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1997 Supreme(Guj) 172

Gujarat High Court
Judgename :K.J.VAIDYA
KANTABEN MAFATLAL - Appellant
Versus
GOVINDBHAI MANUBHAI PATNI - Respondent
CRIMINAL REVISION APPLICATION 396 of 1996
Decided On : 03/31/1997

Advocates Appeared: SUNIL SHAH, Y.N.OZA

Headnote:Criminal Revision Application No. 396 of 1996 - Decided on 31st March, 1997

       (a) Criminal Procedure Code, 1973 - Sec. 125 - Order of maintenance against husband - Failure to pay on account of insufficient means - Not justifiable to send defaulter to jail to serve imprisonment - On the contrary efforts should be made to get him employed or if possible to both husband & wife under some self employment scheme of Govt. - Suggestion for the purpose put forward.

       It appears that whenever such vexed problem like the one in the instant case arises in the Court where husband is unable to maintain his wife and children particularly because no fault of him in other words there being sufficient cause preventing him from complying with the maintenance order ***** bearing in mind relevant provisions as contained in Sec. 125 (3) of the Code, the husband, in the first instance can never be sent to jail to serve imprisonment not only that but in the second instance as observed above some honest sincere efforts are required to be made to get him employed, self-employed if possible both the husband and the wife. To conveniently and successfully further implement this suggestion, it appears to be quite advisable to have one permanent Special Legal Aid Committee in every Criminal Court precisely dealing with the family problem of fallen-apart husband and wife consisting of (i) known experienced women social worker (ii) two senior advocates interested and dedicated to social cause of justice one of whom should be the lady advocate; (iii) Professor of Psychology; (iv) Responsible officer from the office of General Manager, District Industries Centre, Ahmedabad. The Registrar shall place before the State Legal Aid Committee, if it could help, assist constituting such Committees, failing whcih the concerned courts shall have to do the needful in the matter.

       [Para 9]

       (b) Criminal Procedure Code, 1973 - Sec. 125 - Order of maintenance - Non-compliance - Non-petitioner husband - Sent to jail to serve imprisonment - Court considered the fact that non payment was as a result of lack of sufficient means to pay - He was bonafide to pay on release after earning - Court ordered his release regulating & directing payment in a phased manner - Police Officers of the area also directed to keep an eye on him.

       With a view to enable Opponent-Govindbhai to prove his bonafides in the matter of discharging his marital and parental obligation towards his wife and the child, he is ordered to be temporarily released on his executing a personal bond in the sum of Rs. 1,000/- and a surety of the like amount, till further orders. After his release, as agreed and assured by Opponent-Govindbhai, out of his earnings, he shall pay to his wife-Kantaben Rs. 250/- on 31.12.1996 and Rs. 350/- in the month of January, 1997; Rs. 450/- in the month of February, 1997; and Rs. 500/- in the month of March 1997. It is further clarified that if Govindbhai commits any default in payment of the amount as stipulated above, despite his sufficient earnings, he shall have to thank himself and return to the jail custody. As regards the payment made by Govindbhai to his wife-Kantaben, he shall produce the receipts so issued by the petitioner Kantaben whenever demanded by the Court. The police officer of the concerned area shall keep an eye on Govindbhai about the selling of the vegetables in the area and report back to this Court when information so demanded. Any complaint of harassment by anybody to Opponent-Govindbhai would be taken very seriously.

       [Para 10]

K. J. VAIDYA, J.

( 1 ) HERE in this Criminal Revision Application, there arise two important questions for my consideration. They are Firstly - "whether the husband who has been ordered to pay the maintenance under S. 125 of the Criminal procedure Code, 1973, to his wife and the child by the learned Magistrate and has in fact by this time indisputably continuously paid the same and that too in all to the tune of Rs. 35,000. 00, but then incidentally enough as the misfortune would have been by sheer stroke of ill-luck he becoming the victim of the hostile circumstances beyond his control rendered unemployed, with no bank balance or any other property at hand to fall back upon rather too poor, and accordingly, as a result was unable to pay and started committing default after default every month in paying regular maintenance amount, accumulating into arrears ultimately rising beyond reach amount of Rs. 17,000. 00, can he under such no-fault bewitching circumstances be straightway fastened with the rough and ready allegation that he intentionally did not pay the maintenance ordered without there being any "just and sufficient cause" and as an offshoot consequently necessitating the ultimate order of sending him to the prison ?". Secondly, whether before sending any such unfortunate husbands to the jail, is there something like an unwritten Code of the "social justice" based upon the humanistic philosophy which unexceptionably impinging, warranting upon the judicial conscience of the Court to initiate of its own some honest, sincere efforts to resolve the economic stalemate between the husband and wife by finding out some job opportunities, if possible for both of them whereby further with the active help and assistance of the Special Legal Aid Committee [to be set-up in the matter of reconciliation and ultimately resolving the problems difference between the husband and wife], some reasonable way could be found out to save the situation in overall interest of justice ? NOTE : No doubt, there is indeed nothing in black and white anywhere in the Code calling upon the learned Magistrate conducting maintenance proceedings under S. 125 of the Code to perform such an additional duty to explore some such possibilities by way of extra exerting itself and help, assist economically suffering and stranded husband and wife caught in an enervating struggle for their very survivals in the quite peculiar circumstances like the one at hand. But then, I am afraid, this is perhaps too peevish, ordinary and bookish approach to look at the human problem involved in the maintenance proceedings between the husband and wife begging justice from the Court. For doing true and substantial social justice many a time mere reading of the law and case law by itself is not enough firstly because the life is larger than the law and, Secondly because without beating heart for the justice further activated by crusading judicial conscience and spirit, the Judge and the judicial system would always remain lifeless formality, only shadow and not the substance. In this view of the matter, I firmly believe that today where the law is silent but certainly does not necessarily expressly prohibit doing any just good act of overall substantial justice in favour of the needy party and as against that while not doing right thing at the right moment, passively watching the nightmare situation of hopeless, helpless husband, if the judicial conscience starts raising voice, alarm, revolting, urging itself to do some real and substantial justice to the parties before it and further still while not responding to its internal call, if it starts suffering the pangs of the scorpion-bite, unbearable injustice then it must definitely rise to the occasion and do the needful, and there is indeed nothing wrong in this judicial world if in some such given exceptional cases the Court while on its way to the quest for truth and justice beats altogether new path by bringing about new chapter





















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