Code of Criminal Procedure, 1973: s.362 – Court not to alter judgment – In the instant case, the Family Court disposed of the maintenance petition under s.125 CrPC filed by respondent-wife directing appellant-husband to pay monthly maintenance and the parties to the dispute to file petition for divorce by mutual consent – Husband paid the maintenance for four months only – Respondentwife filed execution petition for enforcement of the order for payment of maintenance – Family Court rejected the execution petition holding that the order of maintenance was purely conditional and was subject to the fulfillment of respective obligations by the parties which they did not perform and, therefore, application under s.125(3) was not maintainable – Wife filed application for recalling the order passed in s.125 petition – Family Court restored the s.125 petition – Husband challenged the same by filing s.482 petition – High Court rejected the s.482 petition – On appeal, held: The Magistrate does not become functus officio after passing an order under s.125 – The section clearly contemplates that the Magistrate may have to exercise jurisdiction from time to time – The order passed in instant case by Family Court reviving the maintenance application of the wife under s.125 by setting aside order passed on settlement is not hit by the embargo contained in s.362 – Plea of husband that s.362 prohibited the Magistrate to restore the maintenance application was not tenable – High Court did not commit an error in rejecting the application under s.482 – The inherent powers of the High Court given under s.482 are to be exercised to secure the ends of justice – Family Court did substantial justice in reviving the maintenance application of the wife – High Court erred in interfering in exercise of its jurisdiction under s.482 Cr.P.C. – Family law – Maintenance – Code of Criminal Procedure, 1898 – s.369. Dismissing the appeal, the Court
HELD: 1. The Legislative Scheme as delineated by Section
369 of Code of Criminal Procedure, 1898, as well as Legislative Scheme as delineated by Section 362 of Code of Criminal Procedure, 1973 is one and the same. The embargo put on the criminal court to alter or review its judgment is with a purpose and object. The criminal justice delivery system does not cloth criminal court with power to alter or review the judgment or final order disposing the case except to correct the clerical or arithmetical error. After the judgment delivered by a criminal Court or passing final order disposing the case, the Court becomes functus officio and any mistake or glaring omission is left to be corrected only by appropriate forum in accordance with law. Section 362 Cr.P.C. begins with the word “save as otherwise provided by this Code or by any other law for the time being in force”. The above expression clearly means that rigour as contained in Section 362 Cr.P.C. is relaxed in following two conditions: - i) Save as otherwise provided by the Code of Criminal Procedure. ii) any other law for the time being in force. [Paras 18, 20][672-B-F]
2. The closer look of Section 125 Cr.P.C. itself indicates that the Court after passing judgment or final order in the proceeding under Section 125 Cr.P.C. does not become functus officio. The Section itself contains express provisions where order passed thereunder can be cancelled or altered which is noticeable from Section 125(1), Section 125(5) and Section 127 of Cr.P.C. In Section 125 Cr.P.C., the expression used is “as the Magistrate from time to time direct”. The use of expression ‘from time to time’ has purpose and meaning. It clearly contemplates that with regard to order passed under Section 125(1) Cr.P.C., the Magistrate may have to exercise jurisdiction from time to time. By Section 125(5) Cr.P.C., Magistrate is expressly empowered to cancel an order passed under Section 125(1) Cr.P.C. on fulfilment of certain conditions. Section 127 Cr.P.C. also discloses the legislative intendment where the Magistrate is empowered to 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 order under Section 125. The Legislative Scheme as delineated by Sections 125 and 127 Cr.P.C. clearly enumerated the circumstances and incidents provided in Cr.P.C. where Court passing a judgment or final order disposing the case can alter or review 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 on settlement, the appellant according to his own case paid maintenance of four months only. The arrears were not paid by the appellant within the time allowed by the Court. When the appellant did not honour its commitment under settlement, the wife cannot be left in lurch by not able to press for grant of maintenance on non-compliance by the appellant of the terms of settlement. Section 125 Cr.P.C. has to be interpreted in a manner as to advance justice and to protect a woman for whose benefit the 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 and another 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. Harbhajan Singh Bajwa & Others (2001) 1SCC 169 : [2000] 4 Suppl. SCR 313; State v. K.V. Rajendran and Others (2008) 8 SCC 673 : [2008] 12 SCR 1141 – referred to
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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