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2006 DIGILAW 994 (GAU)

Potsangbam Apathoi @ Tondon v. Pangeijam

2006-11-14

T.NANDAKUMAR SINGH

body2006
JUDGMENT T.N.K. Singh, J. 1. Heard Mr. N. Ibotombi, learned Counsel appearing for the Petitioner/Respondent and also Mr. L. Padmanav, learned Counsel appearing for the Respondents/Petitioners. 2. By this Petition, the Petitioner is challenging the judgment and order of the learned Family Court dated 25.2.2006 passed in Cril (M) Case No. 43 of 2005 wherein and where-under the learned Family Court ordered that the: Respondent husband to pay a sum of Rs. 2,500/- (Rupees two thousand and five hundred only) per mensem to the Petitioner (wife) being the monthly maintenance allowance of both the Petitioners and he is to pay the amount on or before 10th of every calendar month w.e.f. the institution of the case, i.e. 17.6.2005 with a direction that the Petitioners should have equal shares. 3. The concise fact leading to the filing of the present Criminal Revision Petition is that the Respondents/Petitioners filed an application under Section 125 of the Code of Criminal Procedure before the learned Family Court. The application filed by the Respondents/Petitioners are based on the fact that the Respondent/Petitioner No. 1, Smti. Pangeijam (Ningol) Potsangbam (Ongbi) Chanuleima is the legally married wife of the Petitioner/Respondent, Shri Potsangbam Apathoi @ Tondon. It is also alleged that of their wedlock the Respondent/Petitioner No. 2, Potsangbam Nicky was born. The Respondent/Petitioner No. 2, P. Nicky is now aged about 6 (six) years. It is also alleged that the Respondent/Petitioner No. 1 was forcibly thrown out from the matrimonial home by the Petitioner/Respondent sometime in the month of February, 2004. 4. It is said that while the Respondent/Petitioner was residing at her parental house, she got information sometime in the 2nd week of October, 2004 that the Petitioner/Respondent eloped with one lady, namely; Miss Babina from Lamphel Sanakeithel. It is, further alleged that thereafter the Respondent/Petitioner No. 1 (wife had been badly treated by the Petitioner/Respondent (husband) and Respondent/Petitioners were not at all allowed to live in the matrimonial home. 5. Once again in the night of 22nd February, 2005 the Respondent/Petitioner No. 1 got an information that the Petitioner/Respondent was going to marry with one Miss Thounaojam Babita Devi of Kwakeithel Moirang Purel Leikai on 25.2.2005. On getting such information, it is, alleged that the Respondents/Petitioners approached the competent Civil Court for restraining the proposed marriage and it is further alleged that the court was pleased to pass necessary injunctive order dated 24.2.2005. On getting such information, it is, alleged that the Respondents/Petitioners approached the competent Civil Court for restraining the proposed marriage and it is further alleged that the court was pleased to pass necessary injunctive order dated 24.2.2005. It is said that, even if there was an injunction order restraining the Petitioner/Respondent from marrying with Miss Th. Babita Devi of Kwakeithel Moirang Purel Leikai, marriage ceremony was performed in the form of "Keina Katpa". Such being the situation, it is the case of the Respondent/Petitioner No. 1 that she was not at all allowed to live in her matrimonial house. 6. In the said application under Section 125 of the Code of Criminal Procedure the Respondent/Petitioner also alleged that the Petitioner/Respondent has sufficient source of income as he was assisting his father in running a business in the name and style of "Ei Meetei" dealing with Kinetic Honda (Scooter). 7. The Petitioner/Respondent also filed written statement before the learned Family Court denying that the Petitioner/Respondent has the source of income. And, in his written statement the Petitioner/Respondent also asserted that he is an unemployed educated person and also that the Respondent/Petitioner (wife) has source of income and she is working as a teacher in the Ruby Montessori School. And it is also asserted that the Respondent/Petitioner No. 1 is earning monthly Rs. 2000/- (Rupees two thousand) in addition to her monthly income of Rs. 2000/- (Rupees two thousand) out of the private tuitions. The Petitioner/Respondent (husband) also asserted in the written statement that Respondent/Petitioner No. 1 had voluntarily left the matrimonial house on 16.7.2000. 8. According to the Respondent/Petitioner, without considering the issue as to whether the Respondent/Petitioner No. 1 has been forcibly thrown out or not by the Petitioner/Respondent No. 1 and also as to whether the Petitioner/Respondent (husband) has the source of income and also as to whether the Respondent/Petitioner No. 1 (wife) has the source of income to the tune of Rs. 4000/-(Rupees four thousand) per month as salary for working as teacher in the Ruby Montessori School and also private tuitions, passed the impugned order dated 25.2.2006 allowing the Cril (M) Case No. 43 of 2005 thereby directing the Petitioner/Respondent to pay a sum of Rs. 2,500/- (Rupees two thousand and five hundred) per month to the Respondent/Petitioner No. 1 (Wife) and Respondent/Petitioner No. 2, the son. Hence, the present Criminal Revision Petition. 9. 2,500/- (Rupees two thousand and five hundred) per month to the Respondent/Petitioner No. 1 (Wife) and Respondent/Petitioner No. 2, the son. Hence, the present Criminal Revision Petition. 9. No doubt, the proceeding under Section 125 Code of Criminal Procedure is a summary proceeding, the object of which is to prevent vagrancy and mat object is achieved by directing provision for lodging, fooding and clothing and maintenance to the wife, minor children or the parents, as the case may be. However, there are two conditions: first is that the person who has neglected to look after one of the categories of the persons concerned must have means to do so and secondly, wife, minor children or the parents must be unable to maintain themselves. Since the proceeding under Section125 of the Code of Criminal Procedure is for the objects discussed above, standard of proof of marriage or proof of inability to maintain themselves, i.e. the person concerned is not as strict as required in a civil proceeding for declaration of titles or/required in a trial of offence under Section494, IPC. 10. The Apex Court in Dwarka Prasad Satpathy v. Bidyut Prava Dixit and Anr., AIR 1999 SC 3348 held that: The provision under Section 125 is not to be utilized for defeating the rights conferred by the legislature to the destitute women, children or parents who are victims of social environment. The Apex Court, through Justice Krishna Iyer in Ramesh Chander Kaushal v. Mrs. Veena Kaushal, AIR 1978 SC 1807 observed thus: This provision is a measure of social justice and specially enacted to protect women and children and falls within the constitutional sweep of Article 15(3)reinforced by Article 39. We have no doubt that Section of statutes calling for construction by Courts are not certified print but vibrant words with social functions to fulfill. The brooding presence of the constitutional empathy for the weaker Sections like women and children must inform interpretation if it has to have social relevance. So viewed, it is possible to be selective in picking out that interpretation out of two alternatives which advances the cause-the cause of the derelicts. The brooding presence of the constitutional empathy for the weaker Sections like women and children must inform interpretation if it has to have social relevance. So viewed, it is possible to be selective in picking out that interpretation out of two alternatives which advances the cause-the cause of the derelicts. This court is of the considered view that since the object of Section 125 Code of Criminal Procedure is to prevent the vagrancy and destitution, it has a civil purpose to fulfill and in arriving at any finding in relation to an application thereunder the Courts must took to the substances rather than to the form, must avoid strict technicalities of pleadings and proof and must make a realistic approach to the material available on record so that purpose aforesaid is not frustrated. In this regard, we may refer to the decision of this Court in Akham Ibobi Singh and Anr. v. Akham Biradhwaja Singh and Anr., 2006 Cri.L.J. 3366. 11. The power of the revisional court i.e. this Court under Section 401 / 397 of the Code of Criminal Procedure is circumscribed and power can only be exercised when there has been a manifest error of law and failure of justice apparent on the face of the record. In this regard, we may refer to the decision of this Court in Senaram Das and Ors. v. Kashiram Das, 1995 (2) GLT 423 : 1995 Cri L.J. 3290. The Apex Court in the The State of Maharashtra v. Jagmohan Singh Kuldip Singh Anand and Ors., AIR 2004 SC 4412 held that "the Revisional Court is empowered to exercise all the powers conferred on the Appellate Court by virtue of the provisions contained in Section 401. Para 22 of the AIR in State of Maharashtra v. Jagmohan Singh Kuldip Singh Anand and Ors. (supra) read as follows: 22. The Revisional Court is empowered to exercise all the powers conferred on the Appellate Court by virtue of the provisions contained in Section 410Code of Criminal Procedure Section 401 Code of Criminal Procedure is a provision enabling the High Court to exercise all powers of Appellate Court, if necessary, in aid of power of superintendence or supervision as a part of power of revision conferred on the High Court or Sessions Court. Section 397, Code of Criminal Procedure confers power on the High Court or Sessions Court, as the case may be: For the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed and as to the regularity of any proceeding of such inferior Court." It is for the above purpose, if necessary, the High Court or Sessions Court can exercise all the appellate powers. Section 401, Code of Criminal Procedure conferring powers of Appellate Court on the Revisional Court is with the above limited purpose. The provisions contained in Section 395 to 401, Code of Criminal Procedure read together do not indicate that the revisional power of the High Court can be exercised as a second appellate power. 12. As discussed above, this Court, while exercising the revisional jurisdiction under Section 401 Code of Criminal Procedure, is not re-appreciating the statement of PWs and DWs and also not going to see as to whether there is sufficiency or insufficiency of evidence in coming to the finding by the Trial Court while passing the impugned judgment and order. But this Court while exercising the revisional jurisdiction under Section 401 of the Code of Criminal Procedure is only required to see as to whether the finding made by the Trial Court in the impugned judgment and order are perverse or in other words based on no evidence. 13. Keeping in view of the decisions of the Apex Court relating to the revisional power of this Court and also the aim and object of Section 125 of the Cr.P.C, this Court is carefully considering the impugned judgment and order dated 25.2.2006 passed by the learned Family Court in Cril (M) Case No. 43 of 2005. In the impugned judgment and order dated 25.2.2006, the learned Trial Court after carefully considering the statements of PWs and DWs come to a finding the Respondent/Petitioner No. 1 has no source of income inasmuch as Respondent/Petitioner (husband) had failed to prove that the Petitioner/Respondent No. 1 (wife) is working as teacher in the Ruby Montessori School. The learned Family Court come to such finding basing on the fact that the Petitioner/Respondent (husband) has not produced any document or any appointment order for appointing the Respondent/Petitioner No. 1 (wife) as teacher of the Ruby Montessori School. The learned Family Court come to such finding basing on the fact that the Petitioner/Respondent (husband) has not produced any document or any appointment order for appointing the Respondent/Petitioner No. 1 (wife) as teacher of the Ruby Montessori School. And, also nor does the Petitioner/Respondent (husband) produce and examine the Principal or any teacher of the said Ruby Montessori School. Further, the learned Family Court also made the finding basing on the statements of PWs that the Respondent/Petitioner No. 1 (wife) left her matrimonial house along with the minor children i.e. Respondent/Petitioner No. 2 after the Petitioner Respondent (husband) contracted the second marriage during the subsistence of his previous marriage and he is living with his second wife as husband and wife. Regarding the source of income of the Petitioner/Respondent (husband), the learned Family Court had made the finding that the Petitioner/Respondent No. 1 (husband) has source of income at the tune of Rs. 10,000/- (Rupees ten thousand per month only on inference. 14. For the reasons discussed above, this Court is of the considered view that the amount of maintenance at the tune of Rs. 2500/- (Rupees two thousand five hundred) per month for both the Respondent/Petitioner No. 1 and Respondent/Petitioner No. 2 is at the higher side. But taking into consideration of the peculiar fact and circumstances and also the source of income of the Petitioner/Respondent while assisting his father who is undisputedly running a shop in the name and style of "EI MEITEI" dealing with the Kinetic Honda (Scooter), this Court is of the considered view that justice shall be rendered to the Respondent/Petitioner No. 1 and Respondent/Petitioner No. 2 in awarding a sum of Rs. 2000/- (Rupees two thousand) per month as monthly maintenance allowance from the date of passing the impugned order i.e. 25.2.2005. Having regard to the above discussion, the present Revision Petition is disposed of with the above modification. It is made clear that the amount of Rs. 2000/- (Rupees two thousand) per month shall be paid by the Petitioner/Respondent (husband) w.e.f. 25.2.2006 and further, he is to pay the said amount on or before the 10th of every calendar month.