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IN THE HIGH COURT OF BOMBAY
(AURANGABAD BENCH)
Salve V.P., J.
Vithalrao Damodhar Salve....Petitioner.
Versus
Savitrabai Vithalrao Salve others....Respondents.
Criminal Application No. 373 of 1984, decided on 23-6-1986.
Advocates appeared :
Vilas Dhordepatil, for petitioner.
Sudhakar A. Deshmukh, for respondent Nos. 1 to 3.
B.B. Jadhav, A.P.P., for State.
It is no more Res Integra that the proceedings under Section 125 Criminal Procedure Code are of a quasi civil nature i. e. they are not of a criminal nature in which there is conviction or acquittal of the non-applicant nor is it of a civil nature where there have to be specific pleadings, issues raised and issues decided. But it is a speedy remedy available to women and children, who are likely to be rendered destitutes and lead a vagrant life, to enable them to maintain themselves by claiming maintenance from their husbands and fathers. With the change of law, we see that Section 125 has brought in many more beneficiaries under it.
The beneficiaries now who can receive maintenance allowance are the Wife, who is unable to maintain herself: legitimate minor child, whether married or not, unable to maintain itself: legitimate or illegitimate child (not being a married daughter) who has attained majority, where such is, by reason of any physical or mental abnormality or injury unable to maintain itself; and father or mother, unable to maintain himself or herself. This list, brought in by an independent legislation showing more beneficiaries included for protection under Section 125 clearly shows that the Legislature intended to extend the protection of Section 125 liberally to more persons than one. The object of this section formerly used to be prevent the vagrancy of deserted women who out of destitution may take to vagrancy. Whether or not legitimate or illegitimate, minor children, without any maintenance to them, would turn out to be vagrant is left to ones own imagination. In these difficult days, maintenance of children and their education and development as, useful citizens is a social problem which perhaps may not be solved by enacting a beneficial legislation under Section 125.
The social ethos and the present day struggle for existence is so acute that the children, finding themselves at bay in spite of the fact that they are provided maintenance which is negligible, say at the rate of Rs. 40/-or Rs. 50/- p. m., may take to vagrancy, though the laudable object of the section is to prevent vagrancy of women and also the children. So far as the father and mother are concerned, the possibility that they will lead a vagrant life cannot be visualised because they have reached an age and stage where vagrancy cannot come so easily. Therefore, the original objective of preventing destitute women from vagrancy appears also to have undergone a change when this list of beneficiaries under Section 125 was increased and included also the father and mother. But the fact remains that this help whatever small it may mean, will always help the wives, the children, the father and the mother from persons who are required to maintain them as a moral responsibility of the society. In the absence of any such moral, social and legal binding, the rigour of the Section 125 may suffer badly. It is under these aspects of the practical life that I wish to interpret the question of jurisdiction of deciding the application under Section 125 Criminal Procedure Code, either by way of second application or by way of an application for enhancement of the maintenance already granted. No doubt, the case decided by Kambli J. is a case decided on the general principles of res judicata but it is not a good law, since I find that the judgment has been arrived at perhaps per incurium since the two judgments of the Supreme Court decided earlier, have not been brought to the notice of the learned Judge.
The language of Section 125 is such that no formal application is contemplated, but only proof of neglect or refusal has to be given before the Magistrate. Two things, therefore, arise-(1) that he must be a Magistrate of the first class and (2) that he must be a Magistrate where any of the beneficiaries should conveniently file an application. Now, let us take an example that the father and mother are residing in Aurangabad and the son from whom they want to claim maintenance resides in remote part of Punjab. Will the father and mother who do not have money for their own maintenance be required to travel to Punjab and file the case before a Magistrate of first class in Punjab? The answer must, obviously, be in the negative. Therefore just as the law has made a change by bringing in sub-clause (b), the forum where his wife resides as a convenient forum for the wife, we may have to read in it at the same breath, "where his father and mother reside." It is obvious that the Magistrate intended is one to give relief to the beneficiaries mentioned in Section 125 and harassment is not intended. If the beneficiaries mentioned in Section 125 are required to hunt the person from whom they have to claim maintenance, who may himself be shifting from place to place for service or any other count, it would mean more harassment than a relief to them.
Held, that, the convenient place for filing an application under Section 125, whether it is first, or second or third application, or whether it is an application for enhancement under Section 127, should be regarded as the proper forum and a Magistrate referred to in Section 125 as also the Magistrate referred to in Section 127 (1) and must refer to that Magistrate before whom all, or any of the beneficiaries can conveniently life the application. The territorial jurisdiction of Magistrate so far as Section 125 is concerned, cannot he restricted to the convenience of the person against whom an order is claimed, but it must be given a liberal interpretation, of course not causing any violence to the language and must mean any convenient forum approachable by any of the beneficiaries mentioned in Section 125.
2. It is contended by Mr. Vilas Dhordepatil, the learned Counsel for the petitioner, that the matter was compromised and the respondent No. 1 was granted Rs. 40/- and respondents Nos. 2 and 3 Rs. 30/- each, in all Rs. 100/- for their monthly maintenance. As per the compromise, this amount was being paid by the petitioner to the respondents every month uptodate. An application came to be filed by the present respondents (respondents 1 to 3) through respondent No. 1, the wife of the petitioner claimed enhanced maintenance at the rate of Rs. 125/- p.m. for herself and Rs. 100/- each for the two children i.e. respondents 2 and 3. The J.M.F.C., Aurangabad after notice to the husband and after giving him opportunity of being heard, granted enhanced maintenance at the rate of Rs. 325/- jointly to all the respondents from the date of petition i.e. from 21-12-1983. It is this order of the Judicial Magistrate, First Class, Aurangabad dated 21-12-1983 which has been challenged before me.
3. The main ground of attack by the learned Counsel for the petitioner is that the order is without jurisdiction. That the J.M.F.C., Aurangabad had no jurisdiction to pass the said order. That the jurisdiction lay with the original Court i.e. the J.M.F.C., Shrirampur and that the Shrirampur Court had exercised the territorial jurisdiction where an application was filed when the petitioner was residing at Shrirampur when the original order came to be passed. In 1981, he had shifted to Bombay to join service in the Indian Air Lines as Wireless Operator. His salary, according to the learned Counsel is Rs. 1100/-. It is, therefore, apparent that the quantum of maintenance of Rs. 325/- granted to the three respondents cannot be challenged on any ground since the petitioner is now well placed and is being paid well. In these days of inflation and rising prices, an amount of Rs. 25/- p.m. towards maintenance of the wife and two children cannot be regarded as high. The quantum of maintenance is challenged by the learned Counsel, but it must fail for the reasons stated by me earlier.
4. Mr. Vilas Dhordepatil, the learned Counsel for the petitioner, has relied upon the decision of this Court reported in 1979 Bom.C.R. 249 (Vithalrao Marotrao Awadhut v. Ratnaprabha Awadhut and others)1, decided by M.D. Kambil, J. According to the learned Counsel, the application under section 127 Criminal Procedure Code for enhancement in terms is a sequel to the application under section 125 Criminal Procedure Code and as such, the forum chosen must be the same as can be chosen by the person who wants the benefit of section 127 in the same Court where the original application under section 125 was filed. Relying heavily on the decision of this Court in Vithalrao's case, Mr. Vilas Dhordepatil argued that the principles of res judicata would apply to the present application under section 127 and the Aurangabad Court will have no jurisdiction to entertain that application.
5. Mr. Jadhav, the learned A.P.P., appearing for the State, has rightly pointed out that the facts of Vithalrao's case are absolutely different and the principles of res judicata would not apply to the instant case. According to him, the present application was filed under section 127 Criminal Procedure Code for the enhancement of the maintenance amount and not for grant of maintenance once again under section 125 as was in the case of Vithalrao v. Ratnaphabha. To my mind, Mr. Jadhav's contention is right.
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