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IN THE HIGH COURT OF ALLAHABAD
YOGENDRA KUMAR SRIVASTAVA, J.
Smt. Hema And Another - Petitioners
Versus
State of Uttar Pradesh and Another - Respondents
Matters Under Article 227 No. 6584 of 2023
Decided On : 16-05-2024
MAINTENANCE - CRIMINAL PROCEDURE CODE - Sections 125, 127, 362 - The court interpreted Sections 125 and 127 of the Cr.P.C. as allowing for the alteration and recall of maintenance orders, emphasizing that the Magistrate retains jurisdiction to modify orders as circumstances change. The court concluded that the prohibition in Section 362 against altering judgments does not apply to maintenance proceedings, thus allowing for the restoration of a dismissed maintenance petition.
Fact of the Case:
The petitioners challenged an order from the Family Court that dismissed their application for restoration of a maintenance petition under Section 125 Cr.P.C., which had been dismissed for non-prosecution. The petitioners argued that they acted in good faith and that the court's refusal to entertain their restoration application was erroneous.
Finding of the Court:
The court found that the Family Court's dismissal of the restoration application was unsustainable. It held that the court had not become functus officio and could entertain applications for recall or restoration of maintenance orders under Section 125 Cr.P.C.
Issues: Whether the Family Court could entertain a recall application after dismissing a maintenance petition for non-prosecution, and whether the provisions of Section 362 Cr.P.C. apply to maintenance proceedings under Section 125.
Ratio Decidendi: The court established that the provisions of Sections 125 and 127 Cr.P.C. allow for the alteration and recall of maintenance orders, and that the prohibition in Section 362 does not apply in this context. The court emphasized the social justice purpose of maintenance laws and the need for courts to provide timely relief to those in need.
Final Decision: The court set aside the order of the Family Court and remitted the matter for a fresh decision on the recall application, instructing the court to expedite the process.
JUDGMENT :
(Dr. Yogendra Kumar Srivastava, J.) :
1. Heard Sri Sujan Singh, learned counsel for the petitioners, Sri Pankaj Saxena, learned A.G.A.I appearing for the State-respondent and Ms. Niharika Dubey, learned counsel appearing for the respondent no. 2.
2. The present petition has been filed seeking to assail the order dated 02.01.2023 passed by the Principal Judge, Family Court, Agra in Misc. Case No. 2053 of 2022, under Section 125 Cr.P.C., arising out of Maintenance Case No. 783 of 2014 (Smt. Hema and another Vs. Dhirendra Pratap Singh).
3. The order dated 02.01.2023, which is subject matter of challenge in the present petition, was passed upon an application No. 3A filed by the petitioners seeking a recall of an earlier order dated 29.10.2022 and to restore the case to its original number.
4. The aforesaid application was dismissed by the Principal Judge, Family Court stating that after dismissal of an application under Section 125 Cr.P.C., no application seeking restoration of the case was entertainable. It was also observed that the petitioner could file a second application under Section 125 Cr.P.C.
5. Attention of the Court has been drawn to the factual aspects of the case by pointing out that the proceedings under Section 125 Cr.P.C. were instituted by filing a maintenance petition on 05.09.2014, which was allowed exparte by an order dated 08.09.2016, in terms whereof an amount of Rs. 10,000/per month had been awarded in favour of the petitioner no. 1, and an amount of Rs. 2,000/ in favour of the petitioner no. 2.
6. It is stated that the aforesaid ex parte order was recalled by a subsequent order dated 26.11.2018, upon an application by the respondent no. 2.
7. It is submitted that, on 29.10.2022, which was the date fixed in the case, the petitioner upon reaching the court was informed that the case had been taken up and an order had been passed dismissing the maintenance petition for non-prosecution. Immediately thereupon, on the same date, the petitioners are stated to have moved a restoration application seeking recall of the order. The restoration application was taken up, on 02.01.2023, and the same was dismissed.
8. Aggrieved by the aforesaid order, the present petition has been preferred.
9. Contention of the counsel for the petitioners is that there was no want of bona fides or lack of diligence on part of the petitioners and the conclusion drawn by the court to the contrary, is erroneous.
10. It is submitted that the restoration application having been moved, on the same date, the court concerned ought to have allowed the same, in the interest of justice.
11. As regards the conclusion drawn by the court concerned with regard to the restoration application being not entertainable, in proceedings under Section 125 Cr.P.C., it is urged that same would not be legally sustainable. To support the aforesaid submission, reliance, in this regard, has been placed on decisions in Kusum Devi Vs. Ram Chandra Maurya, 2004 1 Crimes(HC) 153; Kehari Singh Vs. State of U.P., 2005 0 CrLJ 2330; Jagmohan Arora Vs. Saroj Arora, 2011 Law Suit(Del) 2381; Suhird Kamra Vs. Neeta and Another, 1988 (14) DRJ 282 and Sanjeev Kapoor Vs. Chandana Kapoor and Others, (2020) 13 SCC 172.
12. Counsel appearing for the respondent no. 2 has sought to contend that the petitioners having moved a second application seeking maintenance, which is pending, there would be no plausible reason for them to seek restoration of the earlier application.
13. In this regard, learned counsel for the petitioners has drawn attention of the Court to the specific assertion in the petition wherein the petitioners have undertaken that in the event of the earlier maintenance petition being restored to its original number, the petitioners would withdraw the second application filed for the purpose.
14. The principal question, which falls for consideration, is as to whether, in proceedings under Section 125 Cr.P.C., upon an order having been made, the court concerned
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