinion, the question which concerns this Court in this present proceedings is nto so much as to what should have been done by the Magistrate while dealing with Section 488, Cr. P. C., but whether there is any such infirmity in the order of this Court as would justify a certificate of fitness within the contemplation of Article 134(1)(c) of the Constitution. It is nto argued, and it cannto be argued, that clause (a) or clause (b) of Article 134(1) covers this case. Clause (c) of this sub-article postulates a case in which a difficult question involving an unsettled principle requires to be finally determined by the Supreme Court. That does nto seem to be the case before me, and indeed no attempt has been made to show that there is any question of principle involved in the impugned order which requires authoritative decision by the Supreme Court. But this apart, the grant of maintenance in this case is a tentative order and it is always open to the authorities to ask for re-consideration and re-determination on account of change of circumstances. The children in these proceedings may, if they are so advised, even now apply to a competent Court under Section 488 for maintenance and if they make out a good claim to the satisfaction of the Court, I have nto the least doubt that suitable orders would be made in accordance with law. The revision on their behalf was held to be barred by time and this Court did nto consider it proper to exercise its suo motu power of revision in this regard. There is no decision on the merits against them by this Court and it has nto been shown that the impugned decision is based on any wrong principle of law which requires further examination by the Supreme Court.</p><p style="text-align: justify;">5. For the foregoing reasons, this application fails and is dismissed.</p><p style="text-align: justify;">6. Application dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => 'AIR1969Delhi298; 1969CriLJ1243; ILR1968Delhi545',
			'ratiodecidendi' => '',
			'respondent' => 'Sant Singh',
			'sub' => 'Criminal;Constitution',
			'link' => null,
			'circuit' => null
		)
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$title_for_layout = 'Harbhajan Kaur Vs Sant Singh - Citation 681173 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '681173',
		'acts' => '<a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 133, 134, 134(1) and 226; <a href="/act/133280/code-of-criminal-procedure-1898-complete-act">Code of Criminal Procedure (CrPC) , 1898</a> - Sections 342, 488, 488(3) and 488(6)',
		'appealno' => 'Criminal Misc. (SCA) No. 855 of 1968',
		'appellant' => 'Harbhajan Kaur',
		'authreffered' => '',
		'casename' => 'Harbhajan Kaur Vs. Sant Singh',
		'casenote' => ' (i) 
Criminal Procedure Code (V of 1898)- Section 488--Proceedings under--nature of--are criminal proceedings and nto Civil proceedings.; The proceedings envisaged by  Chapter xxxvI of the Code cannto be considered 
purely civil proceedings, though the person in default, against whom maintenance order is sought, may nto be an accused person, whose examination without oath is mandatory as prescribed by section 342 of the Code and he may be entitled to appear as a witness as 
well.; Chapter 7-A of Vol. III of Rules and Orders of the Punjab High Court dealing with the maintenance cases also recites that proceedings under section 488 of the Code of Criminal Procedure are of criminal character and the provisions contained therein must, thereforee, be strictly followed.; (ii) Constitution of India - Article 134--Proceedings under Section 488 within the contemplation of--expression--'Criminal proceedings'--scope of.;  That the proceedings under Section 488 Cr. P.C. do fall within the contemplation of criminal proceedings within the meaning of Article 134. 
The expression 'Criminal Proceedings' in this Article is wide enough to include maintenance proceedings adjucated upon by Magistrate initiated under Chapter xxxvI. Such maintenance proceedings are criminal proceedings designed by way of summary process to provide to deserted wives and neglected children adjudication of their civil right of maintenance up to a limited amount enforceable through criminal courts, to avoid the notorious delays of civil proceedings, which may still be utilised for fuller relief under the general law 
in the ordinary civil courts. - Section 13: [Altamas Kabir & Cyriac Joseph,JJ] Custody of child - Welfare of child vis--vis comity of Courts - The minor girl child of 3 1/2 years was brought to India by her mother. The minor girl was a citizen of U.K. being born in U.K. her parents had set up their matrimonial home in U.K. and had acquired status of permanent residents of U.K. The child with her mother was supposed to return to U.K. but the mother cancelled her tickets and remained behind in India. The husband thereupon started procededings before the High Court of Justice, Family Division. U.K. praying for an order that the minor child be made a ward of the Court and for a direction upon the wife to return the minor child to the jurisdiction of the said Court. A further direction was given for the passport and other international travel documents of the minor child to be handed over to the Solicitors of the husband. A petition seeking protection of minor child was thereupon filed by father of the husband before Delhi High Court. A direction for handing over custody of child to father of husband was also sought. The High Court considering fact that the U.K. court was already in seisin of  matter and had passed an interim order and by relying on principle of comity of Nations and Comity of Judgments of the courts of two different countries in deciding the matter directed the wife to take the child of her own to U.K.or hand it over to father of husband to be taken to U.K. as measure of interim custody and that it would be for the U.K. Court to decide the question of custody  -  Order was challenged by wife -  Held, the order of High Court was not liable to be interfered with. Although, on first impression, it would appear that the interests of the minor child would best be served if she is allowed to remain with the wife, the order of U.K. court cannot be lost sight of., The order of U.K. Court except for insisiting that the minor be returned to its jurisdiction, the English Court did not intend to separate the child from the mother until a final decision was taken with regard to the custody of the child. The ultimate decision in that regard has to be left to the English Court having regard to the nationality of the child and the fact that both the parents had worked for gain in the U.K. and had also acquired permanent resident status in the U.K. English Court has not directed that the custody of the child should be handed over to  the father but that the child should be returned to the jurisdiction of the Courts in the U.K. which would then proceed to determine as to who would be best suited to have the custody of the child. The High Court has taken into consideration both the questions relating to the Comity of Courts as well as the interest of the minor child, which, no doubt, is one of the most important considerations in matters relating to custody of a minor child.  -  Provided that, if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if ho is satisfied that there is just ground for so doing. Provided that if the Magistrate is satisfied that he is willfully avoiding service, or willfully neglects to attend the Court, the Magistrate may proceed to hear and determine the case ex parte. Any order so made may be set aside for good cause shown, on application made within three months from the date thereof. It is obvious that the proceedings envisaged by Chapter xxxvi of the Code cannto be considered to be purely civil proceedings, though the person in default, against whom maintenance order is sought, may nto be an accused person whose examination without oath is mandatory as prescribed by Section 342 of the Code and he may be entitled to appear as a witness as well. I am aware of some conflict of judicial opinion in some old cases where on the ground that the procedure of trying maintenance applications being that of a summons case, failure to examine the person proceeded against under Section 342 of the Code, was held to vitiate the proceedings, but that conflict was set at rest by later decisions in which this section was held inapplicable to proceedings under S. These proceedings seem to me to be clearly criminal proceedings and I find no logical and rational basis for holding them to be civil proceedings so as to exclude the applicability of Article 134 of the Constitution. The difference between the relative scope of a civil revision and of a criminal revision is well known and revision against an order under Section 488, Cr. The children in these proceedings may, if they are so advised, even now apply to a competent Court under Section 488 for maintenance and if they make out a good claim to the satisfaction of the Court, I have nto the least doubt that suitable orders would be made in accordance with law.',
		'caseanalysis' => null,
		'casesref' => 'Kapur Singh v. Union of India;',
		'citingcases' => '',
		'counselplain' => ' O.P. Sharma, Adv',
		'counseldef' => ' Madan Bhatia, Adv.',
		'court' => 'Delhi',
		'court_type' => 'HC',
		'decidedon' => '1968-12-17',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' I.D. Dua, C.J.',
		'judgement' => '<p>1. In this application for a certificate of fitness for appeal to the Supreme Court from an order made on revision by this Court in proceedings under Section 488, Cr. P. C, a preliminary objection has been raised that Article 134(1)(c) of the Constitution is inapplicable because proceedings under Section 488 are civil proceedings and nto criminal proceedings. Reliance in support of this preliminary objection has been placed on a decision of the Supreme Court in Nand Lal Misra v. K.L. Misra, : 1960CriLJ1246 . Emphasis has been laid on the observations In this Judgment that Chapter xxxvi of the Code of Criminal Procedure is a self-contained one and the relief given under it is essentially of a civil nature. From this sentence, it is sought to be argued that the proceedings under section 488 are civil proceedings and nto criminal proceedings. Reliance has also been placed on a still more recent Judgment of the Supreme Court in Narayan Row v. Ishwar Lal, : [1965]57ITR149(SC) , in which while dealing with an appeal from an order made by the Bombay High Court under Article 226 of the Constitution, in a matter pertaining to recovery of income-tax, it was observed that the proceedings were civil proceedings within the meaning of Article 133(1)(c) of the Constitution. Reference has next been made to a Full Bench decision of the Punjab High Court in Kapur Singh v. Union of India, where also the question about the nature of proceedings under Articles 133 and 226 of the Constitution came up for discussion. In my opinion, none of these decisions throw helpful light on the question which the preliminary objection poses. Section 488 reads as under:</p><p>'488. Order for maintenance of wives and children.--(1) If any person having sufficient means neglects or refuses to maintain his wife or his legitimate or illegitimate child unable to maintain itself, the District Magistrate, a Presidency Magistrate, a Sub-Divisional Magistrate or 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, at such monthly rate, nto exceeding five hundred rupees in the whole, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate from time to time directs.</p><p> (2) Such allowance shall be payable from the date of the order, or if so ordered from the date of the application for maintenance.</p><p> (3) If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in manner hereinbefore provided for levying fines, and may sentence such person, for the whole or any part of each month's allowance remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made:</p><p> Provided that, if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if ho is satisfied that there is just ground for so doing.</p><p> If a husband has contracted marriage with another wife or keeps a mistress, it shall be considered to be just ground for his wife's refusal to live with him:</p><p> Provided, further that no warrant shall be issued for the recovery of any amount due under this direction unless application be made to the Court to levy such amount within a period of one year from the date on which it became due.</p><p> (4) No wife shall be entitled to receive an allowance from her husband under this section if she is living in adultery, or if, without any sufficient reason she refuses to live with her husband, or if they are living separately by mutual consent.</p><p> (5) On proof that any wife in whose favor an order has been made under this section is living in adultery, or that without sufficient reason she refuses to live with her husband, or that they are living separately by mutual consent, the Magistrate shall cancel the order.</p><p> (6) All evidence under this Chapter shall be taken in the presence of the husband or father, as the case may be, or, when his personal attendance is dispensed with, in the presence of his pleader, and shall be recorded in :he manner prescribed in the case of summons-cases:</p><p> Provided that if the Magistrate is satisfied that he is willfully avoiding service, or willfully neglects to attend the Court, the Magistrate may proceed to hear and determine the case ex parte. Any order so made may be set aside for good cause shown, on application made within three months from the date thereof.</p><p> (7) The Court in dealing with applications under this section shall have power to make such order as to costs as may be just.</p><p> (8) Proceedings under this section may be taken against any person in any district where he resides or is, or where he last resided with his wife or, as the case may be, the mother of the illegitimate child.' </p><p>It is obvious that it confers power to order maintenance, on District Magistrates, Presidency Magistrates, Sub-Divisional Magistrates and Magistrates of the 1st Class: Courts which are indisputably criminal Courts and nto civil Courts. Sub-section (6) provides that all evidence under this Chapter has to be taken in the presence of the husband or father, as the case may be, or when his personal attendance is dispensed with, in the presence of his pleader and it is to be recorded in the manner prescribed in the case of summons-cases. This is a further indication that the proceedings are criminal proceedings and nto civil proceedings. The argument that there is no penalty imposed by this section and the proceedings thereforee, cannto be described as 'criminal' is also unacceptable because according to Section 488(3), which provides for enforcement of orders, in certain circumstances, the person in default can be imprisoned for a term which may extend to one month or until payment, if sooner made, though I should nto be understood to hold this consideration to be conclusive on the point either way. It is obvious that the proceedings envisaged by Chapter xxxvi of the Code cannto be considered to be purely civil proceedings, though the person in default, against whom maintenance order is sought, may nto be an accused person whose examination without oath is mandatory as prescribed by Section 342 of the Code and he may be entitled to appear as a witness as well. I am aware of some conflict of judicial opinion in some old cases where on the ground that the procedure of trying maintenance applications being that of a summons case, failure to examine the person proceeded against under Section 342 of the Code, was held to vitiate the proceedings, but that conflict was set at rest by later decisions in which this section was held inapplicable to proceedings under S. 488. However, consistently all the Courts dealing with that question had assumed that the proceedings were criminal proceedings governed by the Code of Criminal Procedure, both in regard to the trial and the power of revision of the Court of the Sessions Judge and of the High Court.</p><p>2. Chapter 7-A of Vol. Iii of Rules and Orders of the Punjab High Court dealing with the maintenance cases also recites that proceedings under Section 488 of the Code of Criminal Procedure are of a criminal character and the provisions contained therein must, thereforee, be strictly followed. Keeping in view the scheme of Chapter xxxvi of the Code of Criminal Procedure and also the scheme of Articles 133 and 134 of the Constitution, I have little hesitation in holding that proceedings under Section 488, Cr. P. C., do fall within the contemplation of criminal proceedings within the meaning of Article 134. The expression 'criminal proceedings' in this Article, seems to me to be wide enough to include maintenance proceedings adjudicated upon by Magistrates initiated under Chapter xxxvI. Such maintenance proceedings are, in my view, criminal proceedings, designed by way of summary process to provide to deserted wives and neglected children, adjudication of their civil right of maintenance up to al limited amount, enforceable through criminal Courts, to avoid the notorious delays of civil proceedings, which may still be utilised for fuller relief under the general law in the ordinary civil Courts.</p><p>3. And then, what directly concerns this Court is the question of the nature of the proceedings on revision in this Court. These proceedings seem to me to be clearly criminal proceedings and I find no logical and rational basis for holding them to be civil proceedings so as to exclude the applicability of Article 134 of the Constitution. Nto only are they registered in this Court as criminal revisions but they are also presented in this Court under the Cr. P. C. and nto under the Civil P. C. The difference between the relative scope of a civil revision and of a criminal revision is well known and revision against an order under Section 488, Cr. P. C. has never been held to my knowledge to be a civil revision so as to exclude the applicability of Art. 134(1)(c) of the Constitution. The preliminary objection is, thereforee, nto easy to sustain.</p><p>4. Coming now to the merits, the learned counsel for the petitioner has very strongly argued that according to Section 488 of the Code, a separate order should have been made granting maintenance to the children. In my opinion, the question which concerns this Court in this present proceedings is nto so much as to what should have been done by the Magistrate while dealing with Section 488, Cr. P. C., but whether there is any such infirmity in the order of this Court as would justify a certificate of fitness within the contemplation of Article 134(1)(c) of the Constitution. It is nto argued, and it cannto be argued, that clause (a) or clause (b) of Article 134(1) covers this case. Clause (c) of this sub-article postulates a case in which a difficult question involving an unsettled principle requires to be finally determined by the Supreme Court. That does nto seem to be the case before me, and indeed no attempt has been made to show that there is any question of principle involved in the impugned order which requires authoritative decision by the Supreme Court. But this apart, the grant of maintenance in this case is a tentative order and it is always open to the authorities to ask for re-consideration and re-determination on account of change of circumstances. The children in these proceedings may, if they are so advised, even now apply to a competent Court under Section 488 for maintenance and if they make out a good claim to the satisfaction of the Court, I have nto the least doubt that suitable orders would be made in accordance with law. The revision on their behalf was held to be barred by time and this Court did nto consider it proper to exercise its suo motu power of revision in this regard. There is no decision on the merits against them by this Court and it has nto been shown that the impugned decision is based on any wrong principle of law which requires further examination by the Supreme Court.</p><p>5. For the foregoing reasons, this application fails and is dismissed.</p><p>6. Application dismissed.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'AIR1969Delhi298; 1969CriLJ1243; ILR1968Delhi545',
		'ratiodecidendi' => '',
		'respondent' => 'Sant Singh',
		'sub' => 'Criminal;Constitution',
		'link' => null,
		'circuit' => null
	)
)
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	(int) 0 => '681173',
	(int) 1 => 'harbhajan-kaur-vs-sant-singh'
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$ctype = ' High Court'
$caseref = 'Kapur Singh v. Union of India<br>'
$content = array(
	(int) 0 => '<p>1. In this application for a certificate of fitness for appeal to the Supreme Court from an order made on revision by this Court in proceedings under Section 488, Cr. P. C, a preliminary objection has been raised that Article 134(1)(c) of the Constitution is inapplicable because proceedings under Section 488 are civil proceedings and nto criminal proceedings. Reliance in support of this preliminary objection has been placed on a decision of the Supreme Court in Nand Lal Misra v. K.L. Misra, : 1960CriLJ1246 . Emphasis has been laid on the observations In this Judgment that Chapter xxxvi of the Code of Criminal Procedure is a self-contained one and the relief given under it is essentially of a civil nature. From this sentence, it is sought to be argued that the proceedings under section 488 are civil proceedings and nto criminal proceedings. Reliance has also been placed on a still more recent Judgment of the Supreme Court in Narayan Row v. Ishwar Lal, : [1965]57ITR149(SC) , in which while dealing with an appeal from an order made by the Bombay High Court under Article 226 of the Constitution, in a matter pertaining to recovery of income-tax, it was observed that the proceedings were civil proceedings within the meaning of Article 133(1)(c) of the Constitution. Reference has next been made to a Full Bench decision of the Punjab High Court in Kapur Singh v. Union of India, where also the question about the nature of proceedings under Articles 133 and 226 of the Constitution came up for discussion. In my opinion, none of these decisions throw helpful light on the question which the preliminary objection poses. Section 488 reads as under:',
	(int) 1 => '<p>'488. Order for maintenance of wives and children.--(1) If any person having sufficient means neglects or refuses to maintain his wife or his legitimate or illegitimate child unable to maintain itself, the District Magistrate, a Presidency Magistrate, a Sub-Divisional Magistrate or 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, at such monthly rate, nto exceeding five hundred rupees in the whole, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate from time to time directs.',
	(int) 2 => '<p> (2) Such allowance shall be payable from the date of the order, or if so ordered from the date of the application for maintenance.',
	(int) 3 => '<p> (3) If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in manner hereinbefore provided for levying fines, and may sentence such person, for the whole or any part of each month's allowance remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made:',
	(int) 4 => '<p> Provided that, if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if ho is satisfied that there is just ground for so doing.',
	(int) 5 => '<p> If a husband has contracted marriage with another wife or keeps a mistress, it shall be considered to be just ground for his wife's refusal to live with him:',
	(int) 6 => '<p> Provided, further that no warrant shall be issued for the recovery of any amount due under this direction unless application be made to the Court to levy such amount within a period of one year from the date on which it became due.',
	(int) 7 => '<p> (4) No wife shall be entitled to receive an allowance from her husband under this section if she is living in adultery, or if, without any sufficient reason she refuses to live with her husband, or if they are living separately by mutual consent.',
	(int) 8 => '<p> (5) On proof that any wife in whose favor an order has been made under this section is living in adultery, or that without sufficient reason she refuses to live with her husband, or that they are living separately by mutual consent, the Magistrate shall cancel the order.',
	(int) 9 => '<p> (6) All evidence under this Chapter shall be taken in the presence of the husband or father, as the case may be, or, when his personal attendance is dispensed with, in the presence of his pleader, and shall be recorded in :he manner prescribed in the case of summons-cases:',
	(int) 10 => '<p> Provided that if the Magistrate is satisfied that he is willfully avoiding service, or willfully neglects to attend the Court, the Magistrate may proceed to hear and determine the case ex parte. Any order so made may be set aside for good cause shown, on application made within three months from the date thereof.',
	(int) 11 => '<p> (7) The Court in dealing with applications under this section shall have power to make such order as to costs as may be just.',
	(int) 12 => '<p> (8) Proceedings under this section may be taken against any person in any district where he resides or is, or where he last resided with his wife or, as the case may be, the mother of the illegitimate child.' ',
	(int) 13 => '<p>It is obvious that it confers power to order maintenance, on District Magistrates, Presidency Magistrates, Sub-Divisional Magistrates and Magistrates of the 1st Class: Courts which are indisputably criminal Courts and nto civil Courts. Sub-section (6) provides that all evidence under this Chapter has to be taken in the presence of the husband or father, as the case may be, or when his personal attendance is dispensed with, in the presence of his pleader and it is to be recorded in the manner prescribed in the case of summons-cases. This is a further indication that the proceedings are criminal proceedings and nto civil proceedings. The argument that there is no penalty imposed by this section and the proceedings thereforee, cannto be described as 'criminal' is also unacceptable because according to Section 488(3), which provides for enforcement of orders, in certain circumstances, the person in default can be imprisoned for a term which may extend to one month or until payment, if sooner made, though I should nto be understood to hold this consideration to be conclusive on the point either way. It is obvious that the proceedings envisaged by Chapter xxxvi of the Code cannto be considered to be purely civil proceedings, though the person in default, against whom maintenance order is sought, may nto be an accused person whose examination without oath is mandatory as prescribed by Section 342 of the Code and he may be entitled to appear as a witness as well. I am aware of some conflict of judicial opinion in some old cases where on the ground that the procedure of trying maintenance applications being that of a summons case, failure to examine the person proceeded against under Section 342 of the Code, was held to vitiate the proceedings, but that conflict was set at rest by later decisions in which this section was held inapplicable to proceedings under S. 488. However, consistently all the Courts dealing with that question had assumed that the proceedings were criminal proceedings governed by the Code of Criminal Procedure, both in regard to the trial and the power of revision of the Court of the Sessions Judge and of the High Court.',
	(int) 14 => '<p>2. Chapter 7-A of Vol. Iii of Rules and Orders of the Punjab High Court dealing with the maintenance cases also recites that proceedings under Section 488 of the Code of Criminal Procedure are of a criminal character and the provisions contained therein must, thereforee, be strictly followed. Keeping in view the scheme of Chapter xxxvi of the Code of Criminal Procedure and also the scheme of Articles 133 and 134 of the Constitution, I have little hesitation in holding that proceedings under Section 488, Cr. P. C., do fall within the contemplation of criminal proceedings within the meaning of Article 134. The expression 'criminal proceedings' in this Article, seems to me to be wide enough to include maintenance proceedings adjudicated upon by Magistrates initiated under Chapter xxxvI. Such maintenance proceedings are, in my view, criminal proceedings, designed by way of summary process to provide to deserted wives and neglected children, adjudication of their civil right of maintenance up to al limited amount, enforceable through criminal Courts, to avoid the notorious delays of civil proceedings, which may still be utilised for fuller relief under the general law in the ordinary civil Courts.',
	(int) 15 => '<p>3. And then, what directly concerns this Court is the question of the nature of the proceedings on revision in this Court. These proceedings seem to me to be clearly criminal proceedings and I find no logical and rational basis for holding them to be civil proceedings so as to exclude the applicability of Article 134 of the Constitution. Nto only are they registered in this Court as criminal revisions but they are also presented in this Court under the Cr. P. C. and nto under the Civil P. C. The difference between the relative scope of a civil revision and of a criminal revision is well known and revision against an order under Section 488, Cr. P. C. has never been held to my knowledge to be a civil revision so as to exclude the applicability of Art. 134(1)(c) of the Constitution. The preliminary objection is, thereforee, nto easy to sustain.',
	(int) 16 => '<p>4. Coming now to the merits, the learned counsel for the petitioner has very strongly argued that according to Section 488 of the Code, a separate order should have been made granting maintenance to the children. In my opinion, the question which concerns this Court in this present proceedings is nto so much as to what should have been done by the Magistrate while dealing with Section 488, Cr. P. C., but whether there is any such infirmity in the order of this Court as would justify a certificate of fitness within the contemplation of Article 134(1)(c) of the Constitution. It is nto argued, and it cannto be argued, that clause (a) or clause (b) of Article 134(1) covers this case. Clause (c) of this sub-article postulates a case in which a difficult question involving an unsettled principle requires to be finally determined by the Supreme Court. That does nto seem to be the case before me, and indeed no attempt has been made to show that there is any question of principle involved in the impugned order which requires authoritative decision by the Supreme Court. But this apart, the grant of maintenance in this case is a tentative order and it is always open to the authorities to ask for re-consideration and re-determination on account of change of circumstances. The children in these proceedings may, if they are so advised, even now apply to a competent Court under Section 488 for maintenance and if they make out a good claim to the satisfaction of the Court, I have nto the least doubt that suitable orders would be made in accordance with law. The revision on their behalf was held to be barred by time and this Court did nto consider it proper to exercise its suo motu power of revision in this regard. There is no decision on the merits against them by this Court and it has nto been shown that the impugned decision is based on any wrong principle of law which requires further examination by the Supreme Court.',
	(int) 17 => '<p>5. For the foregoing reasons, this application fails and is dismissed.',
	(int) 18 => '<p>6. Application dismissed.<p>',
	(int) 19 => '<p>'
)
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