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High Court Of Delhi
PREMA JAIN - Appellant
Versus
SUDHIR KUMAR JAIN - Respondent
CRIMINAL APPEAL 218 of 1977
Decided On : 04/25/1979
MAINTENANCE - SECTION 125 OF THE CODE OF CRIMINAL PROCEDURE, 1973 - RESTORATION OF DISMISSED PETITION - POWER OF MAGISTRATE - INTERPRETATION OF SECTION 362 OF THE CODE OF CRIMINAL PROCEDURE, 1973 - DISTINCTION BETWEEN MAINTENANCE PROCEEDINGS AND CRIMINAL PROCEEDINGS - APPLICABILITY OF PRINCIPLES OF NATURAL JUSTICE - INHERENT POWERS OF THE COURT - REVIEW OF ORDERS - FINAL ORDER - JUDICIAL AND ADMINISTRATIVE ORDERS - WELFARE LEGISLATION - CONSTRUCTION IN FAVOUR OF BENEFICIARIES.
Fact of the Case:
Prema Jain filed a petition under section 125 of the Code of Criminal Procedure, 1973, for maintenance allowance against her husband Sudhir Kumar Jain. The petition was dismissed for non-appearance. An application for restoration was filed and granted by the Metropolitan Magistrate. The respondent moved the Court of Session for revision of the order, which was allowed. Prema Jain challenged the revisional order.
Finding of the Court:
1. Maintenance proceedings under section 125 of the Code of Criminal Procedure, 1973 are civil in nature, not criminal. 2. The inherent power of the Court can be invoked in the absence of an express provision covering the issue in the Code. 3. Section 362 of the Code of Criminal Procedure, 1973, which prohibits the alteration or review of final orders, does not apply to administrative orders. 4. A distinction exists between maintenance proceedings and criminal proceedings, as reflected in the absence of punishment, preliminary inquiry, and the possibility of ex-parte proceedings in maintenance cases. 5. Welfare legislation, such as section 125 of the Code of Criminal Procedure, 1973, must be construed in favor of the beneficiaries, considering the weaker sections of society they are intended to protect.
Issues: 1. Whether maintenance proceedings under section 125 of the Code of Criminal Procedure, 1973 are criminal or civil in nature. 2. Whether the inherent power of the Court can be invoked to restore a dismissed maintenance petition. 3. Whether the prohibition against altering or reviewing final orders under section 362 of the Code of Criminal Procedure, 1973 applies to administrative orders. 4. Whether there is a distinction between maintenance proceedings and criminal proceedings. 5. How welfare legislation, such as section 125 of the Code of Criminal Procedure, 1973, should be construed.
Ratio Decidendi: 1. The nature of maintenance proceedings under section 125 of the Code of Criminal Procedure, 1973 is civil, not criminal, as evidenced by the absence of punishment, preliminary inquiry, and the possibility of ex-parte proceedings. 2. The inherent power of the Court can be invoked to restore a dismissed maintenance petition, as there is no express provision covering the issue in the Code. 3. The prohibition against altering or reviewing final orders under section 362 of the Code of Criminal Procedure, 1973 does not apply to administrative orders, as the order in question was administrative rather than judicial. 4. A distinction exists between maintenance proceedings and criminal proceedings, as reflected in the absence of punishment, preliminary inquiry, and the possibility of ex-parte proceedings in maintenance cases. 5. Welfare legislation, such as section 125 of the Code of Criminal Procedure, 1973, must be construed in favor of the beneficiaries, considering the weaker sections of society they are intended to protect.
Final Decision: The petition filed by Prema Jain was accepted, and the order of the Additional Sessions Judge was set aside, reinstating the order of the Metropolitan Magistrate that revived the petition of Prema Jain dismissed for default.
( 1 ) PREMA Jain filed a petition under section 125 of the Code of Criminal Procedure, 1973, for the award of maintenance allowance against her husband Sudhir Kumar Jain on 29-1-1976. The said petition was dismissed by the Metropolitan Magistrate concerned because of her non-appearance on 16-7-1976. Her counsel preferred an application for the restoration of the said petition on 19-7-1976 but it was dismissed on 20-10-1976 for the technical reason it had been signed by her Advocate and not by Prema Jain herself. She filed, therefore, another application on 27-10-1976 for the restoration of the original petition and it was granted by Shri H. P. Sharma, Metropolitan Magistrate on 27-1-1977. The learned Magistrate observed that there was no law to prohibit filing of restoration application; there was no intentional lapse on the part of the applicant and she could not be penalised for a minor lapse of her counsel and that too when the Court was not functioning in a regular form because of quick transfers and its office was working at two different places giving rise to confusion. He ordered payment by her of Rs. 50 as penalty and the amount was readinly accepted by the counsel for the other side.
( 2 ). The respondent moved the Court of Session, however, for a revision of the order of the learned Metropolitan Magistrate dated 27-1-1977 on the ground he had no power inherent or otherwise to review his own order dismissing the petition for default. His plea prevailed with Shri V. B. Bansal, Additional Sessions Judge, and holding that the Magistrate s order was without jurisdiction and beyond the scope of the Code of Criminal Procedure he set aside the same. Prema Jain has now approached this Court with a petition to avoid the damage done by the order of the first revisional court.
( 3 ). The learned Additional Sessions Judge has observed that the proceedings under section 125 of the Code of Criminal Procedure 1973 (hereinafter referred to as the new Code ) were criminal in nature and found support for this view from Shrimati Harbhaja,n Kaur v. Major Sant Singh (A. I. R. 1969 Delhi 298) (1 ). He has held that the Magistrate was incompetent to recall his order and relied in this behalf on Sankatha Singh and others v. State of Uttar Pradesh (A. I. R. 1962 S. C. 1208) (2) and Babu Ram v. Ramji Lal and others (A. I. R. 1964 Punjab 444) (3 ).
( 4 ). The first issue raised before me is concerned with the nature of a maintenance matter. Shri Maheshwar Dayal has urged that the proceedings pursuant to a petition under section 125 of the New Code are criminal proceedings and as such an order of their restoration cannot be passed like an order under Order 9 of the Code of Civil Procedure. But his reliance in this behalf on Ashish v. D. C. Tewari (1969 D. L. T. 693) (4) is misconceived. In that case Chief Justice 1. D. Dua (as his Lordship than was) observed, of course, that he must not be understood to equate proceedings under section 488 Criminal Procedure Code 1898 (hereinafter referred to as the old Code ) with a regular civil suit for maintenance, but he hastened to add, it is obvious from the statutory scheme of Chapter XXXVI of the Code that these provisions are relatively summary, designed to afford urgent relief to the needy, neglected wife and child to a limited extent through the Courts of Magistrate . It could not possibly have been meant by his lordship to say that the petitioning party might be shown the door for a minor lapse.
( 5 ). The case reported in Bhagwan Singh v. Mst. Gurnam Kaui and another (1966 P. L. R. 127) (5) was under section 488 of the Old Code and the learned Judge disposing of the same held that an order dismissing a petition for maintenance for default of petitioner s appearance could not subsequently be set aside by the Magistrate himself. But the learned Judge took the aforesaid view of the law principally because of the precedent to be found in Babu Ram v. Ramji Lal and others (A. I. R. 1964
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