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2010 DIGILAW 544 (JK)

Kifayat Hussain Baba v. Nighat Parveen

2010-10-22

Mansoor Ahmad Mir

body2010
1. Respondent No.1, mother, moved an application for grant of maintenance on behalf of minor son and daughter, respondents 2 and 3 in terms of Section 488 of the Code of Criminal Procedure, Svt. 1989 (1933 A.D.), hereafter, for short the Code, before the Chief Judicial Magistrate, Srinagar, came to be transferred to Judicial Magistrate 1st Class (Judge Small Causes), Srinagar. Learned trial court granted the maintenance at the rate of Rs.800/- each per month from the date of presentation of the petition i.e. 22.06.2002. Petitioner, father, feeling aggrieved challenged the same by the medium of revision petition before the Principal Sessions Judge, Srinagar, came to be transferred to court of 3rd Additional Sessions Judge, Sriangar. 3rd Additional Sessions Judge, Srinagar, dismissed the revision petition vide order dated 09.02.2010. 2. Petitioner has questioned both the orders by the medium of this petition. 3. It is beaten law of the land, that power in terms of Section 561-A Cr. P.C. is to be exercised sparingly, carefully and cautiously. The power can be exercised only when it appears that the process issued amounts to abuse of the process of Court/ law or quashing of these proceedings would otherwise serve the ends of justice. It is to be exercised in rarest of rare cases. Court has to keep in mind that it is not functioning as a court of appeal or revision. 4. The Apex Court has laid down the guidelines and parameters in cases Som Mittal v. Govt. of Karnataka, 2008 AIR SCW 1003; K.L.E. Society v. Siddalingesh, 2008 AIR SCW 1993; Reshma Bano v. State of Uttar Pradesh, 2008 AIR SCW 1998; State of A. P. v. Bajjoori Kanthaiah, AIR 2008 SCW 7860 and Baijnath Jha v. Sita Ram, 2008 AIR SCW 4614. The Apex Court has also laid down the parameters/ guidelines in case State of Andhra Pradesh v. Goloconda Linga Swamy, AIR 2004 SCW 3967. It is apt to reproduce para 8 of the judgment report in AIR 2008 SCW 1993. "8. Exercise of power under Section 482 of the Code in a case of this nature is the exception and not the rule. The Section does not confer any new powers on the High Court. It only saves the inherent power which the Court possessed before the enactment of the Code. "8. Exercise of power under Section 482 of the Code in a case of this nature is the exception and not the rule. The Section does not confer any new powers on the High Court. It only saves the inherent power which the Court possessed before the enactment of the Code. It envisages three circumstances under which the inherent jurisdiction may be exercised, namely, (i) to give effect to an order under the Code, (ii) to prevent abuse of the process of court, and (iii) to otherwise secure the ends of justice. It is neither possible nor desirable to lay down any inflexible rule which would govern the exercise of inherent jurisdiction. No legislative enactment dealing with procedure can provide for all cases that may possibly arise. Courts, therefore, have inherent powers apart from express provisions of law which are necessary for proper discharge of functions and duties imposed upon them by law. That is the doctrine which finds expression in the section which merely recognizes and preserves inherent powers of the High Courts. All courts, whether civil or criminal possess, in the absence of any express provision, as inherent in their constitution, all such powers as are necessary to do the right and to undo a wrong in course of administration of justice on the principle "quando lex aliquid alicui concedit, concedere videtur et id sine quo res ipsae esse non potest" (when the law gives a person anyting it gives him that without which it cannot exist). While exercising powers under the section, the court does not function as a court of appeal or revision. Inherent jurisdiction under the section though wide has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the section itself. It is to be exercised ex debito justitiae to do real and substantial justice for the administration of which alone courts exist. Authority of the court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice, the court has power to prevent abuse. It would be an abuse of process of the court to allow any action which would result in injustice and prevent promotion of justice. Authority of the court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice, the court has power to prevent abuse. It would be an abuse of process of the court to allow any action which would result in injustice and prevent promotion of justice. In exercise of the powers court would be justified to quash any proceeding if it finds that initiation/ continuance of it amounts to abuse of the process of court or quashing of these proceedings would otherwise serve the ends of justice. When no offence is disclosed by the complaint, the court may examine the question of fact. When a complaint is sought to be quashed, it is permissible to look into the materials to assess what the complainant has alleged and whether any offence is made out even if the allegations are accepted in toto." 5. The purpose, object and aim of the proceeding under Section 488 of the Code is social one in order to save the claimants from the vagrancy and other social evils. Petitioner is the father of respondents 2 and 3 who are minors and it is his statutory duty to maintain them. 6. The trial Court after considering the material and while keeping in view the fact that claimants are minor children of the petitioner granted the maintenance in favour of respondents 2 and 3. The revisional court upheld the order. 7. The argument of learned counsel for the petitioner that maintenance allowance is payable from the date of order and not from the date of application is devoid of any force for the following reasons. 8. It is apt to reproduce sub-section 2 of Section 488 of Cr. P.C. herein:- "488. Order for maintenance of wives, children and parents. (2) Such allowance shall be payable from the date of order, or if so ordered from the date of application for maintenance." 9. Keeping in view the mandate, aim, purpose and scope of Section 488 of the Code, normally maintenance is to be granted in favour of the claimants who are minors from the date of application except in exceptional cases for the reasons to be recorded and for compelling circumstances. 10. This Court in case titled Mst. Shamima v. Farooq Ahmed, reported in 1992 KLJ 167 , has also laid down the same principle. 10. This Court in case titled Mst. Shamima v. Farooq Ahmed, reported in 1992 KLJ 167 , has also laid down the same principle. It is apt to reproduce relevant portion of the said judgment herein: "..The trial magistrates dealing with the applications for maintenance are, therefore, required to normally grant the maintenance from the date of the application and not from the date of the order unless circumstances so warrant and reasons reassigned in the orders passed in these proceedings." 11. As discussed hereinabove, the father is under statutory obligation to maintain minor kids. It cannot be said and held that maintenance in favour of minor children is to be granted from the date of order. If the maintenance is granted in favour of wife or minor children from the date of order that will defeat its purpose. The said order will also be against the concept and law evolved by the Apex Court in judgment titled Savitri v. Govind Singh, reported in AIR 1986 SC 984 . 12. This Court in judgment titled Mst. Tasleema & anr. v. Aijaz Ahmad Sheikh, reported in 2006(I) SLJ 242 has held that interim maintenance is to be paid from the date of application and not from the date of order. It is apt to reproduce para-15 of the said judgment herein: "The granting of interim maintenance is just to provide food, shelter and clothes to the claimants during the pendency of the proceedings. It is to be granted from the date of application and not from the date of order. If it will be held that the interim maintenance is to be granted from the date of order and not from the date of application that will be against the concept, aim and object of Section 488 Cr.P.C. That will be also against the concept evolved by the Apex Court in the judgment reported in AIR 1986 SC 984 referred hereinabove." 13. The interim maintenance was granted in favour of respondents 2 and 3 by the trial court, if it is ordered that maintenance is payable from the date of order that will amount to putting cart before the horse and the amount already paid is to be recovered or adjusted which will have the effect of defeating the purpose of the Code. It will also amount to denial of the maintenance to the minors/ dependants from the date of application and leaving them in lurch. 14. In the given circumstances, I am of the considered view that the trial court as well as the revisional court has passed well reasoned judgments cannot be said to be abuse of process of law. Thus no case is made out. Accordingly, this petition is dismissed with costs which are quantified at Rs.2000/-. Connected Cr.MP is also dismissed.