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High Court Of Delhi
MUKHDUM ALI - Appellant
Versus
NARGIS BANO - Respondent
Criminal Miscellaneous (Main) 186 of 1982
Decided On : 10/07/1982
Facts-
The Petitioner/husband has remarried whereas respondent/wife has not married. Now the petitioner and the respondent are divorced. The Respondent/wife made a petition for maintenance of herself and of the minor child aged 4 years.
Procedural facts-
The Trial Magistrate ordered on 6-5-1981 and directed the husband to pay 300/- per month to the wife and Rs. 200/- per month to the child from date of the order.
The Additional Sessions Judge dismissed the revision application of the petitioner/husband.
In Misc. Application under section 482 Criminal Procedure Code by the husband, in the High Court the following questions arose:
Questions-
1. Whether opportunity was not given to the petitioner for hearing before the trial Magistrate?
2. Whether remedy for setting aside ex parte order lay under section 126(2) or under section 397 Criminal Procedure Code by way of application to the Court itself or by way of revision in Sessions Court? - Whether Scope of section 482 is open in such a case? (No).
3. Whether maintenance should be allowed in the circumstances of the case from the date of the order or from the date of the application?
Decision-
The High Court dismissed the application under section 482 Criminal Procedure Code but allowed the application of the wife and ordered maintenance to be paid from the date of the application and not from the date of order. To this extent the judgment was modified.
Reasons-
1. There are two outstanding facts in this case. One is that the husband was proceeded ex parte on 20th September, 1980 and this ex parte order stood against him throughout. It was never set aside. The two applications which he made he did not prosecute. The proceedings show that on some hearings he appeared and on some hearings he appeared and on some hearings he absented himself. This question was argued before Sessions Court. The husband's Counsel there "conceded that Makdoom Ali was rightly proceeded ex parte and application seeking to set aside the ex parte order was rightly dismissed by the learned trial court on 4-4-81. The Additional Sessions Judge held that the husband had absented himself on more than 10 dates and in view of the order of ex parte dated 20th September, 1980 the trial court was not bound to give to the husband an opportunity to lead any evidence in rebuttal as he had been proceeded ex parte and did not seek to set aside that ex parte order. The record of the case amply justified the conclusion arrived at by the Additional Sessions Judge.
2. Secondly, the important thing in this case is that the husband did not make any application to the trial magistrate for setting aside the ex parte proceedings. He straight way went in revision to the sessions under section 397. Now it is well-settled that if the party does not follow the remedy provided by the Code the power under section 482 is not to be resorted to because there is a specific provision in the Code for redress of the grievance of the aggrieved party. Power under section 482 has to be exercised sparingly to prevent abuse of process of any court or otherwise to secure the ends of justice.
3. There ought to be compelling reasons before the wife is deprived of maintenance from the date of the application. No such reasons have been given by any of the two courts. I, therefore direct that maintenance allowance as fixed by the metropolitan Magistrate shall be paid from the date of the application, i.e., 14-12-1978.
( 1 ) THIS is a petition under section 482 of the Code of Criminal Procedure by the husband, Makdoom Ali, seeking to set aside the order dated 30th September, 1981 made by the Additional Sessions Judge as well as the order dated 6. 5. 1981 of the Metropolitan Magistrate.
( 2 ) THE petitioner, Makdoom Ali was the husband. Nargis Bano, respondent No. I was his wife. Now they are divorced. The husband has remarried. The wife has not. For the purposes of this case wife "includes a woman who has been divorced by or has obtained a divorce from her husband and has not married. " (Section 125 Gr. P. C. explanation C ). Asim Ali, respondent No. 2, is a child of the marriage. He is a boy nearly of four years of age.
( 3 ) THE wife made a petition to the Metropolitan Magistrate on 14th December, 1978 under section 125, Criminal Procedure Code. alleging that the husband had turned her out of the house on 10. 9. 1978 and that he was refusing and neglecting to maintain her and the child.
( 4 ) THE husband appeared before the metropolitan magistrate and then absented himself. On the evidence lead by the wife the magistrate was satisfied that the husband was neglecting to maintain the wife and the child. He was also satisfied that the husband was a man of means. He, therefore, by order dated 6. 5. 81, directed the husband to pay Rs. 300. 00 per month to the wife and Rs. 200. 00 to the child on account of maintenance allowance. This order was to have effect from the date of the order, that is, 6. 5. 81.
( 5 ) FROM the order of the magistrate the husband filed a revision in the sessions court under section 397 Criminal Procedure Code. The Additional Sessions Judge by order dated 30th September, 1981 dismissed the revision petition. From his order this petition under section 482, Criminal Procedure Code. has been brought by the husband.
( 6 ) I heard this case on 21. 7. 82. The wife s counsel was present. The husband s counsel was absent. I dismissed the petition of the husband. Thereafter husband s counsel made an application for setting aside my ex parte order dated 21. 7. 82. I found that there was sufficient cause for a rehearing of the case. I consequently set aside my order dated 21. 7. 82. I have now re-heard the case. Both counsel have addressed full arguments.
( 7 ) COUNSEL for the husband has mainly argued that the order of the magistrate is illegal because it was passed without giving an opportunity to the husband to lead evidence in the case. He has taken a number of points in this connection. Firstly he says that the magistrate s order dated 4th April, 1981 is illegal as no evidence was given to the husband after the wife s petition was restored which had been dismissed for parties absence. Secondly he submits that the magistrate was not justified in taking ex parte proceedings without recording his satisfaction that the husband was wilfully neglecting to attend the court. In the third place he says that merely because a revision was filed under section 397 in the sessions by the husband he is not disentitled from invoking section 482 in the interests of justice. He says that this is permanently a fit case in which this court ought to exercise its inherent powers to secure the ends of justice under s. 482.
( 8 ) THE main question is whether there has been a denial of opportunity to the husband and whether this court ought to exercise its inherent powers under s. 482. From the record-counsel for both sides have taken as through the record-it appeas to me that the husband has been appearing, disappearing and reappearing in this case as the proceedings amply show. It is tedious to narrate all that happened in this case right from 1978 to 1982. It is sufficient to say that the husband was proceeded ex parte on 20th September, 1980. Though he made two applications to the court, one on 30th September, 1980 and the other on 5 12. 1980, he did not persue those applications. What is relevant to note is that after 20th Sept
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