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IN THE HIGH COURT OF ALLAHABAD
ARUN KUMAR SINGH DESHWAL, J.
Rajkumar – Appellant
Versus
State Of Uttar Pradesh And 2 Others – Respondents
Application U/S 482 No. - 10290 of 2019
Decided on : 14-05-2024
MAINTENANCE - CRIMINAL PROCEDURE CODE - Sections 125, 126, 127, 362 - The court discussed the provisions of Sections 125, 126, and 127 of the Cr.P.C., which govern maintenance orders, and clarified that the bar under Section 362 does not apply to such orders. The court emphasized that the Magistrate retains jurisdiction to recall or modify maintenance orders, thereby ensuring social justice for vulnerable parties. The interpretation of these sections highlighted the legislative intent to provide ongoing support and protection to those in need, influencing the court's decision to uphold the recall of the maintenance application.
Fact of the Case:
The applicant challenged the order dated 25.01.2019, which allowed the recall of a previous dismissal of a maintenance application filed by his wife and daughter under Section 125 Cr.P.C. The initial application was dismissed for want of prosecution on 23.11.2017, prompting the recall application that was subsequently granted by the Family Court.
Finding of the Court:
The court found that the Family Court acted within its jurisdiction to recall the order dismissing the maintenance application. It determined that the provisions of Sections 125, 126, and 127 Cr.P.C. allow for such recall and modification, thus rejecting the applicant's argument based on Section 362 Cr.P.C.
Issues: Whether the Family Court had the authority to recall its earlier order dismissing the maintenance application under Section 125 Cr.P.C. in light of the provisions of Section 362 Cr.P.C.
Ratio Decidendi: The court held that the bar under Section 362 Cr.P.C. does not prevent the recall or modification of maintenance orders under Sections 125, 126, and 127 Cr.P.C. The legislative intent behind these sections supports the ongoing jurisdiction of the court to ensure social justice.
Final Decision: The application was rejected, and the court directed the Family Court to expedite the proceedings under Section 125 Cr.P.C. within one year.
JUDGMENT :
Arun Kumar Singh Deshwal, J.
1. Rejoinder affidavit filed today is taken on record.
2. Heard learned counsel for the applicant, learned counsel for opposite party no.2 and Sri Sunil Kumar Kushwaha, learned AGA for the State.
3. The present application has been filed for the following relief:
4. Facts giving rise to the present case are that opposite parties, nos.2 and 3, are the wife and daughter of the applicant, respectively. The application for maintenance u/s 125 Cr.P.C. filed by opposite parties, nos.2 and 3, was dismissed for want of prosecution on 23.11.2017. Against that order, opposite parties, nos.2 and 3 filed a recall application, which was allowed by the court below by the impugned order dated 25.01.2019. This impugned order is under challenge in the present case.
5. Contention of learned counsel for the applicant is that the impugned order is erroneous as once an order has been passed in criminal proceeding dismissing the application u/s 125 Cr.P.C. for want of prosecution, then same cannot be recalled or modified in view of the bar of Section 362 Cr.P.C. In support of his contention, the counsel of the applicant relied upon the judgment of the Apex Court in the case of State Rep. by D.S.P., S.B.C.I.D., Chennai Vs. K.V. Rajendran and Ors in Criminal Appeal No.1389 of 2008. In this judgment, the Apex Court observed that the bar of section 362 Cr. P.C. also applies to the inherent power under section 482 Cr.P.C.
6. Per contra, learned counsel for opposite parties, nos.2 and 3 as well as learned AGA have submitted that Section-362 Cr.P.C. provides that save as otherwise provided by the Cr.P.C. or any other law, no court shall alter or review its judgment or final order disposing of the case. Therefore, it is clear that an exception has been provided in Section-362 Cr.P.C., itself and that exception has been mentioned in Section-127 Cr.P.C. which permits the court to alter or change any order passed u/s 125 Cr.P.C. Therefore, the court below is correct in recalling the order dated 23.11.2017 and restoring the case at its original number. In support of his contention, learned counsel for opposite party no.2 has relied upon the judgment of the Apex Court in the case of Sanjeev Kapoor Vs. Chandana Kapoor & Others reported in AIR 2020 SC 1064. In that judgment, the Apex Court observed that even after passing the order u/s 125 Cr.P.C., Magistrate or the court concerned will not become functus officio and it has jurisdiction to cancel or modify the order passed u/s 125 Cr.P.C.
7. After hearing the rival contention of learned counsel for the parties, and on the perusal of record, it appears that the application filed by the opposite parties, nos.2 and 3 against the applicant seeking maintenance u/s 125 Cr.P.C. was dismissed for want of prosecution on 23.11.2017 and on the recall application filed by the opposite parties, nos.2 and 3, the order dated 23.11.2017 was recalled and matter was restored to its original place by the impugned order dated 25.01.2019. In the impugned order, the court below has observed that in the proceeding of 125 Cr.P.C., if the case was dismissed for want of prosecution, the same can be recalled under Section-126(3) Cr.P.C. where the court has all power to make such order as the circumstances require.
8. So far as the bar u/s 362 Cr.P.C. is concerned, the bar has been imposed to recall or modify the final order by Section-362 Cr.P.C. after signing the same. It is clear from Section-362 Cr.P.C. that unless otherwise provided by the code o
The court established that the provisions of Sections 125, 126, and 127 Cr.P.C. allow for the recall and modification of maintenance orders, and that Section 362 Cr.P.C. does not impose a bar on such....
The court affirmed that the prohibition against altering judgments under Section 362 Cr.P.C. is relaxed in maintenance proceedings under Section 125, allowing for the recall and restoration of mainte....
The court affirmed that a second application under Section 125 Cr.P.C. is maintainable despite the dismissal of the first without liberty, emphasizing the continuing duty to maintain.
Section 125 Cr.P.C. establishes a continuing liability to pay maintenance and provides for its enforcement through Section 125(3). The provision serves a social purpose to prevent destitution and pro....
The court emphasized the need for timely justice in maintenance cases and condemned the misuse of legal procedures to delay rightful maintenance payments.
The court emphasized the summary nature of the proceedings under Section 125 of the Code of Criminal Procedure, 1973, and the objective to provide immediate relief to the applicant.
The court established that enforcement of maintenance orders under Section 125 Cr.P.C. must be pursued through Section 128 Cr.P.C., as the latter provides the appropriate legal framework for such enf....
Broad and expansive interpretation should be given to the term 'wife' to include even those cases where a man and woman have been living together as husband and wife for a reasonably long period of t....
A magistrate has the authority to modify or cancel maintenance orders under Section 125 and 127 of the Cr.P.C. based on changed circumstances, as clarified by the Supreme Court.
Maintenance proceeding – Speedy trial/enquiry is fundamental rights of parties – Principle of natural justice shall be followed while adjudicating petition.
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