SANJEEV KAPOOR versus CHANDANA KAPOOR & ORS.

[2020] 1 S.C.R. 663

SANJEEV KAPOOR

CHANDANA KAPOOR & ORS.

(Criminal Appeal No. 286 of 2020)

FEBRUARY 19, 2020

[ASHOK BHUSHAN AND R. SUBHASH REDDY, JJ.]

Code of Criminal Procedure, 1973: s.362 – Court not to alterjudgment – In the instant case, the Family Court disposed of themaintenance petition under s.125 CrPC filed by respondent-wifedirecting appellant-husband to pay monthly maintenance and theparties to the dispute to file petition for divorce by mutual consent –Husband paid the maintenance for four months only – Respondent-wife filed execution petition for enforcement of the order for paymentof maintenance – Family Court rejected the execution petitionholding that the order of maintenance was purely conditional andwas subject to the fulfillment of respective obligations by the partieswhich they did not perform and, therefore, application unders.125(3) was not maintainable – Wife filed application for recallingthe order passed in s.125 petition – Family Court restored the s.125petition – Husband challenged the same by filing s.482 petition –High Court rejected the s.482 petition – On appeal, held: TheMagistrate does not become functus officio after passing an orderunder s.125 – The section clearly contemplates that the Magistratemay have to exercise jurisdiction from time to time – The order passedin instant case by Family Court reviving the maintenance applicationof the wife under s.125 by setting aside order passed on settlementis not hit by the embargo contained in s.362 – Plea of husband thats.362 prohibited the Magistrate to restore the maintenanceapplication was not tenable – High Court did not commit an errorin rejecting the application under s.482 – The inherent powers ofthe High Court given under s.482 are to be exercised to secure theends of justice – Family Court did substantial justice in reviving themaintenance application of the wife – High Court erred in interferingin exercise of its jurisdiction under s.482 Cr.P.C. – Family law –Maintenance – Code of Criminal Procedure, 1898 – s.369.

DEF

ADismissing the appeal, the Court

HELD: 1. The Legislative Scheme as delineated by Section369 of Code of Criminal Procedure, 1898, as well as LegislativeScheme as delineated by Section 362 of Code of CriminalProcedure, 1973 is one and the same. The embargo put on theBcriminal court to alter or review its judgment is with purposeand object. The criminal justice delivery system does not clothcriminal court with power to alter or review the judgment or finalorder disposing the case except to correct the clerical orarithmetical error. After the judgment delivered by criminalCourt or passing final order disposing the case, the Court becomesCfunctus officio and any mistake or glaring omission is left to becorrected only by appropriate forum in accordance with law.Section 362 Cr.P.C. begins with the word “save as otherwiseprovided by this Code or by any other law for the time being inforce”. The above expression clearly means that rigour asDcontained in Section 362 Cr.P.C. is relaxed in following twoconditions: - i) Save as otherwise provided by the Code of CriminalProcedure. ii) any other law for the time being in force. [Paras18, 20][672-B-F]2. The closer look of Section 125 Cr.P.C. itself indicatesEthat the Court after passing judgment or final order in theproceeding under Section 125 Cr.P.C. does not become functusofficio. The Section itself contains express provisions where orderpassed thereunder can be cancelled or altered which is noticeablefrom Section 125(1), Section 125(5) and Section 127 of Cr.P.C. InSection 125 Cr.P.C., the expression used is “as the MagistrateFfrom time to time direct”. The use of expression ‘from time totime’ has purpose and meaning. It clearly contemplates that withregard to order passed under Section 125(1) Cr.P.C., theMagistrate may have to exercise jurisdiction from time to time.By Section 125(5) Cr.P.C., Magistrate is expressly empoweredGto cancel an order passed under Section 125(1) Cr.P.C. onfulfilment of certain conditions. Section 127 Cr.P.C. also disclosesthe legislative intendment where the Magistrate is empoweredto alter an order passed under Section 125 Cr.P.C. Section 127(2)Cr.P.C. also empower the Magistrate to cancel or vary an orderunder Section 125. The Legislative Scheme as delineated byH

Sections 125 and 127 Cr.P.C. clearly enumerated thecircumstances and incidents provided in Cr.P.C. where Courtpassing judgment or final order disposing the case can alter orreview the same. The embargo as contained in Section 362 is,thus, clearly relaxed in proceeding under Section 125 Cr.P.C.[Paras 23-26][675-G-H; 678-D-H; 679-A]

3. It came on the record that after passing of the order onsettlement, the appellant according to his own case paidmaintenance of four months only. The arrears were not paid bythe appellant within the time allowed by the Court. When theappellant did not honour its commitment under settlement, thewife cannot be left in lurch by not able to press for grant ofmaintenance on non-compliance by the appellant of the terms ofsettlement. Section 125 Cr.P.C. has to be interpreted in manneras to advance justice and to protect woman for whose benefitthe provisions have been engrafted. [Para 29][680-B-D]

Badshah v. Urmila Badshah Godse and another (2014)1 SCC 188 : [2013] 10 SCR 259; Mahua Biswas(Smt.)v. Swagata Biswas and another (1998) 2 SCC 359 –relied on.

Sankatha Singh v. State of U.P. 1962 AIR 1208 : [1962]Suppl. SCR 817; Smt. Sooraj Devi v. Pyare Lal andanother AIR 1981 SC 736 : [1981] 2 SCR 485; Mostt.Simrikhia v. Smt. Dolley Mukherjee @ Smt.Chhabimukherjee & another AIR 1990 SC 1605 :[1990] 1 SCR 788; Hari Singh Mann v. HarbhajanSingh Bajwa & Others (2001) 1SCC 169 : [2000] 4Suppl. SCR 313; State v. K.V. Rajendran and Others(2008) 8 SCC 673 : [2008] 12 SCR 1141 – referred to

[2020] 1 S.C.R.

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.B286 of 2020.

From the Judgment and Order dated 05.11.2019 of the High Courtof Punjab and Haryana at Chandigarh in CRM-M-4663-2019.

Subodh Markandeya, Sr. Adv., Pramit Saxena, Rahul Aggarwal,Amit Pratap Singh, Advs. for the Appellant.CRishabh Jain, Adv. for the Respondents.

The Judgment of the Court was delivered by

ASHOK BHUSHAN, J.

1. This appeal has been filed against the judgment of the HighDCourt of Punjab and Haryana at Chandigarh dated 05.11.2019 in CRM-M-4663 of 2019 filed by the appellant for setting aside the order dated05.01.2019 passed by the Addl. Principal Judge, Family Court, Faridabad.The High Court dismissed the petition filed under Section 482 Cr.P.C. bythe appellant.E

2. Brief facts of the case necessary for deciding this appeal are:

The appellant was married to respondent No.1 on 04.11.1998. On17.08.199 daughter was born and on 18.07.2005 son was born out oftheir wedlock. An application under Section 125 Cr.P.C. was filed byrespondent No.1 on 09.07.2013 against her husband claiming maintenanceFfor respondent No.1 as well as respondent Nos.2 and 3, minor daughterand son. On 14.10.2013 the appellant filed petition for divorce againstrespondent No.1. On the reconciliation efforts made by the Family Courtparties settled the matter amicably on the terms and conditions recordedseparately in the Court. As per the settlement the appellant was to payGRs.25,000/- per month towards the maintenance of the respondents witheffect from July, 2015 upto April, 2017. With effect from May, 2017, theamount of Rs.25,000/- per month was to be deposited directly in theaccount of Chandana Kapoor, respondent No.1 before 10[th] day of eachmonth. The arrears were to be paid within six months. It was furthercontemplated that the appellant and respondent No.1 shall file petitionHfor divorce by mutual consent by incorporating the terms and conditions.

The maintenance petition was, thus, disposed of by the Family Court byorder dated 06.05.2017.

3. The appellant from May, 2017 paid the maintenance only forfour months i.e. Rs.1,00,000/-. Respondent No.1 filed an application inJanuary, 2018 under Section 125(3) Cr.P.C. for enforcement of the orderdated 06.05.2017 being Execution Petition No.240 of 2018. The ExecutionPetition filed by respondent No.1 was rejected by the Additional PrincipalJudge, Family Court, Faridabad vide order dated 16.07.2018. The Courtheld that order dated 06.05.2017 being purely conditional and was subjectto the fulfilment of the respective obligations by the parties which theyhave not performed, the application under Section 125(3) Cr.P.C. wasnot maintainable.

4. After the application filed by respondent No.1 for execution ofthe order was rejected, respondent No.1 filed an application for recallthe order dated 06.05.2017 on 31.07.2018. Respondent No.1 stated inthe application that the appellant did not deposit the arrears of the amountas agreed and total amount paid by the appellant was only Rs.75,000/-towards maintenance. Respondent No.1 prayed that order 06.05.2017may be recalled and application under Section 125(3) Cr.P.C. be restoredand decided on merits after hearing the parties. The application filed byrespondent No.1 was objected by the appellant by filing objection. In theobjection, it was stated that the appellant had made payment of someamount as per terms since the respondent backed out, the payment wasstopped.

5. The learned Additional Principal Judge, Family Court by orderdated 05.01.2019 set aside the order dated 06.05.2017 restoring thepetition under Section 125 Cr.P.C. Challenging the order dated 05.01.2019passed by the Family Court, the appellant had filed application underSection 482 Cr.P.C. in the High Court which has been rejected by theHigh Court by order dated 05.11.2019. Aggrieved by the order dated05.11.2019 of the High Court the appellant has filed this appeal.

6. Shri Subodh Markandeya, learned senior counsel for theappellant submits that the application under Section 125 Cr.P.C. filed byrespondent No.1 having been finally decided by order dated 06.05.2017by the learned District Judge, Family Court, Family Court had nojurisdiction to set aside the order. The impugned order dated 05.01.2019is without jurisdiction and is in the teeth of provision of Section 362Cr.P.C.

A7. It is submitted that according to the Section 362 Cr.P.C. theCourt cannot alter or review the judgment except to correct clerical orarithmetical error. It is submitted that order dated 05.01.2019 of thePrincipal Judge, Family Court being contrary to Section 362 Cr.P.C. isvoid. He submits that the High Court committed error in not settingaside the order dated 05.01.2019.B

8. Learned counsel for the appellant in support of his submissionhas relied on several judgments of this Court which shall be noticedhereinafter.

9. The respondent appeared through counsel on caveat. LearnedCcounsel for the respondent supported the impugned judgment of the HighCourt.

10. We have considered the submissions of the learned counselfor the parties and perused the records.

11. The only point to be determined in this appeal is as to whetherDthe order passed by the Additional Principal Judge, Family Court dated05.01.2019 setting aside the order dated 06.05.2017 disposing of theapplication under Section 125 Cr.P.C. and restoring the application underSection 125 Cr.P.C. was contrary to Section 362 Cr.P.C. which providesthat no Court can alter or review its judgment except for correcting aEclerical or arithmetical mistake. Section 362 Cr.P.C. contained in ChapterXXVII “THE JUDGMENT” is to the following effect:

“Section 362.Court not to alter judgement.- Save asotherwise provided by this Code or by any other law for the timebeing in force, no Court, when it has signed its judgment or finalForder disposing of case, shall alter or review the same except tocorrect clerical or arithmetical error.”

12. We may first notice the judgments which have been relied bythe learned counsel for the appellant in support of his submission. Thefirst judgment which has been relied by the learned counsel for theappellant is in Sankatha Singh vs. State of U.P., 1962 AIR 1208. InGthe above case when criminal appeal came for hearing before the trialcourt, the trial court dismissed the appeal, noticing that the appellantshave been absent, and their counsel has not appeared to argue the appeal.The Court also observed that it had perused the judgment of the Magistrateand seen the record and there is no ground for interference. An applicationHwas filed before the Appellate Court for restoration of the appeal which

was allowed by the learned Sessions Judge. However, when the appealwas again listed for hearing the learned Judge took the view that theAppellate Court had no power to review or restore an appeal which hadbeen disposed of. The appeal was dismissed. The criminal revision wasfiled in the High Court which too was dismissed. This Court in the abovecase had occasion to consider Section 369 of Criminal Procedure Code,1898 which is now Section 362 of Criminal Procedure Code, 1973. ThisCourt held that Section 369 of the Code prohibited the Courts fromreviewing or altering its judgment. Following was laid down by this Court:“It has been urged for the appellants that Shri Tej Pal Singhcould order the rehearing of the appeal in the exercise of theinherent powers which every court possesses in order to furtherthe ends of justice and that Shri Tripathi was not justified in anycase to sit in judgment over the order of Shri Tej Pal Singh, anorder passed within jurisdiction, even though it be erroneous.Assuming that Shri Tej Pal Singh, as Sessions Judge, could exerciseinherent powers, we are of opinion that he could not pass theorder of the rehearing of the appeal in the exercise of such powerswhen Section 369, read with Section 424 of the Code, specificallyprohibits the altering or reviewing of its order by court. Inherentpowers cannot be exercised to do what the Code specificallyprohibits the court from doing. Shri Tripathi was competent toconsider when the other party raised the objection whether theappeal was validly up for rehearing before him. He consideredthe question and decided it rightly.

It is also urged for the appellants Shri Tej Pal Singh had thejurisdiction to pass orders on the application presented by theappellants on December 17, 1956, praying for the rehearing ofthe appeal and that therefore his order could not be said to havebeen absolutely without jurisdiction. We do not agree. He certainlyhad jurisdiction to dispose of the application presented to him, butwhen Section 369 of the Code definitely prohibited the court’sreviewing or altering its judgment, he had no jurisdiction to considerthe point raised and to set aside the order dismissing the appealand order its rehearing.”

13. Next judgment cited is Smt. Sooraj Devi vs. Pyare Lal andanother, AIR 1981 SC 736, where Section 362 Cr.P.C. came forconsideration. This Court laid down following:

A“The appellant points out that he invoked the inherent powerof the High Court saved by Section 482 of the Code and thatnotwithstanding the prohibition imposed by Section 362 the HighCourt had power to grant relief. Now it is well settled that theinherent power of the court cannot be exercised for doing thatwhich is specifically prohibited by the Code (Sankatha Singh v.BState of U.P.). It is true that the prohibition in Section 362 againstthe court altering or reviewing its judgment is subject to what is“otherwise provided by this Court or by any other law for the timebeing in force”. Those words, however, refer to those provisionsonly where the court has been expressly authorised by the CodeCor other law to alter or review its judgment. The inherent powerof the court is not contemplated by the saving provision containedin Section 362 and, therefore, the attempt to invoke that powercan be of no avail.”

14. Next judgment relied is Mostt. Simrikhia vs. Smt. DolleyDMukherjee @ Smt. Chhabimukherjee & another, AIR 1990 SC1605, in which this Court held:

“Section 362 of the Code expressly provides that no courtwhen it has signed its judgment or final order disposing of case,shall alter or review the same except to correct clerical orEarithmetical error save as otherwise provided by the Code. Section482 enables the High Court to make such order as may benecessary to give effect to any order under the Code or to preventabuse of the process of any court or otherwise to secure the endsof justice. The inherent powers, however, as much are controlledby principle and precedent as are its express powers by statute.FIf matter is covered by an express letter of law, the court cannotgive go-by to the statutory provisions and instead evolve newprovision in the garb of inherent jurisdiction.”

15. To the same effect, is the judgment of this Court reported inHari Singh Mann vs. Harbhajan Singh Bajwa & others, 2001 (1)GSCC 169, which has been relied by the appellant.

16. Next case relied is State vs. K.V. Rajendran and others,2008(8) SCC 673. This Court had occasion to consider Section 362and Section 482 Cr.P.C. In the above case relying on the judgment ofthis Court in Mostt. Simrikhia vs. Smt. Dolley Mukherjee (supra)Hthis Court laid down in paragraph 18:

“18. Keeping the principles, as laid down by the aforesaiddecisions of this Court in mind, let us now look to Section 362 ofthe Code, which expressly provides that no court which has signedits judgment and final order disposing of case, shall alter orreview the same except to correct clerical or arithmetical errorsave as otherwise provided by the court. At this stage, the exerciseof power under Section 482 of the Code may be looked into.”

17. Learned counsel for the appellant has also referred to judgmentof this Court in Mahua Biswas (Smt.) vs. Swagata Biswas andanother, (1998) 2 SCC 359. In the above case, in the proceedingsunder Section 125 Cr.P.C. parties compromised and started living togetherbut later fell apart. An objection was raised by the husband that order ofmaintenance could not be revived with which High Court agreed. ThisCourt revived the maintenance application by allowing the appeal. Inparagraph 3 following was held:

“3. The matter can be viewed from either angle. It can beviewed that there was genuine effort by the wife to rehabilitateherself in her matrimonial home but in vain. The previous ordersof maintenance in manner of speaking could at best be taken tohave been suspended but not wiped out altogether. The other viewcan be that the maintenance order stood exhausted and thus shebe left to fight new litigation on fresh cause of action. Out ofthe two courses, we would prefer to adopt the first one, for if wewere to resort to the second option, it would lead to injustice. In agiven case the wife may then be reluctant to settle with her husbandlest she lose the order of maintenance secured on his neglect orrefusal. Her husband on the other side, would jump to impromptudevices to demolish the maintenance order in duping the wife to atemporary reconciliation. Thus, in order to do complete justicebetween the parties, we would in the facts and circumstancesactivate the wife’s claim to maintenance and put her in the sameposition as before. Evidently, she has obtained maintenance orderat figure which was taken into account by the Court of theC.J.M. Taking that into account, we order the husband to pay tohis wife and the daughter sum of Rs 1000 each, effective from1-10-1997. The sum of Rs 12,000 which was earlier ordered bythis Court to be paid to the wife and her daughter as arrears ofmaintenance shall be taken to have been duly paid uptil 30-9-

672SUPREME COURT REPORTS

A1997, irrespective of the rate of maintenance. This streamlinesthe dispute between the parties. It is made clear that it is open tothe parties to claim such other relief as may be due to him/her byraising matrimonial dispute before the matrimonial court.”

18. The Legislative Scheme as delineated by Section 369 of CodeBof Criminal Procedure, 1898, as well as Legislative Scheme as delineatedby Section 362 of Code of Criminal Procedure, 1973 is one and thesame. The embargo put on the criminal court to alter or review itsjudgment is with purpose and object. The judgments of this Court asnoted above, summarised the law to the effect that criminal justicedelivery system does not cloth criminal court with power to alter orCreview the judgment or final order disposing the case except to correctthe clerical or arithmetical error. After the judgment delivered by criminalCourt or passing final order disposing the case the Court becomes functusofficio and any mistake or glaring omission is left to be corrected only byappropriate forum in accordance with law.D19. In the present case, we are concerned with the order passedby the Court under Section 125 Cr.P.C. Whether the embargo containedin under Section 362 Cr.P.C. prohibiting the court to alter or review itsjudgment or final order disposing the case applies to order passed underSection 125 Cr.P.C. is the question to be answered in the present case.

20. Section 362 Cr.P.C. begins with the word “save as otherwiseprovided by this Code or by any other law for the time being inforce”. The above expression clearly means that rigour as contained inSection 363 Cr.P.C. is relaxed in following two conditions: -

i) Save as otherwise provided by the code of Criminal Procedure.F

ii) any other law for the time being in force.

21. We need to first examine as to whether the orders passed inpresent case are covered by the exception i.e. “save as otherwiseprovided by the Code”. Section 362 Cr.P.C., thus, although put embargoon the criminal Court to alter or review its judgment or final order disposingGthe case but engrafted the exceptions as indicated therein. The legislaturewas aware that there are and may be the situations where altering orreviewing of criminal court judgment is contemplated in the Code itselfor any other law for the time being in force. We since in the presentcase are concerned only with Section 125 Cr.P.C., we need to examineH

as to whether Section 145 Cr.P.C. in any manner relaxed the rigour ofSection 362 Cr.P.C.

22. Before we proceed to look into the Legislative Scheme ofSection 125 Cr.P.C., we need to notice few rules of interpretation ofstatutes when court is concerned with interpretation of social justicelegislation. Section 125 Cr.P.C. is social justice legislation which orderfor maintenance for wives, children and parents. Maintenance of wives,children and parents is continuous obligation enforced. This Court hadoccasion to consider the interpretation of Section 125 Cr.P.C. in Badshahversus Urmila Badshah Godse and another, (2014) 1 SCC 188. Inparagraphs 13.3 to 18, following has been laid down: -

“13.3. Thirdly, in such cases, purposive interpretationneeds to be given to the provisions of Section 125 Cr.P.C.While dealing with the application of destitute wife orhapless children or parents under this provision, the Court isdealing with the marginalised sections of the society. Thepurpose is to achieve “social justice” which is theconstitutional vision, enshrined in the Preamble of theConstitution of India. The Preamble to the Constitution ofIndia clearly signals that we have chosen the democratic pathunder the rule of law to achieve the goal of securing for allits citizens, justice, liberty, equality and fraternity. Itspecifically highlights achieving their social justice. Therefore,it becomes the bounden duty of the courts to advance thecause of the social justice. While giving interpretation to aparticular provision, the court is supposed to bridge the gapbetween the law and society.

14. Of late, in this very direction, it is emphasised thatthe courts have to adopt different approaches in “social justiceadjudication”, which is also known as “social contextadjudication” as mere “adversarial approach” may not bevery appropriate. There are number of social justicelegislations giving special protection and benefits tovulnerable groups in the society. Prof. Madhava Menondescribes it eloquently:

“It is, therefore, respectfully submitted that ‘socialcontext judging’ is essentially the application of equality

jurisprudence as evolved by Parliament and the SupremeCourt in myriad situations presented before courts whereunequal parties are pitted in adversarial proceedings andwhere courts are called upon to dispense equal justice. Apartfrom the social-economic inequalities accentuating thedisabilities of the poor in an unequal fight, the adversarialprocess itself operates to the disadvantage of the weaker party.In such situation, the Judge has to be not only sensitive tothe inequalities of parties involved but also positively inclinedto the weaker party if the imbalance were not to result inmiscarriage of justice. This result is achieved by what we callsocial context judging or social justice adjudication.”

15. The provision of maintenance would definitely fallin this category which aims at empowering the destitute andachieving social justice or equality and dignity of theindividual. While dealing with cases under this provision, driftin the approach from “adversarial” litigation to social contextadjudication is the need of the hour.

16. The law regulates relationships between people. Itprescribes patterns of behaviour. It reflects the values ofsociety. The role of the court is to understand the purpose oflaw in society and to help the law achieve its purpose. But thelaw of society is living organism. It is based on givenfactual and social reality that is constantly changing.Sometimes change in law precedes societal change and is evenintended to stimulate it. In most cases, however, change inlaw is the result of change in social reality. Indeed, whensocial reality changes, the law must change too. Just as changein social reality is the law of life, responsiveness to change insocial reality is the life of the law. It can be said that thehistory of law is the history of adapting the law to society’schanging needs. In both constitutional and statutoryinterpretation, the court is supposed to exercise discretion indetermining the proper relationship between the subjectiveand objective purposes of the law.

17. Cardozo acknowledges in his classic

“… no system of jus scriptum has been able to escapethe need of it.” and he elaborates:

“It is true that codes and statutes do not render theJudge superfluous, nor his work perfunctory and mechanical.There are gaps to be filled. … There are hardships and wrongsto be mitigated if not avoided. Interpretation is often spokenof as if it were nothing but the search and the discovery of ameaning which, however obscure and latent, had nonethelessa real and ascertainable pre-existence in the legislator’s mind.The process is, indeed, that at times, but it is often somethingmore. The ascertainment of intention may be the least of aJudge’s troubles in ascribing meaning to statute. …

Says Gray in his lectures:

“The fact is that the difficulties of so-calledinterpretation arise when the legislature has had no meaningat all; when the question which is raised on the statute neveroccurred to it; when what the Judges have to do is, not todetermine that the legislature did mean on point which waspresent to its mind, but to guess what it would have intendedon point not present to its mind, if the point had beenpresent.””

18. The court as the interpreter of law is supposed tosupply omissions, correct uncertainties, and harmonise resultswith justice through method of free decision — librerecherché scientifique i.e. “free scientific research”. We areof the opinion that there is non-rebuttable presumption thatthe legislature while making provision like Section 125Cr.P.C., to fulfil its constitutional duty in good faith, hadalways intended to give relief to the woman becoming “wife”under such circumstances. This approach is particularlyneeded while deciding the issues relating to gender justice.We already have examples of exemplary efforts in this regard.Journey from Shah Bano to Shabana Bano guaranteeingmaintenance rights to Muslim women is classical example.

23. The closer look of Section 125 Cr.P.C. itself indicates that theCourt after passing judgment or final order in the proceeding under Section125 Cr.P.C. does not become functus officio. The Section itself containsexpress provisions where order passed under Section 125 Cr.P.C. canbe cancelled or altered which is noticeable from Section 125(1), Section125(5) and Section 127 of Cr.P.C., which are to the following effect: -

“125(1). Order for maintenance of wives, children andparents. - (1) if any person having sufficient means neglects orrefuses to maintain-

(a) his wife, unable to maintain herself, or

(b) his legitimate or illegitimate minor child, whether married ornot, unable to maintain itself, or

(c) his legitimate or illegitimate child (not being marrieddaughter) who has attained majority, where such child is, byreason of any physical or mental abnormality or injury unableto maintain itself, or

(d) his father or mother, unable to maintain himself or herself,

Magistrate of the first class may, upon proof of such neglect orrefusal, order such person to make monthly allowance for themaintenance of his wife or such child, father or mother, at suchmonthly rate, as such Magistrate thinks fit, and to pay the same tosuch person as the Magistrate may from time to time direct:

Provided that the Magistrate may order the father of minorfemale child referred to in clause (b) to make such allowance,until she attains her majority, if the Magistrate is satisfied that thehusband of such minor female child, if married, is not possessedof sufficient means:

[Provided that the Magistrate may, during the pendency ofthe proceeding regarding monthly allowance for the maintenanceunder this sub-section, order such person to make monthlyallowance for the interim maintenance of his wife or such child,father or mother, and the expenses of such proceeding which theMagistrate considers reasonable, and to pay the same to suchperson as the Magistrate may from time to time direct:

Provided also that an application for monthly allowance forthe interim maintenance and expenses of proceeding under thesecond proviso shall, as far as possible, be disposed of withinsixty days from the date of the service of notice of the applicationto such person.]

Explanation. – For the purposes of this Chapter, -

(a)“minor” means person who, under the provisions of theIndian Majority Act, 1875(9 of 1875) is deemed not to haveattained his majority;

(b)“wife” includes woman who has been divorced by, or hasobtained divorce from, her husband and has not remarried.

125(5). On proof that any wife in whose favour an order hasbeen made under this section is living in adultery, or that withoutsufficient reason she refuses to live with her husband, or that theyare living separately by mutual consent, the Magistrate shall cancelthe order.

127.Alteration in allowance. – [(1) On proof of change in thecircumstances of any person, receiving, under section 125 amonthly allowance for the maintenance or interim maintenance,or ordered under the same section to pay monthly allowance forthe maintenance, or interim maintenance, to his wife, child, fatheror mother, as the case may be, the Magistrate may make suchalteration, as he thinks fit, in the allowance for the maintenance orthe interim maintenance, as the case may be.]

(2) Where it appears to the Magistrate that, in consequenceof any decision of competent Civil Court, any order made undersection 125 should be cancelled or varied, he shall cancel theorder or, as the case may be, vary the same accordingly.

(3) Where any order has been made under Section 125 infavour of woman who has been divorced by, or has obtained adivorce from, her husband, the Magistrate shall, if he is satisfiedthat –

(a) the woman has, after the date of such divorce, remarried,cancel such order as from the date of her remarriage.

(b) the woman has been divorced by her husband and that shehas received, whether before or after the date of the said order,the whole of the sum which, under any customary or personallaw applicable to the parties, was payable on such divorce,cancel such order –

i)in the case where such sum was paid before such order,from the date on which such order was made,

Aii) in any other case, from the date of expiry of the period, ifany, for which maintenance has been actually paid by thehusband to the woman;

(c) the woman has obtained divorce from her husband and thatshe had voluntarily surrendered her rights to [maintenance orBinterim maintenance, as the case may be] after her divorce, cancelthe order from the date thereof.

(4) At the time of making any decree for the recovery of anymaintenance or dowry by any person, to whom [monthly allowancefor the maintenance and interim maintenance or any of them hasCbeen ordered] to be paid under section 125, the Civil Court shalltake into account that sum which has been paid to, or recoveredby, such person [as monthly allowance for the maintenance andinterim maintenance or any of them, as the case may be, inpursuance of] the said.”

D24. In Section 125 Cr.P.C. uses the expression used is “as theMagistrate from time to time direct”. The use of expression ‘fromtime to time’ has purpose and meaning. It clearly contemplates that withregard to order passed under Section 125(1) Cr.P.C., the Magistratemay have to exercise jurisdiction from time to time. Use of expression‘from time to time’ in is exercise of jurisdiction of Magistrate in particularEcase. Advanced Law Lexicon by P.Ramanatha Aiyar, 3[rd] edition defines‘time to time’ as follows:-

“Time to time. As occasion arises”

25. The above Legislative Scheme indicates that Magistrate doesFnot become functus officio after passing an order under Section 125Cr.P.C., as and when occasion arises the Magistrate exercises thejurisdiction from time to time. By Section 125(5) Cr.P.C., Magistrate isexpressly empowered to cancel an order passed under Section 125(1)Cr.P.C. on fulfilment of certain conditions.

26. Section 127 Cr.P.C. also discloses the legislative intendmentGwhere the Magistrate is empowered to alter an order passed under Section125 Cr.P.C. Sub-Section (2) of Section 127 Cr.P.C. also empower theMagistrate to cancel or vary an order under Section 125. The LegislativeScheme as delineated by Sections 125 and 127 Cr.P.C. as noted aboveclearly enumerated the circumstances and incidents provided in the CodeH

of Criminal Procedure where Court passing judgment or final orderdisposing the case can alter or review the same. The embargo as containedin Section 362 is, thus, clearly relaxed in proceeding under Section 125Cr.P.C. as indicated above.

27. The submissions which have been pressed by the learnedcounsel for the appellant were founded only on embargo of Section 362and when embargo of Section 362 is expressly relaxed in proceedingunder Section 125 Cr.P.C., we are not persuaded to accept the submissionof counsel for the appellant that the Family Court was not entitled to setaside and cancel its order dated 06.05.2017 in facts and circumstancesof the present case.

28. As noted above, the proceeding under Section 125(1) Cr.P.C.was disposed of on settlement entered between the parties. The orderpassed by Family Court on 06.05.2017 is as follows: -

“Reconciliation efforts made in this Chamber of theunder signed. Parties have settled the matter amicably on theterms and conditions recorded separately in the court today.As per which, the respondent/Sanjay Kapoor shall payRs.25,000/- per month towards the maintenance of petitionerno.1 and 3 with effect from July 2015, out of which the arrearsof amount of maintenance up to May to April 2017 shall bepaid by him in the bank account of petitioner no.1 Chandanawithin six months form today and account of maintenance ofRs.25,000/- per month with effect from May 2017 shall bepaid by him in the bank account of Chandana month to monthon or before 10[th] day of each Calendar month. The partiesshall be bound by their statement. In view of the statementrecorded in the court today, the instant petition stands disposedof accordingly, and respondent/Sanjay Kapoor shall pay asum of Rs.25000/- per month to petitioner no.2 and 3 time totime, which shall be deposited directly in the bank account ofChandana. He shall clear the arrears of amount ofmaintenance @ Rs.25,000/- per month payable with effectfrom July 2015 to April 2017 within six months. In case ofnon-fulfilment of commitment made by Sanjeev Kapoor, thepetitioners shall be at liberty to proceed as per law. File, afterneedful, be consigned to records.

680SUPREME COURT REPORTS

[2020] 1 S.C.R.

B29. It has come on the record that after passing of the aboveorder on settlement, the appellant according to his own case has paidonly an amount of One Lakh Rupees, i.e. maintenance of four monthsafter May 2017. The arrears from July, 2015 to April 2017 has not beenpaid by the appellant within six months which was time allowed by theCourt. When the appellant did not honour its commitment under settlement,Ccan the wife be left in lurch by not able to press for grant of maintenanceon non-compliance by the appellant of the terms of settlement. Theanswer is obviously ‘No’. Section 125 Cr.P.C. has to be interpreted in amanner as to advance justice and to protect woman for whose benefitthe provisions have been engrafted.D30. We have noticed the judgment of this Court in Mahua Biswas(Smt)(supra) where this Court had activated the wife’s claim ofmaintenance to put her at same position before parties compromised inproceeding under Section 125 Cr.P.C. Although learned counsel for theappellant submits that the judgment of this Court in Mahua Biswa (Smt)Eis not applicable, we do not agree with the submission. In the abovecase, order was passed by the Magistrate giving maintenance of tokenamount against which she moved to the High Court for revision where itwas noticed that matrimonial case between the parties had stoodcompromised and one of the terms was that wife would go and live withher husband. The wife went to live with husband but later the spouse fellFapart. Husband contended that the orders of maintenance could not berevived as there had arisen fresh cause of action. The High Court hadset aside the order of maintenance leaving the wife to approach againthe Criminal Court for appropriate relief. This Court allowing the appealhad activated the wife’s claim of maintenance and put her in the sameGposition as before. The above judgment clearly indicates that this Courtadopted the Course which avoided injustice to the wife.

31. We, thus, are of the considered opinion that the order passedin present case by Family Court reviving the maintenance application ofthe wife under Section 125 Cr.P.C. by setting aside order dated 06.05.2017Hpassed on settlement is not hit by the embargo contained in Section 362

Cr.P.C. The submission of learned senior counsel for the appellant thatSection 362 Cr.P.C. prohibit the Magistrate to pass the order dated05.01.2019 cannot be accepted.

32. The High Court did not commit an error in rejecting theapplication filed by appellant under Section 482 Cr.P.C. The inherentpowers of the High Court given under Section 482 Cr.P.C. are to beexercised to secure the ends of justice. The Family Court in passingorder dated 05.01.2019 has done substantial justice in reviving themaintenance application of the wife which need no interference by theHigh Court in exercise of its jurisdiction under Section 482 Cr.P.C.

33. We, thus, do not find any merit in this appeal. The appeal isdismissed.

Devika Gujral

Appeal dismissed.