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Supreme Court of India
Sanjeev Kapoor vs Chandana Kapoor on 19 February, 2020Author: Ashok Bhushan
Bench: Ashok Bhushan, K.M. Joseph
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REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOS.286 OF 2020
(ARISING OUT OF SLP(CRL.)NO.1041 OF 2020)
SANJEEV KAPOOR … APPELLANT
VERSUS
CHANDANA KAPOOR & ORS. … RESPONDENTS
J U D G M E N T
ASHOK BHUSHAN, J.
This appeal has been filed against the judgment of
the High Court of Punjab and Haryana at Chandigarh
dated 05.11.2019 in CRM-M-4663 of 2019 filed by the
appellant for setting aside the order dated 05.01.2019
passed by the Addl. Principal Judge, Family Court,
Faridabad. The High Court dismissed the petition filed
under Section 482 Cr.P.C. by the appellant.
2. Brief facts of the case necessary for deciding this
appeal are:
Signature Not Verified
Digitally signed by
ARJUN BISHT
Date: 2020.02.19
The appellant was married to respondent No.1 on
17:06:21 IST
Reason:
04.11.1998. On 17.08.199 a daughter was born and on
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18.07.2005 a son was born out of their wedlock. An
application under Section 125 Cr.P.C. was filed by
respondent No.1 on 09.07.2013 against her husband
claiming maintenance for respondent No.1 as well as
respondent Nos.2 and 3, minor daughter and son. On
14.10.2013 the appellant filed a petition for divorce
against respondent No.1. On the reconciliation efforts
made by the Family Court parties settled the matter
amicably on the terms and conditions recorded
separately in the Court. As per the settlement the
appellant was to pay Rs.25,000/- per month towards the
maintenance of the respondents with effect from July,
2015 upto April, 2017. With effect from May, 2017, the
amount of Rs.25,000/- per month was to be deposited
directly in the account of Chandana Kapoor, respondent
No.1 before 10th day of each month. The arrears were to
be paid within six months. It was further contemplated
that the appellant and respondent No.1 shall file
petition for divorce by mutual consent by incorporating
the terms and conditions. The maintenance petition was,
thus, disposed of by the Family Court by order dated
06.05.2017.
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3. The appellant from May, 2017 paid the maintenance
only for four months i.e. Rs.1,00,000/-. Respondent
No.1 filed an application in January, 2018 under
Section 125(3) Cr.P.C. for enforcement of the order
dated 06.05.2017 being Execution Petition No.240 of
2018. The Execution Petition filed by respondent No.1
was rejected by the Additional Principal Judge, Family
Court, Faridabad vide order dated 16.07.2018. The Court
held that order dated 06.05.2017 being purely
conditional and was subject to the fulfilment of the
respective obligations by the parties which they have
not performed, the application under Section 125(3)
Cr.P.C. was not maintainable.
4. After the application filed by respondent No.1 for
execution of the order was rejected, respondent No.1
filed an application for recall the order dated
06.05.2017 on 31.07.2018. Respondent No.1 stated in the
application that the appellant did not deposit the
arrears of the amount as agreed and total amount paid
by the appellant was only Rs.75,000/- towards
maintenance. Respondent No.1 prayed that order
06.05.2017 may be recalled and application under
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Section 125(3) Cr.P.C. be restored and decided on
merits after hearing the parties. The application filed
by respondent No.1 was objected by the appellant by
filing objection. In the objection, it was stated that
the appellant had made payment of some amount as per
terms since the respondent backed out, the payment was
stopped.
5. The learned Additional Principal Judge, Family
Court by order dated 05.01.2019 set aside the order
dated 06.05.2017 restoring the petition under Section
125 Cr.P.C. Challenging the order dated 05.01.2019
passed by the Family Court, the appellant had filed
application under Section 482 Cr.P.C. in the High Court
which has been rejected by the High Court by order
dated 05.11.2019. Aggrieved by the order dated
05.11.2019 of the High Court the appellant has filed
this appeal.
6. Shri Subodh Markandeya, learned senior counsel for
the appellant submits that the application under
Section 125 Cr.P.C. filed by respondent No.1 having
been finally decided by order dated 06.05.2017 by the
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learned District Judge, Family Court, Family Court had
no jurisdiction to set aside the order. The impugned
order dated 05.01.2019 is without jurisdiction and is
in the teeth of provision of Section 362 Cr.P.C.
7. It is submitted that according to the Section 362
Cr.P.C. the Court cannot alter or review the judgment
except to correct a clerical or arithmetical error. It
is submitted that order dated 05.01.2019 of the
Principal Judge, Family Court being contrary to Section
362 Cr.P.C. is void. He submits that the High Court
committed error in not setting aside the order dated
05.01.2019.
8. Learned counsel for the appellant in support of
his submission has relied on several judgments of this
Court which shall be noticed hereinafter.
9. The respondent appeared through counsel on caveat.
Learned counsel for the respondent supported the
impugned judgment of the High Court.
10. We have considered the submissions of the learned
counsel for the parties and perused the records.
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11. The only point to be determined in this appeal is
as to whether the order passed by the Additional
Principal Judge, Family Court dated 05.01.2019 setting
aside the order dated 06.05.2017 disposing of the
application under Section 125 Cr.P.C. and restoring the
application under Section 125 Cr.P.C. was contrary to
Section 362 Cr.P.C. which provides that no Court can
alter or review its judgment except for correcting a
clerical or arithmetical mistake. Section 362 Cr.P.C.
contained in Chapter XXVII “THE JUDGMENT” is to the
following effect:
“Section 362.Court not to alter judgement.-
Save as otherwise provided by this Code or
by any other law for the time being in force,
no Court, when it has signed its judgment or
final order disposing of a case, shall alter
or review the same except to correct a
clerical or arithmetical error.”
12. We may first notice the judgments which have been
relied by the learned counsel for the appellant in
support of his submission. The first judgment which has
been relied by the learned counsel for the appellant
is in Sankatha Singh vs. State of U.P., 1962 AIR 1208.
In the above case when a criminal appeal came for
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hearing before the trial court, the trial court
dismissed the appeal, noticing that the appellants have
been absent, and their counsel has not appeared to
argue the appeal. The Court also observed that it had
perused the judgment of the Magistrate and seen the
record and there is no ground for interference. An
application was filed before the Appellate Court for
restoration of the appeal which was allowed by the
learned Sessions Judge. However, when the appeal was
again listed for hearing the learned Judge took the
view that the Appellate Court had no power to review
or restore an appeal which had been disposed of. The
appeal was dismissed. The criminal revision was filed
in the High Court which too was dismissed. This Court
in the above case had occasion to consider Section 369
of Criminal Procedure Code, 1898 which is now Section
362 of Criminal Procedure Code, 1973. This Court held
that Section 369 of the Code prohibited the Courts from
reviewing or altering its judgment. Following was laid
down by this Court:
“It has been urged for the appellants that
Shri Tej Pal Singh could order the rehearing
of the appeal in the exercise of the inherent
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powers which every court possesses in order
to further the ends of justice and that Shri
Tripathi was not justified in any case to sit
in judgment over the order of Shri Tej Pal
Singh, an order passed within jurisdiction,
even though it be erroneous. Assuming that
Shri Tej Pal Singh, as Sessions Judge, could
exercise inherent powers, we are of opinion
that he could not pass the order of the
rehearing of the appeal in the exercise of
such powers when Section 369, read with
Section 424 of the Code, specifically
prohibits the altering or reviewing of its
order by a court. Inherent powers cannot be
exercised to do what the Code specifically
prohibits the court from doing. Shri Tripathi
was competent to consider when the other
party raised the objection whether the appeal
was validly up for rehearing before him. He
considered the question and decided it
rightly.
It is also urged for the appellants Shri
Tej Pal Singh had the jurisdiction to pass
orders on the application presented by the
appellants on December 17, 1956, praying for
the rehearing of the appeal and that
therefore his order could not be said to have
been absolutely without jurisdiction. We do
not agree. He certainly had jurisdiction to
dispose of the application presented to him,
but when Section 369 of the Code definitely
prohibited the court’s reviewing or altering
its judgment, he had no jurisdiction to
consider the point raised and to set aside
the order dismissing the appeal and order its
rehearing.”
13. Next judgment cited is Smt. Sooraj Devi vs. Pyare
Lal and another, AIR 1981 SC 736, where Section 362
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Cr.P.C. came for consideration. This Court laid down
following:
“The appellant points out that he invoked
the inherent power of the High Court saved
by Section 482 of the Code and that
notwithstanding the prohibition imposed by
Section 362 the High Court had power to grant
relief. Now it is well settled that the
inherent power of the court cannot be
exercised for doing that which is
specifically prohibited by the Code (Sankatha
Singh v. State of U.P.). It is true that the
prohibition in Section 362 against the court
altering or reviewing its judgment is subject
to what is “otherwise provided by this Court
or by any other law for the time being in
force”. Those words, however, refer to those
provisions only where the court has been
expressly authorised by the Code or other law
to alter or review its judgment. The inherent
power of the court is not contemplated by the
saving provision contained in Section 362
and, therefore, the attempt to invoke that
power can be of no avail.”
14. Next judgment relied is Mostt. Simrikhia vs. Smt.
Dolley Mukherjee @ Smt. Chhabimukherjee & another, AIR
1990 SC 1605, in which this Court held:
“Section 362 of the Code expressly provides
that no court when it has signed its judgment
or final order disposing of a case, shall
alter or review the same except to correct a
clerical or arithmetical error save as
otherwise provided by the Code. Section 482
enables the High Court to make such order as
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may be necessary to give effect to any order
under the Code or to prevent abuse of the
process of any court or otherwise to secure
the ends of justice. The inherent powers,
however, as much are controlled by principle
and precedent as are its express powers by
statute. If a matter is covered by an express
letter of law, the court cannot give a go-by
to the statutory provisions and instead
evolve a new provision in the garb of
inherent jurisdiction.”
15. To the same effect, is the judgment of this Court
reported in Hari Singh Mann vs. Harbhajan Singh Bajwa
& others, 2001 (1) SCC 169, which has been relied by
the appellant.
16. Next case relied is State vs. K.V. Rajendran and
others, 2008(8) SCC 673. This Court had occasion to
consider Section 362 and Section 482 Cr.P.C. In the
above case relying on the judgment of this Court in
Mostt. Simrikhia vs. Smt. Dolley Mukherjee (supra) this
Court laid down in paragraph 18:
“18. Keeping the principles, as laid down
by the aforesaid decisions of this Court in
mind, let us now look to Section 362 of the
Code, which expressly provides that no court
which has signed its judgment and final order
disposing of a case, shall alter or review
the same except to correct clerical or
arithmetical error save as otherwise provided
by the court. At this stage, the exercise of
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power under Section 482 of the Code may be
looked into.”
17. Learned counsel for the appellant has also referred
to judgment of this Court in Mahua Biswas(Smt.) vs.
Swagata Biswas and another, (1998) 2 SCC 359. In the
above case, in the proceedings under Section 125
Cr.P.C. parties compromised and started living together
but later fell apart. An objection was raised by the
husband that order of maintenance could not be revived
with which High Court agreed. This Court revived the
maintenance application by allowing the appeal. In
paragraph 3 following was held:
“3. The matter can be viewed from either
angle. It can be viewed that there was a
genuine effort by the wife to rehabilitate
herself in her matrimonial home but in vain.
The previous orders of maintenance in a
manner of speaking could at best be taken to
have been suspended but not wiped out
altogether. The other view can be that the
maintenance order stood exhausted and thus
she be left to fight a new litigation on a
fresh cause of action. Out of the two
courses, we would prefer to adopt the first
one, for if we were to resort to the second
option, it would lead to injustice. In a
given case the wife may then be reluctant to
settle with her husband lest she lose the
order of maintenance secured on his neglect
or refusal. Her husband on the other side,
would jump to impromptu devices to demolish
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the maintenance order in duping the wife to
a temporary reconciliation. Thus, in order
to do complete justice between the parties,
we would in the facts and circumstances
activate the wife’s claim to maintenance and
put her in the same position as before.
Evidently, she has obtained a maintenance
order at a figure which was taken into
account by the Court of the C.J.M. Taking
that into account, we order the husband to
pay to his wife and the daughter a sum of Rs
1000 each, effective from 1-10-1997. The sum
of Rs 12,000 which was earlier ordered by
this Court to be paid to the wife and her
daughter as arrears of maintenance shall be
taken to have been duly paid uptil 30-9-1997,
irrespective of the rate of maintenance. This
streamlines the dispute between the parties.
It is made clear that it is open to the
parties to claim such other relief as may be
due to him/her by raising a matrimonial
dispute before the matrimonial court.”
18. The Legislative Scheme as delineated by Section
369 of Code of Criminal Procedure, 1898, as well as
Legislative Scheme as delineated by Section 362 of Code
of Criminal Procedure, 1973 is one and the same. The
embargo put on the criminal court to alter or review
its judgment is with a purpose and object. The
judgments of this Court as noted above, summarised the
law to the effect that criminal justice delivery system
does not cloth criminal court with power to alter or
review the judgment or final order disposing the case
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except to correct the clerical or arithmetical error.
After the judgment delivered by a criminal Court or
passing final order disposing the case the Court
becomes functus officio and any mistake or glaring
omission is left to be corrected only by appropriate
forum in accordance with law.
19. In the present case, we are concerned with the
order passed by the Court under Section 125 Cr.P.C.
Whether the embargo contained in under Section 362
Cr.P.C. prohibiting the court to alter or review its
judgment or final order disposing the case applies to
order passed under Section 125 Cr.P.C. is the question
to be answered in the present case.
20. Section 362 Cr.P.C. begins with the word “save as
otherwise provided by this Code or by any other law for
the time being in force”. The above expression clearly
means that rigour as contained in Section 363 Cr.P.C.
is relaxed in following two conditions: –
i) Save as otherwise provided by the code of
Criminal Procedure.
ii) any other law for the time being in force.
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21. We need to first examine as to whether the orders
passed in present case are covered by the exception
i.e. “save as otherwise provided by the Code”. Section
362 Cr.P.C., thus, although put embargo on the criminal
Court to alter or review its judgment or final order
disposing the case but engrafted the exceptions as
indicated therein. The legislature was aware that there
are and may be the situations where altering or
reviewing of criminal court judgment is contemplated
in the Code itself or any other law for the time being
in force. We since in the present case are concerned
only with Section 125 Cr.P.C., we need to examine as
to whether Section 145 Cr.P.C. in any manner relaxed
the rigour of Section 362 Cr.P.C..
22. Before we proceed to look into the Legislative
Scheme of Section 125 Cr.P.C., we need to notice few
rules of interpretation of statutes when court is
concerned with interpretation of a social justice
legislation. Section 125 Cr.P.C. is a social justice
legislation which order for maintenance for wives,
children and parents. Maintenance of wives, children
and parents is a continuous obligation enforced. This
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Court had occasion to consider the interpretation of
Section 125 Cr.P.C. in Badshah versus Urmila Badshah
Godse and another, (2014) 1 SCC 188. In paragraphs 13.3
to 18, following has been laid down: –
“13.3. Thirdly, in such cases,
purposive interpretation needs to be
given to the provisions of Section 125
Cr.P.C. While dealing with the
application of a destitute wife or
hapless children or parents under this
provision, the Court is dealing with
the marginalised sections of the
society. The purpose is to achieve
“social justice” which is the
constitutional vision, enshrined in
the Preamble of the Constitution of
India. The Preamble to the
Constitution of India clearly signals
that we have chosen the democratic
path under the rule of law to achieve
the goal of securing for all its
citizens, justice, liberty, equality
and fraternity. It specifically
highlights achieving their social
justice. Therefore, it becomes the
bounden duty of the courts to advance
the cause of the social justice. While
giving interpretation to a particular
provision, the court is supposed to
bridge the gap between the law and
society.
14. Of late, in this very direction,
it is emphasised that the courts have
to adopt different approaches in
“social justice adjudication”, which
is also known as “social context
adjudication” as mere “adversarial
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approach” may not be very appropriate.
There are number of social justice
legislations giving special
protection and benefits to vulnerable
groups in the society. Prof. Madhava
Menon describes it eloquently:
“It is, therefore, respectfully
submitted that ‘social context
judging’ is essentially the
application of equality jurisprudence
as evolved by Parliament and the
Supreme Court in myriad situations
presented before courts where unequal
parties are pitted in adversarial
proceedings and where courts are
called upon to dispense equal justice.
Apart from the social-economic
inequalities accentuating the
disabilities of the poor in an unequal
fight, the adversarial process itself
operates to the disadvantage of the
weaker party. In such a situation, the
Judge has to be not only sensitive to
the inequalities of parties involved
but also positively inclined to the
weaker party if the imbalance were not
to result in miscarriage of justice.
This result is achieved by what we
call social context judging or social
justice adjudication.”
15. The provision of maintenance
would definitely fall in this category
which aims at empowering the destitute
and achieving social justice or
equality and dignity of the
individual. While dealing with cases
under this provision, drift in the
approach from “adversarial”
litigation to social context
adjudication is the need of the hour.
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16. The law regulates relationships
between people. It prescribes patterns
of behaviour. It reflects the values
of society. The role of the court is
to understand the purpose of law in
society and to help the law achieve
its purpose. But the law of a society
is a living organism. It is based on
a given factual and social reality
that is constantly changing. Sometimes
change in law precedes societal change
and is even intended to stimulate it.
In most cases, however, a change in
law is the result of a change in social
reality. Indeed, when social reality
changes, the law must change too. Just
as change in social reality is the law
of life, responsiveness to change in
social reality is the life of the law.
It can be said that the history of law
is the history of adapting the law to
society’s changing needs. In both
constitutional and statutory
interpretation, the court is supposed
to exercise discretion in determining
the proper relationship between the
subjective and objective purposes of
the law.
17. Cardozo acknowledges in his
classic
“… no system of jus scriptum has
been able to escape the need of it.”
and he elaborates:
“It is true that codes and statutes
do not render the Judge superfluous,
nor his work perfunctory and
mechanical. There are gaps to be
filled. … There are hardships and
wrongs to be mitigated if not avoided.
Interpretation is often spoken of as
if it were nothing but the search and
the discovery of a meaning which,
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however obscure and latent, had
nonetheless a real and ascertainable
pre-existence in the legislator’s
mind. The process is, indeed, that at
times, but it is often something more.
The ascertainment of intention may be
the least of a Judge’s troubles in
ascribing meaning to a statute. …
Says Gray in his lectures:
“The fact is that the difficulties
of so-called interpretation arise when
the legislature has had no meaning at
all; when the question which is raised
on the statute never occurred to it;
when what the Judges have to do is,
not to determine that the legislature
did mean on a point which was present
to its mind, but to guess what it would
have intended on a point not present
to its mind, if the point had been
present.””
18. The court as the interpreter of
law is supposed to supply omissions,
correct uncertainties, and harmonise
results with justice through a method
of free decision — libre recherché
scientifique i.e. “free scientific
research”. We are of the opinion that
there is a non-rebuttable presumption
that the legislature while making a
provision like Section 125 Cr.P.C., to
fulfil its constitutional duty in good
faith, had always intended to give
relief to the woman becoming “wife”
under such circumstances. This
approach is particularly needed while
deciding the issues relating to gender
justice. We already have examples of
exemplary efforts in this regard.
Journey from Shah Bano to Shabana Bano
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guaranteeing maintenance rights to
Muslim women is a classical example.
23. The closer look of Section 125 Cr.P.C. itself
indicates that the Court after passing judgment or
final order in the proceeding under Section 125 Cr.P.C.
does not become functus officio. The Section itself
contains express provisions where order passed under
Section 125 Cr.P.C. can be cancelled or altered which
is noticeable from Section 125(1), Section 125(5) and
Section 127 of Cr.P.C., which are to the following
effect: –
“125(1). Order for maintenance of
wives, children and parents. – (1) if
any person having sufficient means
neglects or refuses to maintain-
(a) his wife, unable to maintain
herself, or
(b) his legitimate or
illegitimate minor child,
whether married or not,
unable to maintain itself, or
(c) his legitimate or
illegitimate child (not being
a married daughter) who has
attained majority, where such
child is, by reason of any
physical or mental
abnormality or injury unable
to maintain itself, or
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(d) his father or mother, unable
to maintain himself or
herself,
a Magistrate of the first class may,
upon proof of such neglect or refusal,
order such person to make a monthly
allowance for the maintenance of his
wife or such child, father or mother,
at such monthly rate, as such
Magistrate thinks fit, and to pay the
same to such person as the Magistrate
may from time to time direct:
Provided that the Magistrate may
order the father of a minor female
child referred to in clause (b) to
make such allowance, until she attains
her majority, if the Magistrate is
satisfied that the husband of such
minor female child, if married, is not
possessed of sufficient means:
[Provided that the Magistrate
may, during the pendency of the
proceeding regarding monthly
allowance for the maintenance under
this sub-section, order such person to
make a monthly allowance for the
interim maintenance of his wife or
such child, father or mother, and the
expenses of such proceeding which the
Magistrate considers reasonable, and
to pay the same to such person as the
Magistrate may from time to time
direct:
Provided also that an application
for monthly allowance for the interim
maintenance and expenses of proceeding
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under the second proviso shall, as far
as possible, be disposed of within
sixty days from the date of the
service of notice of the application
to such person.]
Explanation. – For the purposes of
this Chapter, –
(a) “minor” means a person who,
under the provisions of the
Indian Majority Act, 1875(9
of 1875) is deemed not to have
attained his majority;
(b) “wife” includes a woman who
has been divorced by, or has
obtained a divorce from, her
husband and has not
remarried.
125(5). On proof that any wife in
whose favour 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.
127. Alteration in allowance. – [(1)
On proof of a change in the
circumstances of any person,
receiving, under section 125 a monthly
allowance for the maintenance or
interim maintenance, or ordered under
the same section to pay a monthly
allowance for the maintenance, or
interim maintenance, to his wife,
child, father or mother, as the case
may be, the Magistrate may make such
alteration, as he thinks fit, in the
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allowance for the maintenance or the
interim maintenance, as the case may
be.]
(2) Where it appears to the
Magistrate that, in consequence of any
decision of a competent Civil Court,
any order made under section 125
should be cancelled or varied, he
shall cancel the order or, as the case
may be, vary the same accordingly.
(3) Where any order has been made
under Section 125 in favour of a woman
who has been divorced by, or has
obtained a divorce from, her husband,
the Magistrate shall, if he is
satisfied that –
(a) the woman has, after the date
of such divorce, remarried,
cancel such order as from the date
of her remarriage.
(b) the woman has been divorced by
her husband and that she has
received, whether before or after
the date of the said order, the
whole of the sum which, under any
customary or personal law
applicable to the parties, was
payable on such divorce, cancel
such order –
i) in the case where such sum was
paid before such order, from
the date on which such order
was made,
ii) in any other case, from the
date of expiry of the period,
if any, for which maintenance
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has been actually paid by the
husband to the woman;
(c) the woman has obtained a
divorce from her husband and that
she had voluntarily surrendered
her rights to [maintenance or
interim maintenance, as the case
may be] after her divorce, cancel
the order from the date thereof.
(4) At the time of making any
decree for the recovery of any
maintenance or dowry by any
person, to whom [monthly
allowance for the maintenance and
interim maintenance or any of them
has been ordered] to be paid under
section 125, the Civil Court shall
take into account that sum which
has been paid to, or recovered by,
such person [as monthly allowance
for the maintenance and interim
maintenance or any of them, as the
case may be, in pursuance of] the
said.”
24. In Section 125 Cr.P.C. uses the expression used is
“as the Magistrate from time to time direct”. The use
of expression ‘from time to time’ has purpose and
meaning. It clearly contemplates that with regard to
order passed under Section 125(1) Cr.P.C., the
Magistrate may have to exercise jurisdiction from time
to time. Use of expression ‘from time to time’ in is
24
exercise of jurisdiction of Magistrate in a particular
case. Advanced Law Lexicon by P.Ramanatha Aiyar, 3rd
edition defines ‘time to time’ as follows: –
“Time to time. As occasion arises”
25. The above Legislative Scheme indicates that
Magistrate does not become functus officio after
passing an order under Section 125 Cr.P.C., as and when
occasion arises the Magistrate exercises the
jurisdiction from time to time. By Section 125(5)
Cr.P.C., Magistrate is expressly empowered to cancel
an order passed under Section 125(1) Cr.P.C. on
fulfilment of certain conditions.
26. Section 127 Cr.P.C. also discloses the legislative
intendment where the Magistrate is empowered to alter
an order passed under Section 125 Cr.P.C. Sub-Section
(2) of Section 127 Cr.P.C. also empower the Magistrate
to cancel or vary an order under Section 125. The
Legislative Scheme as delineated by Sections 125 and
127 Cr.P.C. as noted above clearly enumerated the
circumstances and incidents provided in the Code of
Criminal Procedure where Court passing a judgment or
25
final order disposing the case can alter or review the
same. The embargo as contained in Section 362 is, thus,
clearly relaxed in proceeding under Section 125 Cr.P.C.
as indicated above.
27. The submissions which have been pressed by the
learned counsel for the appellant were founded only on
embargo of Section 362 and when embargo of Section 362
is expressly relaxed in proceeding under Section 125
Cr.P.C., we are not persuaded to accept the submission
of counsel for the appellant that the Family Court was
not entitled to set aside and cancel its order dated
06.05.2017 in facts and circumstances of the present
case.
28. As noted above, the proceeding under Section 125(1)
Cr.P.C. was disposed of on a settlement entered between
the parties. The order passed by Family Court on
06.05.2017 is as follows: –
“Reconciliation efforts made in
this Chamber of the under signed.
Parties have settled the matter
amicably on the terms and conditions
recorded separately in the court
today. As per which, the
respondent/Sanjay Kapoor shall pay
Rs.25,000/- per month towards the
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maintenance of petitioner no.1 and 3
with effect from July 2015, out of
which the arrears of amount of
maintenance up to May to April 2017
shall be paid by him in the bank
account of petitioner no.1 Chandana
within six months form today and
account of maintenance of Rs.25,000/-
per month with effect from May 2017
shall be paid by him in the bank
account of Chandana month to month on
or before 10th day of each Calendar
month. The parties shall be bound by
their statement. In view of the
statement recorded in the court today,
the instant petition stands disposed
of accordingly, and respondent/Sanjay
Kapoor shall pay a sum of Rs.25000/-
per month to petitioner no.2 and 3
time to time, which shall be deposited
directly in the bank account of
Chandana. He shall clear the arrears
of amount of maintenance @ Rs.25,000/-
per month payable with effect from
July 2015 to April 2017 within six
months. In case of non-fulfilment of
commitment made by Sanjeev Kapoor, the
petitioners shall be at liberty to
proceed as per law. File, after
needful, be consigned to records.
Sd/-
Sartaj Baswana
District Judge, Family Court- II
Faridabad
UID No.HR.0487”
29. It has come on the record that after passing of
the above order on settlement, the appellant according
to his own case has paid only an amount of One Lakh
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Rupees, i.e. maintenance of four months after May 2017.
The arrears from July, 2015 to April 2017 has not been
paid by the appellant within six months which was time
allowed by the Court. When the appellant did not honour
its commitment under settlement, can the wife be left
in lurch by not able to press for grant of maintenance
on non-compliance by the appellant of the terms of
settlement. The answer is obviously ‘No’. Section 125
Cr.P.C. has to be interpreted in a manner as to advance
justice and to protect a woman for whose benefit the
provisions have been engrafted.
30. We have noticed the judgment of this Court in Mahua
Biswas (Smt)(supra) where this Court had activated the
wife’s claim of maintenance to put her at same position
before parties compromised in proceeding under Section
125 Cr.P.C. Although learned counsel for the appellant
submits that the judgment of this Court in Mahua Biswa
(Smt) is not applicable, we do not agree with the
submission. In the above case, order was passed by the
Magistrate giving maintenance of token amount against
which she moved to the High Court for revision where
it was noticed that matrimonial case between the
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parties had stood compromised and one of the terms was
that wife would go and live with her husband. The wife
went to live with husband but later the spouse fell
apart. Husband contended that the orders of maintenance
could not be revived as there had arisen a fresh cause
of action. The High Court had set aside the order of
maintenance leaving the wife to approach again the
Criminal Court for appropriate relief. This Court
allowing the appeal had activated the wife’s claim of
maintenance and put her in the same position as before.
The above judgment clearly indicates that this Court
adopted the Course which avoided injustice to the wife.
31. We, thus, are of the considered opinion that the
order passed in present case by Family Court reviving
the maintenance application of the wife under Section
125 Cr.P.C. by setting aside order dated 06.05.2017
passed on settlement is not hit by the embargo
contained in Section 362 Cr.P.C. The submission of
learned senior counsel for the appellant that Section
362 Cr.P.C. prohibit the Magistrate to pass the order
dated 05.01.2019 cannot be accepted.
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32. The High Court did not commit an error in rejecting
the application filed by appellant under Section 482
Cr.P.C. The inherent powers of the High Court given
under Section 482 Cr.P.C. are to be exercised to secure
the ends of justice. The Family Court in passing order
dated 05.01.2019 has done substantial justice in
reviving the maintenance application of the wife which
need no interference by the High Court in exercise of
its jurisdiction under Section 482 Cr.P.C.
33. We, thus, do not find any merit in this appeal.
The appeal is dismissed.
………………….J.
( ASHOK BHUSHAN )
………………….J.
( R. SUBHASH REDDY )
New Delhi,
February 19, 2020.
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