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2002 DIGILAW 711 (CAL)

SWAPAN KR. SINGHA v. SOVA RANI SINGHA

2002-12-03

MALAY KUMAR BASU

body2002
MALAY KUMAR BASU, J. ( 1 ) THIS revisional application under section 401 read with Section 482 of the Criminal Procedure Code has been filed by Sri Swapan Kr. Singha (hereinafter referred to as the petitioner) and has been directed against the order dated 3rd July. 2001 passed by the learned Sessions Judge. Nadia in Criminal Motion No. 48 of 2001 affirming the order of maintenance passed by the learned Chief judicial Magistrate. Nadia in Misc. Case No. 829 (IV) 1997 enhancing the amount of maintenance being paid by the petitioner from Rs. 1000/- to rs. 3000/- per month (Rs. 1500/- to each daughter ). ( 2 ) THE relevant facts may be summarised as follows. Admittedly the mother of Sonali and Shrabani, the two daughters of the petitioner was the married wife of the petitioner. She having died leaving behind those minor two daughters, the petitioner remarried for the purpose of ensuring the upbringing of the said daughters. But the mother-in-law of the petitioner, Sova Rani Singha. the present O. P. took those two girls to her house and did not allow them to return to the petitioner's house in spite of the petitioner's repeated attempts at bringing back his children. Thereafter, the said Sova Rani Singha filed a petition under Section 125 criminal Procedure Code claiming maintenance for the children, her two grand-daughters. In that petition being Misc. Case No. 38 (IV) 1997. the learned Chief Judicial Magistrate passed an order on the basis of a petition of compromise between the parties directing the petitioner to pay rs. 1000/- every month to the said Sm. Singha towards maintenance of his two daughters. This order was made on 3rd June, 1997. But on 24th november i. e. , only five months after that very order was passed the O. P. filed a petition again under Section 127 Criminal Procedure Code praying for an order enhancing the said amount of maintenance on the ground that this amount was highly inadequate considering the increased cost of living and the price index. That petition was disposed of by the learned magistrate after hearing both parties and considering the evidences on record. The learned Magistrate allowed that petition enhancing the amount of maintenance from Rs. 1000/- to Rs. 3000/- by the impugned order. That petition was disposed of by the learned magistrate after hearing both parties and considering the evidences on record. The learned Magistrate allowed that petition enhancing the amount of maintenance from Rs. 1000/- to Rs. 3000/- by the impugned order. Being aggrieved by that order the petitioner filed a revisional application before the Court of Sessions challenging that order of the learned C. J. M. as erroneous and unjustified. But the learned Sessions Judge after hearing both sides and considering the materials on record dismissed that criminal Motion and affirmed the order of the learned Magistrate in question. Being aggrieved thereby again he has preferred the present revisional application. ( 3 ) THE contention of the petitioner is that in the evidence of Sova Rani singha there has been a clear statement made by her to the effect that both her grand-daughters are major, but the Courts below fell into error by not taking into consideration the fact that in view of such admission the said daughters of the petitioner have forfeited their entitlement under the law to get any maintenance from the petitioner-father. According to mr. Dastoor, a major son or daughter can claim maintenance under the provisions of Section 125, Criminal Procedure Code only when he or she is physically handicapped or mentally challenged, but no such case is made out here. Secondly, Sova Rani Singha who filed the petition under section 125 Criminal Procedure Code on behalf of the said two daughters as their guardian can no more have any locus standi to represent her grand-daughters who have according to her own admission attained majority. The third contention of Mr Dastoor, the learned Counsel, of the present petitioner is that the Courts below did not take into account the circumstances that such a prayer for enhancement was being made only within five months from the date on which the order of awarding of maintenance as per the aggrieved rate was passed, Mr. Dastoor contends that there could not be any justification for enhancement of the maintenance within such a short time from the date of the first order. According to him. Dastoor contends that there could not be any justification for enhancement of the maintenance within such a short time from the date of the first order. According to him. unless some drastically changed circumstance takes place such a big leap in the claim for maintenance is unthinkable but the petitioner Sova Rani Singha failed to adduce any evidence to show any such change in her circumstance and as a result such a claim for increased rate of maintenance falls to the ground. Mr. Dastoor compares the provisions in this regard as they occur in the present Criminal procedure Code with those of Section 488 of the old Code whereunder the word "child" only unaccompanied by the word 'minor' occurred and he argues there the legislature did not intend to limit the age of the child and irrespective of its age a son or daughter who was a student or unemployed could claim maintenance from the father and in respect of this argument he refers to the decision reported in AIR 1970 SC 446 . According to him, the incorporation of the word 'minor' is thus extremely significant and after a child crosses the age of minority and attains the age of majority, he or she cannot be entitled to any maintenance from the father and the only exception to this would be available, if it can be shown that he or she suffers from any physical or mental infirmity and is unable to maintain herself or himself. ( 4 ) MISS Nandi, the learned Advocate for the O. P. strongly opposes the above contentions and at the very outset she argues that this application under Section 482 cannot be legally maintainable for the reason that in view of Section 397 (3) Criminal Procedure Code a second revision by the same person is barred and being unable to file a revisional application under that Section they have resorted to Section 482 invoking inherent jurisdiction of this Court with the ulterior motive to evade the prohibition imposed under the Section 397 (3) of the Code. But since after a host of decisions came from the Apex Court in recent years (cited hereunder)the position in this regard has become somewhat liberal and marked with a more humane approach and a balance appears to have been struck. These decisions are 1997 SCC (Cri) 544 and 1999 SCC (Cri) 77. But since after a host of decisions came from the Apex Court in recent years (cited hereunder)the position in this regard has become somewhat liberal and marked with a more humane approach and a balance appears to have been struck. These decisions are 1997 SCC (Cri) 544 and 1999 SCC (Cri) 77. According to this these rulings there cannot be doubt that the High Court has no power to entertain a second revision in view of Section 397 (3) Criminal procedure Code against concurrent findings of fact of both the Courts below, but Their Lordships keeping in view the implication of the expression 'nothing in this Code' occurring in the beginning of Section 482 Criminal Procedure Code have been of the opinion that in view thereof the situation will. be saved and though a second revision under Section 397 Criminal Procedure Code cannot be tenable, such an impugned order of the Sessions Judge passed in exercise of his power of revision can be subjected to the scrutiny of the High Count under Section 462 Criminal procedure Code if certain conditions are fulfilled, namely, that such order has entailed flagrant miscarriage of justice or has been the product of some gross error of law or perversity in the appreciation of evidence. Of course, reappreciation of evidence as is done in case of ordinary revision will not be permissible in a petition under Section 482 Criminal procedure Code. ( 5 ) SO the latest settled position in this regard is that if a case falls within the fold of Section 482, the prohibition under Sections 397 and 399 are not attracted and if an order is palpably an abuse of the process of the Court or manifestly illegal, irregular or improper or perverse or without jurisdiction, then certainly it requires interference to secure the ends of Justice and the provisions of Section 482 can very well be invoked by the High Court even in such a case where the petitioner's case has suffered dismissal in both the Courts below. Therefore, the present petition under section 482 Criminal Procedure Code is not found to be untenable in taw. However the putting of Section 482 alongwith Section 401 is wrong. Because section 401 is a continuation of Section 397 of the Code, when the petition is a revisional application pure and simple. Therefore, the present petition under section 482 Criminal Procedure Code is not found to be untenable in taw. However the putting of Section 482 alongwith Section 401 is wrong. Because section 401 is a continuation of Section 397 of the Code, when the petition is a revisional application pure and simple. But when it is one under Section 482 of the Code invoking inherent jurisdiction of this Court Section 401 has no place and cannot be mixed up with it. ( 6 ) LET me now take up the contentions of Mr. Dastoor challenging the impugned order one by one. In the first place, as regards his argument that the petition under Section 127 itself was not maintainable for the reason that the two daughters in question having become major as per the evidence of the petitioner. Sova Rani herself, the latter could not file the petition on their behalf as their guardian and such a petition. if at all, ought to have been filed by themselves. This argument however will not be acceptable. It has been nowhere the case of the O. P. /father (the present petitioner) that his daughters have attained the age of majority nor be has given their age anywhere. There is absolutely no evidence on the question of their age or date of birth. The PW. 1, Sova rani Singha has only stated that her grand-daughter are major. The word 'major' is a legal term which has legal implication, A witness who is not a legal expert cannot be expected to use this term. Such, a witness is supposed to give the age or date of birth of the incumbent and on the basis of that it is for the Court or the legal expert to draw the conclusion as to whether the person concerned has attained majority or not. When a layman like the PW. 1 utters the word 'major', it is not clear whether she has any knowledge about the definition of such an expression, that is to say, at what age a person can be said to have attained majority. To soy that a particular Person is a 'major' is not to make statement of facts, but is expressing an opinion. Statement of fact will be there when the witness only gives the date of birth or age of that particular person. To soy that a particular Person is a 'major' is not to make statement of facts, but is expressing an opinion. Statement of fact will be there when the witness only gives the date of birth or age of that particular person. That is why an opinion given by an expert only is acceptable as a piece of evidence and opinion of layman-witness is not recognized under the law of Evidence as a piece of valid evidence on a subject which requires expert's opinion. Therefore, the mere statement of the PW. 1 that her grand-daughters have become major is of little significance in the absence of specific evidence on the age of the said two girls or their dates of birth. Mr. Dastoor draws my attention to the age of the elder daughter (PW. 2) as taken down in the column meant for writing the age of a deponent in the form for Recording Deposition in its second line where her age has been given as 20 years. But this entry in the form of Deposition is no part of the statement of the witness on oath which is recorded by the Presiding Officer. On the other hand, the said entry showing the age of the witness is laid down by the Bench clerk and it has got no sanctity or enforceability, as a sworn statement of the witness has got. This witness, PW. 2, has stated in her cross-examination to the effect that she is at present a 'major', but such a statement cannot have any legal value or acceptability for the same reason discussed above. Unless such a statement is accompanied by a following statement giving the age at which one attains majority under the law, such opinion expressed by him or her is of no avail. The same reasoning will be applicable in respect of the younger daughter (PW. 3) in whose case, also in the Form of Deposition, the relevant column has been filled in by the Bench Clerk of the Court concerned showing her age at that time at 18 years. ( 7 ) THE second contention of Mr. The same reasoning will be applicable in respect of the younger daughter (PW. 3) in whose case, also in the Form of Deposition, the relevant column has been filled in by the Bench Clerk of the Court concerned showing her age at that time at 18 years. ( 7 ) THE second contention of Mr. Dastoor is that both the daughters having attained majority and none of them having been described as physically handicapped or mentally infirm are not entitled to get any maintenance at all under the provisions of Section 125 Criminal Procedure code, but this contention is also not acceptable. He cannot raise such a point before this Court or before the Revisional Court below or even before the Trial Court (infect he has not raised any such point there)while contesting such a petition under Section 127 Criminal Procedure code filed on behalf of the daughters, without filing a similar petition under that Section which has specifically provided for such relief. In order to bring home such a point he was to file a petition under Section 127 of the Code which runs as follows: "on proof of a change in the circumstances of any person, receiving under Section 125 a monthly allowance, or ordered under the same section to pay a monthly allowance to his wife, child, father or mother, as the case may be. the Magistrate may make such alteration in the allowance as he thinks fit. " thus according to this Section any change in the circumstances of the party who receives or pays maintenance-allowance can be made a ground for an alteration in the order and such a party has to file a petition under this Section and has to adduce evidence in order to prove the alleged change in the circumstances. Here at the most the father-petitioner's remedy, if at all, might lie in filing an application under section 127 Criminal Procedure Code narrating the change In the circumstances as is being alleged herein. But, as we have seen, no such petition has been filed and no such proof in support of the contention has been furnished. On the other hand, what has happened here, he has agreed by way oi compromise to pay a sum of Rs. But, as we have seen, no such petition has been filed and no such proof in support of the contention has been furnished. On the other hand, what has happened here, he has agreed by way oi compromise to pay a sum of Rs. 1000/- every month to the petitioner on account of maintenance of his two daughters without raising any question as to the entitlement of the daughters to receive such a benefit on the ground of attaining majority. ( 8 ) THE third contention of Mr. Dastoor is that the petitioner before the Trial Court failed to discharge her onus of proving the happening of any drastically changed circumstance which could have led them to come before the Court with such a prayer for enhancement within a short span of time, namely, about five months from the date of which they agreed to the rate of maintenance as awarded by the Court in its original order under Section 125 Criminal Procedure Code. So far as this point is concerned, it should be impressed upon that this is a question of fact and in this petition under Section 482 Criminal Procedure Code this Court has no scope to enter into such a question on which there has been concurrent findings given by both the Courts below unless such findings are shown to be suffering from perversity or to be grossly shocking to the conscience. On an analysis of the impugned order I find that the court below has taken into account all the relevant factors which have come into the evidence, namely, the income of the O. P. father and the necessities of the two daughters, the elder one being a student of B. A. class and also learning music and computer courses, while the younger one being a student of Class IX of a school. The Courts below have also considered the probable cost of living index and the rising prices of essential commodities in addition to the increasing quantum of expenditure on education of the two in order to come to their findings as to the justifiability of the enhancement in the amount of maintenance from Rs. 1000/- to Rs. 3000/- for two heads both of whom are receiving education in different institutions. Such enhancement is not considered to be unreasonably high in the background mentioned above. 1000/- to Rs. 3000/- for two heads both of whom are receiving education in different institutions. Such enhancement is not considered to be unreasonably high in the background mentioned above. If the reasonableness of granting maintenance for them is not in question, the mere fact that after only six months they have made such a prayer for enhancement does make little difference, it should be remembered that it is the old grandmother who has taken the responsibility of providing all the educational facilities to her two motherless grand-daughters in addition to fulfilling their daily needs of life regularly. When the O. P. father does not appear to be financially incapable of affording such an amount by way of maintenance, the simple fact that the prayer for enhancement was lodged only after 5/6 months from the date of original order should not be taken as a ground for negating such a claim, when otherwise, judged from all oilier stand-points, such a claim for an enhancement appears to be just, proper and humanitarian, keeping in mind the principles and social welfare policies governing the provisions of Section 125 Criminal Procedure Code, namely, the prevention of vagrancy and destitution of the members of the weaker sex. ( 9 ) MR. DASTOOR has strenuoulsy contended that the question of granting the relief under Section 125 Criminal Procedure Code and the provisions of Section 18 of the Hindu Adoption and Women's Maintenance Act should not be mixed up. He submits this by way of giving a reply to the reference given by Miss Nandi to AIR 1968 Patna 139. According to him, the provisions of these two enactments cannot go hand hand-in-hand because in the Code the disqualification is much narrower, but the amount is limited while in case of Section 18 of the said Act, disqualifications are larger but the amount awardable is on the higher side. According to him again, the decisions reported in AIR 1997 Cr. L. J. 397, or, for that matter, air 1959 C. Cr. L. R. 2001 cannot be relied upon because what was applied in case of a Muslim cannot be applicable to a Hindu girl in respect of a question whether such a girl can be entitled to get maintenance from her father till her marriage irrespective of her age. L. J. 397, or, for that matter, air 1959 C. Cr. L. R. 2001 cannot be relied upon because what was applied in case of a Muslim cannot be applicable to a Hindu girl in respect of a question whether such a girl can be entitled to get maintenance from her father till her marriage irrespective of her age. Bui this question has been set at rest by a very recent ruling of the Apex Court reported in 2002 scc (Cri) 1147 wherein Their Lordships have extended such a benefit in favour of a Hindu girl who having crossed her age of minority was found entitled to continue to get the benefit of maintenance in view of the provisions of Section 18 of the Hindu Adoption and Women's Maintenance Act and their Lordships held that she need not file a fresh application under that Act and would be entitled to receive the amount of maintenance in the petition under Section 125 Criminal Procedure Code in order to avoid multiplicity of proceeding. Mr. Dastoor's contention is that such a finding was arrived at by Their Lordships of the Apex Court only on the ground that if she was compelled to file a petition under the Hindu adoption and Women's Maintenance Act, there would be unnecessary multiplicity of proceeding and in order to avoid possibility that such an order was passed in the circumstances where the girl had already been receiving maintenance during her minority and the problem arose only when she attained majority. According to Mr. Dastoor, this element of continuity which was in existence in the case under reference is lacking here since the petition on behalf of the girl has been filed when she has attained the majorily and in view of such an exigency the said ruling cannot be attracted here. I am unable to subscribe to such a view. Here also both the girls are admittedly in receipt of the maintenance amount and it is not the case of the petitioner grandmother that they having attained majority may be given the benefit afresh, but, on the contrary, she has made the prayer for enhancement of maintenance amount while already in receipt of the same regularly. Here also both the girls are admittedly in receipt of the maintenance amount and it is not the case of the petitioner grandmother that they having attained majority may be given the benefit afresh, but, on the contrary, she has made the prayer for enhancement of maintenance amount while already in receipt of the same regularly. ( 10 ) SO 1 do not find any reason why the principles enunciated in abovementioned ruling of the Apex Court should not be applied to our present case, the tacts and circumstances of which are almost identical. It should be borne in mind that the ultimate object of such welfare legislations is to do away with or prevent vagrancy and destitution of the female folk. The salutary revisions will remain a force, if technical considerations are allowed to create an impediment to the attainment of such a goal. ( 11 ) SO, I am unable to accept the contentions of Mr. Dastoor and accordingly, the revisional application being found without any merit is dismissed. Interim order, if any, be vacated. ( 12 ) XEROX certified copies, if applied for by and party, may be supplied without delay. Revisional application dismissed.