TMI Blog2020 (2) TMI 1521X X X X Extracts X X X X X X X X Extracts X X X X ..... ect a woman for whose benefit the provisions have been engrafted. The order passed in present case by Family Court reviving the maintenance application of the wife Under Section 125 Code of Criminal Procedure by setting aside order dated 06.05.2017 passed on settlement is not hit by the embargo contained in Section 362 Code of Criminal Procedure. The submission of learned senior Counsel for the Appellant that Section 362 Code of Criminal Procedure prohibit the Magistrate to pass the order dated 05.01.2019 cannot be accepted - the High Court did not commit an error in rejecting the application filed by Appellant Under Section 482 Code of Criminal Procedure. The inherent powers of the High Court given Under Section 482 Code of Criminal Procedure are to be exercised to secure the ends of justice. Appeal dismissed - decided against appellant. - Criminal Appeal No. 286 of 2020 (Arising out of SLP (Crl.) No. 1041 of 2020) - - - Dated:- 19-2-2020 - Ashok Bhushan and R. Subhash Reddy, JJ. For the Appellant : Subodh Markandeya, Sr. Adv., Pramit Saxena, Rahul Aggarwal and Amit Pratap Singh, Advs. For the Respondents : Rishabh Jain, Adv. JUDGMENT Ashok Bhushan, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... edure 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 ₹ 75,000/- towards maintenance. Respondent No. 1 prayed that order 06.05.2017 may be recalled and application Under Section 125(3) Code of Criminal Procedure 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 Code of Criminal Procedure Challenging the order dated 05.01.2019 passed by the Family Court, the Appellant had filed application Under Section 482 Code of Criminal Procedure in the High Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 v. State of U.P., 1962 AIR 1208. In the above case when a criminal appeal came for 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 Code of Criminal Procedure, 1898 which is now Section 362 of Code of Criminal Procedure, 1973. This Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st 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 v. Smt. Dolley Mukherjee @ Smt. Chhabimukherjee and Anr. 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 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 st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r husband on the other side, would jump to impromptu devices to demolish 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 ₹ 1000 each, effective from 1-10-1997. The sum of ₹ 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 Crimina ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to notice few Rules of interpretation of statutes when court is concerned with interpretation of a social justice legislation. Section 125 Code of Criminal Procedure 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 Court had occasion to consider the interpretation of Section 125 Code of Criminal Procedure in Badshah v. Urmila Badshah Godse and Anr. (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 Code of Criminal Procedure 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, equal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, 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 intenti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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 under the second proviso shall, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly 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 Code of Criminal Procedure 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) Code of Criminal Procedure, the Magistrate may have to exercise jurisdiction from time to time. Use of expression 'from time to time' in is exercise of jurisdiction of Magistrate in a particular case. Advanced Law Lexicon by P. Ramanatha Aiyar, 3rd edition defines 'time to time' as follows: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s form today and account of maintenance of ₹ 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 ₹ 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 @ ₹ 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 Rupees, i.e. maintenance of four months after May 2017. The arrears from July, 2015 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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