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2004 DIGILAW 44 (CHH)

P. Kavita Murthy v. P. Venkata Raman Murthy

2004-02-17

FAKHRUDDIN

body2004
ORDER Fakhruddin, J. 1. Heard. 2. The petitioner has filed this petition under Section 482 of Code of Criminal Procedure against the order dated 21-5-2003 passed by the learned 4th Additional Sessions Judge, Raipur arising out of the order passed by the Judicial Magistrate First Class, Raipur dated 12-2-2002 in Criminal Case No. 43/2001. 3. Briefly stated the facts are that the petitioner and the respondent were married on 3-11-1995 at Raipur. They lived together for some times, thereafter they are living separately since 3-12-1997. An application under Section 125 of the Cr.P.C. was filed by the applicant/wife on 1st June, 1998, which was decided on 24-12-1998. In the application the maintenance was claimed for Rs. 1500/- per month. This claim was contested by the respondent. The learned Magistrate considered the matter and came to the conclusion that the wife has no means and has been neglected, as such she was granted Rs. 500/- per month from the date of order as maintenance. Paras 17, 18 and 18 of the order are quoted below:-- 4. The said order was challenged by husband in Revision under Section 399 read with Section 397 of Cr.P.C. bearing Criminal Revision No. 48/99, however, the same was rejected on 27-03-2000. An application under Section 127(1) of Cr.P.C. for enhancement of amount to Rs. 3000/- was filed by the petitioner wife on 14-1-2000. Notice was issued to the other side which contested the same. In support of the application, the applicant examined herself as A.W. 1, one P. Shrikant Naidu as A.W. 2 and Bhikhram Chandra Jain as A.W. 3, an employee of Bhilai Steel Plant. The respondent husband did not adduce any evidence. Learned Magistrate rejected the application No. MJC 43/2001 under Section 127 of Cr.P.C. on 12-02-2002. 5. Before amendment in Sub-section (1) of Section 125 of the Act, it was read as under :-- "125. Order for maintenance of wives, children and parents.-- (1) If any person having sufficient means neglects or refuses to maintain-- (a) his wife, unable to maintain herself, or, (b) ............ (c) ............ (d) ............ 5. Before amendment in Sub-section (1) of Section 125 of the Act, it was read as under :-- "125. Order for maintenance of wives, children and parents.-- (1) If any person having sufficient means neglects or refuses to maintain-- (a) his wife, unable to maintain herself, or, (b) ............ (c) ............ (d) ............ a Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, father or other, at such monthly rate not exceeding five hundred rupees in the whole, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to time direct : After Amendment Act No. 10/1998 by the State of Madhya Pradesh, the amount of Rs. 500/- was enhanced to Rs. 3,000/- with effect from 29-5-1998. The Amendment Act No. 10/1998 reads as under :- Sub-section (1) of Section 125 of the Act for the words "five hundred rupees" the words "three thousand Rupees" shall be substituted." By Central Amendment Act No. 50/2001, the limit of Rs. 3,000/- has been abolished with effect from 24-9-2001 and accordingly after this amendment Sub-section (1) of Section 125 of Cr.P.C. reads as under :-- "125. Order for maintenance of wives, children and parents.-- (1) If any person having sufficient means neglects or refuses to maintain-- (e) his wife, unable to maintain herself, or, (f) ............ (g) ............ (h) ............ a Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of this wife or such child, father or mother, at such monthly rate, [* * *] as such Magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to time direct:......" Thus it is clear that under Sub-section (1) of Section 125 of Cr. P.C. originally enacted, the maximum amount could be awarded was Rs. 500/-. By Amendment Act No. 10 of 1998 by the State of Madhya Pradesh, the amount Rs. 500/- was enhanced to Rs. 3,000/- with effect from 20-5-1998. By Central Amendment Act No. 50 of 2001, the limit of Rs. 3,000/- has been abolished with effect from 24-9-2001. 6. Section 127 of Cr.P.C. deals with alteration in allowance. 500/-. By Amendment Act No. 10 of 1998 by the State of Madhya Pradesh, the amount Rs. 500/- was enhanced to Rs. 3,000/- with effect from 20-5-1998. By Central Amendment Act No. 50 of 2001, the limit of Rs. 3,000/- has been abolished with effect from 24-9-2001. 6. Section 127 of Cr.P.C. deals with alteration in allowance. Before Amendment Act No. 50 of 2001, Section 127(1) Cr.P.C. stood as under :-- "127. Alteration in allowance.-- (1) 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 : Provided that if he increases the allowance, the monthly rate of five hundred rupees in the whole shall he exceeded." By Central Amendment Act, 50 of 2001 amendment has been made in Section 127 of Cr.P.C. and provision by which embargo on monetary limit was there was been omitted. Section 127(1) after Amendment Act No. 50/2001 is as under :-- "127. Alteration in allowance.-- (1) On proof of a change in the circumstances of any person, receiving, under Section 125, a monthly allowance for the maintenance or interim maintenance, or ordered under the same section to pay a monthly allowance for the maintenance, or interim maintenance, to his wife, child, father or mother, as the case may be, the Magistrate may make such alteration, as he thinks fit, in the allowance for the maintenance or the interim maintenance, as the case may be." In view of the Amendment carried out by Central vide Act 50 of 2001, there is no monetary ceiling under Section 125 of Cr. PC. Likewise provision putting monetary ceiling has been abolished. 7. The application under Section 125 of the Cr.P.C. was filed on 1-6-1998. Amendment Act No. 10 of 1998 came into force from 20-5-1998 and the limit was enhanced to Rs. 3,000/-, the applicant moved an application under Section 127(1) of Cr.P.C. claiming maintenance of Rs. 3,000/- per month. PC. Likewise provision putting monetary ceiling has been abolished. 7. The application under Section 125 of the Cr.P.C. was filed on 1-6-1998. Amendment Act No. 10 of 1998 came into force from 20-5-1998 and the limit was enhanced to Rs. 3,000/-, the applicant moved an application under Section 127(1) of Cr.P.C. claiming maintenance of Rs. 3,000/- per month. It is to be noted that when order rejecting application under Section 127 Cr.P.C. was passed, the Amendment Act No. 50 of 2001 had already come into force abolishing the limit of amount to be paid under Section 125 Cr.P.C. and similarly Section 127(1) Cr.P.C. stood amended. The revision against order dated 12-02-2002 preferred before the Sessions Court on 10-6-2002. The leaned Sessions Judge transferred it to 2nd Addl. Sessions Judge and on 18-6-2002, the learned A.S.J. directed issuance of notice and called for the record. The order sheet dated 29-11-2002 shows that the case was directed to be listed for final arguments on 9-1-2003 and accordingly the case was listed on 9-1-2003. In between, an application under Section 5 of Limitation Act was filed. The case remained pending for want or record of lower Court, contended Amicus Curiae, Unnecessarily to drag on proceedings, cases remain pending for want of record. This practice has to be deprecated. Due care must be taken by respective Courts and specially the Presiding Officers. In the opinion of this Court, there should be no difficulty in requisitioning the record. Either, the requisition is not sent or the Record Keeper does not send the record to the requisitioning Court, it may be as the record is not deposited or even lying in copying section on one Court or other. It is the area where District & Sessions Judges have to pay proper attention by periodical check up and to ensure that for want of record Court proceedings should not remain pending and should not prolong unnecessarily. 8. In the instant case, the application for obtaining the certified copy was filed on 22-2-2002. The copy was supplied on 16-3-2002. The revision was admitted and listed for final hearing. The learned Sessions Judge, on 21-5-2003 in Para 4 of the order formulated the joint question as to whether delay in filing the petition deserves to be condoned and the order of the Magistrate dated 12-02-2002 is illegal and liable to be set aside as contrary to law. The revision was admitted and listed for final hearing. The learned Sessions Judge, on 21-5-2003 in Para 4 of the order formulated the joint question as to whether delay in filing the petition deserves to be condoned and the order of the Magistrate dated 12-02-2002 is illegal and liable to be set aside as contrary to law. Both the questions ought to have been separately formulated as if the delay is not condoned, the matter may be rejected as barred by the time without entering into merits. 9. Learned Revisional Court considered the question of limitation in Paragraphs 5, 6 and 7 and held that revision is barred by limitation and no case has been made out for condonation of delay. The petitioner appearing in person contended that Revisional Court committed grave illegality in rejecting the Revision as barred by time. The Court ought to have condoned delay under the facts and circumstances of the case. Shri Yadav, learned Counsel appearing for the respondent being pointedly asked about the question of limitation, he states that it is the discretion of the Court and this Court may decide it. 10. In the instant case, the revision was admitted for hearing. The delay is alleged to have occurred because of mistake in calculation by the Counsel. A party should not suffer because of mistake of the Counsel. Section 5 of the Limitation Act is quoted below :- "5. Extension of prescribed period in certain cases.-- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908), may be admitted after the prescribed period if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period." 11. So far as delay is concerned, applicant relied on a decision in Collector Land Acquisition, Anantnag and Anr. vs. Mst. Katiji and Ors., reported in AIR 1987 SC 1353. Paras 2 to 5 of the judgment are relevant and quoted below :-- "2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties. 3. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties. 3. 'Every day's delay must be explained' does not mean that a pedantic approach should be made. Why not every hours delay, every second's delay? The doctrine must be applied in a rational common sense pragmatic manner. 4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay. 5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk." 12. This Court has considered the matter and is of the opinion that there was sufficient cause for condonation of delay and the delay ought to have been condoned. The Revisional Court was not justified in rejecting. It is condoned. 13. Petitioner submitted that in the instant case, the learned Sessions Judge though found that the delay cannot be condoned, even though proceeded ahead and discussed the matter on merits and passed unwarranted remarks against her in para 9. The applicant took pains to specially mention Para 9 which reads as under :-- 14. The applicant submitted that the learned Sessions Judge has read which is not at all mentioned in her application under Section 127 of Cr. P.C. The Counsel for respondent read and re-read but he could not demonstrate such averments in the application. Learned Amicus Curiae referred to the application and contended that remarks are totally unwarranted. It is one page application and apt to reproduce :-- 15. The learned Revisional Court has observed that which is not alleged at all in the application. The matter is about matrimonial dispute. Maintenance has been granted. Question is about enhancement or otherwise. The Court has to be cautious in making observations. The allegations of sair sapata has not been made by any party. These remarks are not at all warranted and as such the remarks are expunged under Section 482 Cr.P.C. 16. The matter is about matrimonial dispute. Maintenance has been granted. Question is about enhancement or otherwise. The Court has to be cautious in making observations. The allegations of sair sapata has not been made by any party. These remarks are not at all warranted and as such the remarks are expunged under Section 482 Cr.P.C. 16. Having considered the facts and circumstances of the case and material on record, and in view of the discussions made hereinabove, in the opinion of this Court, the illegality is there and the impugned order deserves to be set-aside and it is accordingly set aside and the matter is remanded. The matter shall be heard afresh by Sessions Judge as early as possible. The parties pray that date may be given by this Court. They jointly propose 03-03-2004 for learning. Notice need to be issued. The Sessions Judge to hear the matter himself and decide the same within one month from 3-3-2004. 17. Before parting, this Court appreciates the valuable assistance rendered by the learned Amicus Curiae.