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2002 DIGILAW 836 (PNJ)

S. K. Suri v. Komal And Another

2002-08-23

HEMANT GUPTA

body2002
Judgment Hemant Gupta, J. 1. This order shall dispose of Criminal Revision Nos. 1075 and 1076 of 1988 arising out of proceedings initiated by the wife under Section 125 of the Code of Criminal Procedure, 1973 (hereinafter referred to as Code). 2. The challenge in Revision No. 1075 of 1988 is to the order dated 6.7.1988 passed by the trial Magistrate refusing to dismiss the petition in default on account of absence of the wife before the trial Court, whereas in revision petition No. 1076 of 1988 the challenge is to the order dated 20.8.1988 when the wife has not again appeared and the Court granted time for appearance of the wife on the next date of hearing. 3. Whether it is incumbent upon the court to discharge or acquit the respondent in the absence of the complaint in proceedings under Section 125 Cr.P.C. in terms of sections 249 and 256 of the Code of Criminal Procedure is the material question which arises for determination in these petitions. To determine such question it is necessary to examine whether the proceedings under Section 125 Cr.P.C. are proceedings for punishment of an offence in respect of which the respondent is either discharged or acquitted in terms of aforesaid provisions. 4. In order to appreciate the nature and scope of proceedings under Section 125 Cr.P.C., it would be necessary to examine the purpose, history and scope and nature of the proceedings. 5-6 Prior to the commencement of the Code, the equivalent provisions under the Old Code were contained in Section 488 Cr.P.C. It has been held in Smt. Chinta Mani v. Jagat Singh, 1968(17) P.L.R. (Delhi) 313 that the proceedings under Section 488, Criminal Procedure Code are not proceedings for punishing an accused person for the commission of an offence. Provisions of Section 488 are not penal but are merely intended to enforce a duty, a default of which is harmful to those entitled to be maintained and also to the society as a whole. It was further held by His Lordship : "I must point out that proceedings under Section 488, Cr.P.C. are not proceedings for punishing an accused person for the commission of an offence because neglect or refusal to maintain a wife or a child is not an offence and an application under this section is not a complaint under the Criminal Procedure Code. The husband, it may be remembered, is also entitled to appear as a witness and make his statement on oath, which is normally not the case in a criminal trial of an accused person unless he himself offers to appear as a witness in his own favour. And then, the provisions of Section 488 are not penal but are merely intended to enforce a duty, a default of which is harmful to those entitled to be maintained and also to the society as a whole. The approach of the lower court, therefore, to expect every ingredient to be established beyond the possibility of a reasonable doubt is clearly misconceived. This section provides for a speedy remedy for discarded wives and deserted children who cannot support themselves and, therefore, this remedy tends to keep such helpless persons away from vagrancy. Power is conferred on Magistrates because a civil litigation is normally prolonged and speedy relief may not be available in those proceedings so as to serve the purpose of keeping them away from both starvation and vagrancy." 7. Honble Supreme Court in Bhagwan Dutt v. Smt. Kamla Devi and another, AIR 1975 Supreme Court 83 : 1975 Criminal Law Journal 40 held that the provisions of Sections 488, 489 and 490 are intended to fulfil a social purpose. Their object is to compel a man to perform the moral obligation which he owes to society in respect of his wife and children. The provisions provide a simple, speedy but limited relief. It would be beneficial to reproduce para No. 11 of this report : "Sections 488, 489 and 490 constitute one family. They have been grouped together in Chapter XXXVI of the Code of 1898 under the caption, "Of the maintenance of wives and children". This Chapter, in the words of Sir James Fitzstephen, provides "a mode of preventing vagrancy, or at least of preventing its consequences". These provisions are intended to fulfil a social purpose. Their object is to compel a man to perform the moral obligation which he owes to society in respect of his wife and children. By providing a simple, speedy but limited relief, the seek to ensure that the neglected wife and children are not left beggared and destituted on the scrap-heap of society and thereby driven to a life of vagrancy, immorality and crime for their subsistence. By providing a simple, speedy but limited relief, the seek to ensure that the neglected wife and children are not left beggared and destituted on the scrap-heap of society and thereby driven to a life of vagrancy, immorality and crime for their subsistence. Thus, Section 488 is not intended to provide for a full and final determination of the status and personal rights of the parties. The jurisdiction conferred by the section on the Magistrate is more in the nature of a preventive, rather than a remedial jurisdiction, it is certainly not punitive. As pointed out in Thompsons case, 6 NWP 205 "the scope of the Chapter XXXVI is limited and the Magistrate cannot, except as thereunder provided, usurp the jurisdiction in matrimonial disputes possessed by the Civil Courts. Sub-section (2) of Section 489 expressly makes orders passed under Chapter XXXVI of the Code subject to any final adjudication that may be made by a Civil Court between the parties regarding their status and civil rights". 8. Earlier a question had arisen under the provisions of the old Code whether a person against whom proceedings are taken under Section 488 Cr.P.C. falls under the category of accused. It was held by the Division of Lahore High Court in Mehr Khan v. Bakat Bhari, AIR 1929 Lahore 32 that the term `offence as defined in Section 4(o) of the old Code (now corresponding to Section 2(n) of the Code) that an application under Section 488 of the old Code is not a complaint of an offence as the neglect or refusal to maintain the wife or a child does not involve the question of any punishment to be awarded under that section. That section is merely intended to enforce the legal obligation in a summary manner of the husband or the father with regard to his wife or child. It was held that the person against whom action is taken under Section 488 does not fall in the category of accused. It would be advantageous to reproduce the following observations of the Court : "The question then is if the person concerned comes within the definition of the "accused". It was held that the person against whom action is taken under Section 488 does not fall in the category of accused. It would be advantageous to reproduce the following observations of the Court : "The question then is if the person concerned comes within the definition of the "accused". Ordinarily this expression is used in respect of a person who is being tried for an offence, which terms is defined in Section 4(o), Criminal P.C. to mean any act or omission made punishable by any law for the time being in force and also to include any act in respect of which a complaint may be made under Section 20, Cattle Trespass Act of 1851. It would thus appear that an application under Section 488, Criminal P.C., is not a complaint of "an offence" as the neglect or refusal to maintain the wife or the child does not involve the question of any punishment to be awarded under that Section. That section is merely intended to enforce the legal obligation in a summary manner of the husband or the father with regard to his wife or child, respectively. Prima facie, therefore, Section 342, Criminal P.C., does not apply to proceedings under Section 488, Criminal P.C." It was further held that : "A consideration of the three sections mentioned above clearly shows that the proceedings under Section 488, Criminal P.C. are not strictly speaking criminal proceedings except in the sense that they are taken under "the provisions of the Criminal Procedure Code, they are, if I may use that term, quasi criminal proceedings partaking more of civil than of criminal character as they are intended to enforce a civil liability of the husband or the other. The authorities cited at the Bar that it is incumbent on the Magistrate to examine the accused in a summons case under Section 342, Criminal P.C. have in my opinion no bearing on the present question, because I hold that the proceedings under Section 488, Criminal P.C. do not constitute a summons case." 9. Same view was taken by a Division Bench of Bombay High Court In Re : Vithaldas Bhurabhai, AIR 1928 Bombay 346 and Karnail Singh v. Mst. Bachan Kaur, AIR 1955 Punjab 26. 10. Thus, Section 125 of the Code is meant to achieve a social purpose. The object is to prevent vagrancy and destitution. Same view was taken by a Division Bench of Bombay High Court In Re : Vithaldas Bhurabhai, AIR 1928 Bombay 346 and Karnail Singh v. Mst. Bachan Kaur, AIR 1955 Punjab 26. 10. Thus, Section 125 of the Code is meant to achieve a social purpose. The object is to prevent vagrancy and destitution. It provides a speedy remedy for the supply of food, clothing and shelter to the deserted wife. Provisions of Section 125 in the Code are measure of social justice intended to protect women and children. 11. The proceedings for the grant of maintenance to (sic) are mitigate the hardships of the wife or child. Such summary procedure was incorporated in the Code of Criminal Procedure to provide teeth to the Magistrate for grant of maintenance at any early date and to seek enforcement of orders passed in effective manner. Merely because an application for grant of maintenance is before the criminal Court, it cannot be said that the procedure applicable to such proceedings is that of a complaint where the presence of the complainant would be necessary on each and every date of hearing. In fact, the insistence of presence of the suffering applicant would negate the very purpose of the provisions of the grant of maintenance. 12. In the present case, the respondent instead of paying maintenance to his wife has again gone to the extent of seeking dismissal in default of a petition for grant of maintenance under Section 125 Cr.P.C. on account of her absence from the Court. The order passed by the learned Magistrate is legal, proper, justified and in fact it was obligatory on the part of the Magistrate to exempt the presence of the applicant in such proceedings for the grant of maintenance under Section 125 Cr.P.C. There is no failure of justice when the Magistrate adjourns the case for the presence of complainant. 13. Recently, the Honble Supreme Court has occasion to consider the provisions of Sections 205 and 251 of the Code regarding the attendance of accused in Bhaskar Industries Ltd. v. Bhwani Denim & Apparels Ltd. and others, 2001(4) RCR(Crl.) 137 : (2001)7 Supreme Court Cases 401 in the proceedings under Section 138 of the Negotiable Instruments Act. While interpreting these provisions, the Supreme Court held that the Magistrate can allow an accused to make even the first appearance through a counsel. While interpreting these provisions, the Supreme Court held that the Magistrate can allow an accused to make even the first appearance through a counsel. The Magistrate is empowered to record the plea of the accused even when his counsel makes such plea on behalf of the accused in a case where the personal appearance of the accused is dispensed with. 14. The Court held that the Magistrate has judicial discretion to dispense with the personal appearance of the accused either throughout or at any particular stage of proceedings in a summons case, if the Magistrate finds that insistence of his personal presence would itself inflict enormous suffering or tribulations on him, and the comparative advantage would be less. 15. However, in a case of grant of maintenance physical presence of the applicant is not necessary as the interests of an applicant can be adequately represented by an Advocate and personal presence would itself inflict enormous suffering or tribulations on the applicant. In fact, insistence of personal appearance of an applicant in the proceedings under Section 125 of the Code increases hardships to the applicant which is not the purpose of the provisions of the Code. 16. Thus, I am of the opinion that the proceedings under Section 125 of the Code, are not the proceedings for punishment of an offence which results into either discharge or acquittal of the respondent. Therefore, the absence of the applicant in proceedings under Section 125 of the Code does not necessarily implies discharge of the respondent as contemplated under Section 249 of the Code or acquittal under Section 256 of the Code. Such interpretation is in view of the provisions of law and the purpose and objective of grant of maintenance under Section 125 of the Code. Consequently, both the revision petitions are dismissed. Revisions dismissed.