Back
1979 Supreme(Bom) 145
BOMBAY HIGH COURT (AT NAGPUR)
WAIKAR, J.
Arunkumar Surajmal Jain, Applicant
Versus
Chandanbai Rupchandsa Jain and others, Respondents
Criminal Revn. Appln. No. 24 of 1979
Decided on : 30-7-1979
V.R. Manohar for Applicant; K.H. Deshpande and A.V. Deshpande, (for No. 1) and M.A. Garud Asstt. Govt. Pleader (for No. 2) for Respondents.
The interpretation and application of Section 125, 126 (2), 399 (3), and 439 of the Code of Criminal Procedure, 1973, in the context of maintenance proceedings, revision jurisdiction of the High Court, and the concurrent jurisdiction of the Sessions Judge.
Headnote:
CRIMINAL REVISION - MAINTENANCE - SECTION 125 CR. P. C. - INTERPRETATION AND APPLICATION - PROCEDURE FOR GRANTING MAINTENANCE - PERSONAL ATTENDANCE OF PARTY - DISPENSATION WITH - SECTION 126 (2) CR. P. C. - INTERPRETATION AND APPLICATION - REVISION JURISDICTION OF HIGH COURT - RULE 14, CHAPTER XXVI, BOMBAY HIGH COURT APPELLATE SIDE RULES, 1960 - APPLICABILITY AND EFFECT - CONCURRENT JURISDICTION OF SESSIONS JUDGE - SECTION 399 (3) CR. P. C. - INTERPRETATION AND APPLICATION - FINALITY OF ORDER OF SESSIONS JUDGE - EFFECT ON REVISION JURISDICTION OF HIGH COURT - DISCRETIONARY EXERCISE OF REVISION JURISDICTION - SECTION 439 CR. P. C. - INTERPRETATION AND APPLICATION - FACTORS TO BE CONSIDERED.
Fact of the Case:
Wife filed an application under Section 125 Cr. P. C. claiming maintenance from her husband, alleging ill-treatment and refusal to accept her back after she was brought back by her brother. The husband denied the allegations and claimed that the wife was not entitled to maintenance as she had sufficient means to maintain herself.
Finding of the Court:
The Magistrate, after hearing evidence and arguments, granted maintenance to the wife at the rate of Rs. 500/- per month. The husband filed a revision application challenging the order, raising objections to the procedure followed by the Magistrate and the exercise of revisional jurisdiction by the High Court.
Issues: 1. Whether the Magistrate acted in contravention of Section 126 (2) of the Code by recording evidence in the absence of the husband without dispensing with his personal attendance? 2. Whether Rule 14, Chapter XXVI, Bombay High Court Appellate Side Rules, 1960, barring direct revision to the High Court without first approaching the Sessions Judge, is still applicable and effective? 3. Whether the concurrent jurisdiction of the Sessions Judge under Section 399 (3) of the Code ousts the revisional jurisdiction of the High Court? 4. Whether the discretionary exercise of revisional jurisdiction by the High Court is barred when the applicant is pursuing other legal remedies, such as an application to set aside the ex parte order under Section 126 (2) of the Code?
Ratio Decidendi: 1. Section 126 (2) of the Code requires that all evidence in maintenance proceedings shall be taken in the presence of the person against whom an order for payment of maintenance is proposed to be made, or when his personal attendance is dispensed with, in the presence of his pleader. The proviso to the section allows the Magistrate to proceed ex parte if the person is wilfully avoiding service or wilfully neglecting to attend the Court. 2. Rule 14, Chapter XXVI, Bombay High Court Appellate Side Rules, 1960, which barred direct revision to the High Court without first approaching the Sessions Judge, is not effete and purposeless. It is a rule of practice and policy aimed at reducing the pressure of work in the High Court, making litigation cheap, and encouraging parties to approach Courts nearer to them for redress. 3. The concurrent jurisdiction of the Sessions Judge under Section 399 (3) of the Code does not oust the revisional jurisdiction of the High Court. The order of the Sessions Judge is final only for the party who moves him, and the aggrieved party can still approach the High Court under Section 399 (3). 4. The discretionary exercise of revisional jurisdiction by the High Court is not barred when the applicant is pursuing other legal remedies, such as an application to set aside the ex parte order under Section 126 (2) of the Code. However, the High Court may consider the pendency of such other remedies and the facts and circumstances of the case in exercising its discretion.
Final Decision: The revision application was dismissed, holding that the Magistrate did not act in contravention of Section 126 (2) of the Code, that Rule 14, Chapter XXVI, Bombay High Court Appellate Side Rules, 1960, is still applicable and effective, that the concurrent jurisdiction of the Sessions Judge under Section 399 (3) of the Code does not oust the revisional jurisdiction of the High Court, and that the discretionary exercise of revisional jurisdiction by the High Court is not barred when the applicant is pursuing other legal remedies.
2. Opponent No. 1 (wife) filed the said application under Section 125 of the Code claiming herself to be the legally wedded wife of the present applicant. She alleged that she was married sometime in the month of April 1971, but within a fortnight thereafter her husband started ill-treating her and she was brought back by her brother to Malkapur. It was alleged that her husband started ill-treating her as an Ambassador car promised by her parents during marriage was not given to her husband. After she was reached back after one year in the month of Aug. 1972, her husband refused to accept her. It was also submitted that her husband had performed a second marriage with one Pushpabai and as such she was entitled to maintenance under the provisions of Section 125 of the Code.
3. The present applicant (husband) denied all these allegations. When the case was fixed for evidence on 30th Jan. 1979 this applicant was not present, but was represented by his pleader Shri Rawat. The application presented by Shri Rawat for adjournment was rejected. Shri Rawat, however, cross-examined all the witnesses examined by non-applicant No. 1. After hearing arguments on 31st Jan. 1979 the learned Magistrate announced the impugned order.
4. Shri K. H. Deshpande, the learned counsel for non-applicant No. 1 (wife), raised two preliminary objections, (1) In view of R. 14, Chap. XXVI, of the Bombay High Court Appellate Side Rules, 1960, which has neither been amended, nor deleted even after coming into force of the Code, in the absence of special circumstances, the High Court could not entertain this application, when an application could have been made before the Sessions. Court, and (2) An application has already been filed under Section 126 (2) of the Code by the present applicant before the Judicial Magistrate, First Class, for setting aside the impugned order treating the same as an ex parte order and the same is pending consideration. Since the present applicant is already pursuing his other legal remedies, this Court need not exercise its revisional jurisdiction, particularly in view of the facts and circumstances of the present case.
5. Rule 14 of Chap. XXVI of the Bombay High Court Appellate Side Rules, 1960 is as under :
"14. In the absence of special circumstances the High Court will not entertain an application for a revision where an application for revision might have, but has not been made to a lower revisional Court".
6. Shri Manohar, the learned counsel for the applicant, relied upon State of Gujarat v. Pyarekhan (1967 Cri LJ 1229 (Guj)) where in respect of this very rule, that is, R. 14 of Chap. XXVI of the Bombay High Court Appellate Side Rules, 1960, Raju J. had observed that this rule is only a statement of policy of the High Court. There can be no quarrel with this proposition. The practice envisaged by this rule did not oust the jurisdiction of the High Court to entertain a revision. If an application was made directly to the High Court and the rule was issued, it could not be dismissed on the ground that no application has been made to the Sessions Court. A departure from this rule of practice never constituted any illegality. In the instant case also since a rule has already been issued by this Court in the matter and the same was set down for hearing it cannot be dismissed only on the ground that the said rule has not been observed.
7. It may, however, be considered whether the said rule, which still exists and has not been amended or deleted after coming into force of the Code, is now otiose and obsolete. Such a rule of practice of first moving the Sessions Judge b
