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2014 DIGILAW 1247 (HP)

Kesari Devi v. Karam Singh Chandel

2014-09-11

TARLOK SINGH CHAUHAN

body2014
Judgment : Tarlok Singh Chauhan, Judge (Oral) Cr.MMO No. 80 of 2014: The complainant Kesari Devi has filed the present petition under Section 482 Cr.P.C. read with Section 227 of the Constitution of India praying therein for modification of the order passed by learned Additional Sessions Judge, Shimla whereby he not only reduced the maintenance in her favour from Rs.1500/- to Rs.1200/- per month and instead of granting the same from the date of application, granted the same from the date of the order i.e. 31.8.2013. 2. In an application under Section 12 of the Domestic Violence Act, the complainant alleged herself to be the legally wedded wife of the respondent and out of the said wedlock, two daughters were born. It was further averred that the complainant was an illiterate lady and a traditional background. It is further claimed that the respondent established illicit relations with one Smt. Vidya Devi, but the complainant was forced to remain silent and lateron the respondent got marriage to said Vidya Devi and thereafter started harassing and torturing the complainant to the extent that she was even made to sleep in the cow-shed. Due to such torture, the complainant was forced to leave the matrimonial house. The respondent is stated to be the retired Kanungo and receiving a pension of about Rs. 15,000/- per month and was also having orchard and huge landed property out of which he was earning about Rs. 25,00,000/- per year. While on the other hand, the complainant was old lady suffering from various ailments and accordingly prayed for interim maintenance of Rs. 10,000/-. 3. The respondent contested the claim by denying the marriage and he also denied that the parties had cohabited as husband and wife upto October, 2010. His case was that in the year 1950 the complainant was brought at home by his parents in his absence according to the local custom prevailing in the area at the relevant time and no marriage ceremony took place between them. However, the birth of the two daughters out of cohabitation was not denied. It was alleged that the complainant used to go her parents house every week, after leaving the old parents of the respondent which resulted in the strained relationship between the parties which ultimately culminated into the dissolution of the relationship. Thereafter, the respondent had performed legal and valid marriage with Vidya Devi. It was alleged that the complainant used to go her parents house every week, after leaving the old parents of the respondent which resulted in the strained relationship between the parties which ultimately culminated into the dissolution of the relationship. Thereafter, the respondent had performed legal and valid marriage with Vidya Devi. Lastly, it was denied that the respondent was earning Rs.25,00,000/- per year and his monthly pension is Rs.15,000/-. It was submitted that he is receiving a pension of about Rs. 7,000/- per month and had no other source of income. Cr.MMO No. 195 of 2014: 4. The husband, who is the respondent in the original complaint, has preferred this petition praying therein for setting aside the order passed by the learned Magistrate and the judgment passed by the learned Additional Sessions Judge (I), Shimla whereby the maintenance has been granted to the complainant. 5. It is contended that there was a customary divorce between the parties more than 54 years ago and thereafter the petitioner got remarried and therefore, the complainant was not entitled to any maintenance. It is further contended that no order for grant of maintenance could be passed as the respondent had never made any prayer for seeking such relief by filing an appropriate application as required under the law. It was contended that specific provisions under the Protection of Women from Domestic Violence Act, 2005 (for short ‘Act’) for seeking interim maintenance under Section 23 of the Act. Even the notice of the application for interim maintenance has to be served upon the opposite party as per the rules framed under the Act and since there was no application for grant of interim maintenance preferred by the respondent/complainant, therefore, the order awarding maintenance on this ground alone was required to be set-aside. 6. I have heard the learned counsel for the parties and gone through the records carefully. 7. Once the respondent admits the birth of two daughters from the cohabitation between the parties, the only question required to be determined at this stage is regarding legality of the order passed by the learned Additional Sessions Judge in so far as it relates to grant of maintenance. A bare perusal of the order shows that there is virtually no reasoning as to on what basis the learned Additional Sessions Judge reduced the maintenance from Rs. 1500/- to Rs. A bare perusal of the order shows that there is virtually no reasoning as to on what basis the learned Additional Sessions Judge reduced the maintenance from Rs. 1500/- to Rs. 1200/- and at the same time modified the order of the learned Magistrate by directing the payment of maintenance from the date of order instead of from the date of filing of the application. 8. The learned Additional Sessions Judge vide judgment dated 31.8.2013 has modified the order of the learned trial Magistrate by making the following observations: “13.………The applicant’s case is that respondent is earning about Rs. 25,00,000/- from all sources whereas case of the respondent is that he is earning Rs.7,000/- per month and he has to look after himself and his family members. In view of the facts and circumstances of the case, Rs.1500/- appears to be on the higher and keeping in view the facts in totality Rs.1200/-per month is appropriate maintenance as interim relief. Accordingly, the appeal is partly allowed and the impugned order dated 15.12.2011 is required to be modified to this extent and my findings on this point is partly in favour of the appellant. Final Order: In view of the forgoing discussion and the reasons mentioned, the appeal is partly allowed and the impugned order is modified to the extent that the applicant is entitled for the relief of interim maintenance of Rs. 1200/- from the date of order of this Court. Appeal stands disposed of. Memo of costs be prepared accordingly.” 9. I am afraid that the order passed by the learned Additional Sessions Judge can now withstand judicial scrutiny as it is devoid of any reasons. It is a settled legal proposition that not only administrative but also judicial orders must be supported by reasons recorded in it. Thus, while deciding an issue, the Court is bound to give reasons for its conclusion. It is the duty and obligation on the part of the Court to record reasons while disposing of the case. It is a settled legal proposition that not only administrative but also judicial orders must be supported by reasons recorded in it. Thus, while deciding an issue, the Court is bound to give reasons for its conclusion. It is the duty and obligation on the part of the Court to record reasons while disposing of the case. The hallmark of order and exercise of judicial power by a judicial forum is for the forum to disclose its reasons by itself and giving of reasons has always been insisted upon as one of the fundamentals of sound administration of justice delivery system, to make it known that there had been proper and due application of mind to the issue before the court and also as an essential requisite of the principles of natural justice. The giving of reasons for a decision is an essential attribute of judicial and judicious disposal of a matter before courts, and which is the only indication to know about the manner and quality of exercise undertaken, as also the fact that the court concerned had really applied its mind. 10. In Ravi Yashwant Bhoir vs. District Collector, Raigad and others (2012) 4 SCC 407 wherein the importance of recording of reasons in administrative and judicial matters was set out in the following terms: “Recording of reasons: 38. It is a settled proposition of law that even in administrative matters, the reasons should be recorded as it is incumbent upon the authorities to pass a speaking and reasoned order. 39. In Kumari Shrilekha Vidyarthi etc. etc. v. State of U.P. & Ors., (1991) 1 SCC 212 , this Court has observed as under: (SCC p. 243, para 36) “36….."Every State action may be informed by reason and if follows that an act un-informed by reason is arbitrary, the rule of law contemplates governance by law and not by humour, whim or caprice of the men to whom the governance is entrusted for the time being. It is the trite law that "be you ever so high, the laws are above you." This is what a man in power must remember always." 40. In L.I.C. of India & Anr. v. Consumer Education and Research Centre & Ors., (1995) 5 SCC 482 , this Court observed that the State or its instrumentality must not take any irrelevant or irrational factor into consideration or appear arbitrary in its decision. In L.I.C. of India & Anr. v. Consumer Education and Research Centre & Ors., (1995) 5 SCC 482 , this Court observed that the State or its instrumentality must not take any irrelevant or irrational factor into consideration or appear arbitrary in its decision. "Duty to act fairly" is part of fair procedure envisaged under Articles 14 and 21. Every activity of the public authority or those under public duty must be received and guided by the public interest. A similar view has been reiterated by this Court in Union of India v. M.L. Capoor & Ors., (1973) 2 SCC 836 ; and Mahesh Chandra v. Regional Manager, U.P. Financial Corporation & Ors., (1993) 2 SCC 279 . 41. In State of West Bengal v. Atul Krishna Shaw & Anr., 1991 Supp (1) SC 414, this Court observed that: (SCC p.421, para 7) "7. …..Giving of reasons is an essential element of administration of justice. A right to reason is, therefore, an indispensable part of sound system of judicial review." 42. In S.N. Mukherjee v. Union of India, (1990) 4 SCC 594 , it has been held that the object underlying the rules of natural justice is to prevent miscarriage of justice and secure fair play in action. The expanding horizon of the principles of natural justice provides for requirement to record reasons as it is now regarded as one of the principles of natural justice, and it was held in the above case that except in cases where the requirement to record reasons is expressly or by necessary implication dispensed with, the authority must record reasons for its decision. 43. In Krishna Swami v. Union of India & Ors., (1992) 4 SCC 605 , this Court observed that the rule of law requires that any action or decision of a statutory or public authority must be founded on the reason stated in the order or borne-out from the record. The Court further observed: (SCC p. 637, para 47) "47……Reasons are the links between the material, the foundation for their erection and the actual conclusions. They would also demonstrate how the mind of the maker was activated and actuated and their rational nexus and synthesis with the facts considered and the conclusions reached. Lest it would be arbitrary, unfair and unjust, violating Article 14 or unfair procedure offending Article 21." 44. They would also demonstrate how the mind of the maker was activated and actuated and their rational nexus and synthesis with the facts considered and the conclusions reached. Lest it would be arbitrary, unfair and unjust, violating Article 14 or unfair procedure offending Article 21." 44. This Court while deciding the issue in Sant Lal Gupta & Ors. v. Modern Co-operative Group Housing Society Ltd. & Ors., (2010) 13 SCC 336 , placing reliance on its various earlier judgments held as under (SCC pp. 345-46, para 27): "27. It is a settled legal proposition that not only administrative but also judicial order must be supported by reasons, recorded in it. Thus, while deciding an issue, the Court is bound to give reasons for its conclusion. It is the duty and obligation on the part of the Court to record reasons while disposing of the case. The hallmark of order and exercise of judicial power by a judicial forum is for the forum to disclose its reasons by itself and giving of reasons has always been insisted upon as one of the fundamentals of sound administration of the justice - delivery system, to make it known that there had been proper and due application of mind to the issue before the Court and also as an essential requisite of the principles of natural justice. ‘3…….."The giving of reasons for a decision is an essential attribute of judicial and judicious disposal of a matter before Courts, and which is the only indication to know about the manner and quality of exercise undertaken, as also the fact that the Court concerned had really applied its mind.’* The reason is the heartbeat of every conclusion. It introduces clarity in an order and without the same, the order becomes lifeless. Reasons substitute subjectivity with objectivity. The absence of reasons renders an order indefensible/unsustainable particularly when the order is subject to further challenge before a higher forum. Recording of reasons is principle of natural justice and every judicial order must be supported by reasons recorded in writing. It ensures transparency and fairness in decision making. The person who is adversely affected must know why his application has been rejected." 45. Recording of reasons is principle of natural justice and every judicial order must be supported by reasons recorded in writing. It ensures transparency and fairness in decision making. The person who is adversely affected must know why his application has been rejected." 45. In Institute of Chartered Accountants of India v. L.K. Ratna & Ors., (1986) 4 SCC 537 , this Court held that on charge of misconduct the authority holding the inquiry must record reasons for reaching its conclusion and record clear findings. The Court further held: (SCC p. 558, para 30) “30……In fairness and justice, the member is entitled to know why he has been found guilty. The case can be so serious that it can attract the harsh penalties provided by the Act. Moreover, the member has been given a right of appeal to the High Court under S. 22 A of the Act. The exercise his right of appeal effectively he must know the basis on which the Council has found him guilty. We have already pointed out that a finding by the Council is the first determinative finding on the guilt of the member. It is a finding by a Tribunal of first instance. The conclusion of the Disciplinary Committee does not enjoy the status of a "finding". Moreover, the reasons contained in the report by the Disciplinary Committee for its conclusion may or may not constitute the basis of the finding rendered by the Council. The Council must, therefore, state the reasons for its finding". 46. The emphasis on recording reason is that if the decision reveals the `inscrutable face of the sphinx', it can be its silence, render it virtually impossible for the courts to perform their appellate function or exercise the power of judicial review in adjudging the validity of the decision. Right to reason is an indispensable part of a sound judicial system, reasons at least sufficient to indicate an application of mind of the authority before the court. Another rationale is that the affected party can know why the decision has gone against him. One of the salutary requirements of natural justice is spelling out reasons for the order made. In other words, a speaking out, the inscrutable face of the sphinx is ordinarily incongruous with a judicial or quasi-judicial performance. 11. Another rationale is that the affected party can know why the decision has gone against him. One of the salutary requirements of natural justice is spelling out reasons for the order made. In other words, a speaking out, the inscrutable face of the sphinx is ordinarily incongruous with a judicial or quasi-judicial performance. 11. Even on merits, I find no justifiable reasons whereby the amount of maintenance could have been reduced from Rs. 1500/- to Rs. 1200/- and that too from the date of the order i.e. 15.12.2011 instead of the date of application. The respondent admittedly is a retired Kanungo and it is not denied by him that he is receiving pension. Therefore, the orders of Rs.1500/- cannot in any case termed to be excessive that too only on the ground that the husband has to “look-after himself and his family members”. The impugned order does not even spell out as to who are the other “family members”. The husband otherwise cannot shun his liability of maintaining the complainant and two daughters who too are his family members. He not only owes a moral but a legal obligation to maintain them. There is no reason assigned as to why the maintenance has only been allowed from the date of the order. It is only in exceptional circumstances that an order of maintenance can be made from the date of the order that too where the delay or fault is attributable to the complainant. In all other cases, normally accepted practice is that the maintenance is required to be granted/awarded from the date of application. 12. Learned counsel for the respondent would then contend that since there was no separate application claiming maintenance, therefore, the maintenance could not have been granted to the complainant. I cannot agree with such submission. Admittedly, in the application under Section 12 of the Act preferred by the complainant, the complainant had specifically claimed interim maintenance. The mere fact that there were specific provisions contained in the Act and Rules with respect to grant of interim maintenance cannot be a ground for refusal to award interim maintenance especially once when the same is admittedly claimed in the main petition. The mere fact that there were specific provisions contained in the Act and Rules with respect to grant of interim maintenance cannot be a ground for refusal to award interim maintenance especially once when the same is admittedly claimed in the main petition. Only on account of the fact that a separate application for grant of interim maintenance has not been preferred, in my view, cannot be a ground to hold the complainant to be not entitled to the grant of maintenance or hold that the order passed thereupon would be a nullity. 13. It is a well settled principle of law that mentioning of a wrong provision or non-mentioning of a provision of law does not invalidate an order if the court and/or statutory authority had the requisite jurisdiction therefor. It is further well settled that if an authority has a power under the law merely because while exercising that power the source of power is not specifically referred to or a reference is made to a wrong provision of law, that by itself does not vitiate the exercise of power so long as the power does exist and can be traced to a source available in law. 14. The aforesaid position of law has been succinctly dealt with by the Hon’ble Supreme Court in P.K. Palanisamy vs. N. Arumugham and another (2009) 9 SCC 173 wherein it has been held as under: “26. A contention has been raised that the applications filed by the appellant herein having regard to the decisions of the Madras High Court could not have been entertained which were filed under Section 148 of the Code. 27. Section 148 of the Code is a general provision and Section 149 thereof is special. The first application should have been filed in terms of Section 149 of the code. Once the court granted time for payment of deficit court fee within the period specified therefor, it would have been possible to extend the same by the court in exercise of its power under Section 148 of the Code. The first application should have been filed in terms of Section 149 of the code. Once the court granted time for payment of deficit court fee within the period specified therefor, it would have been possible to extend the same by the court in exercise of its power under Section 148 of the Code. Only because a wrong provision was mentioned by the appellant, the same, in our opinion, by itself would not be a ground to hold that the application was not maintainable or that the order passed thereon would be a nullity.It is a well settled principle of law that mentioning of a wrong provision or non-mentioning of a provision does not invalidate an order if the court and/or statutory authority had the requisite jurisdiction therefor. 28. In Ram Sunder Ram v. Union of India & Ors. (2007) 13 SCC 255 , it was held: (SCC pp. 260-61, para 19) "19.......It appears that the competent authority has wrongly quoted Section 20 in the order of discharge whereas, in fact, the order of discharge has to be read having been passed under Section 22 of the Army Act. ‘9. It is well settled that if an authority has a power under the law merely because while exercising that power the source of power is not specifically referred to or a reference is made to a wrong provision of law, that by itself does not vitiate the exercise of power so long as the power does exist and can be traced to a source available in law [see N. Mani v. Sangeetha Theatre and Ors. (2004) 12 SCC 278 ] SCC p. 280, para 9). Thus, quoting of wrong provision of Section 20 in the order of discharge of the appellant by the competent authority does not take away the jurisdiction of the authority under Section 22 of the Army Act. Therefore, the order of discharge of the appellant from the army service cannot be vitiated on this sole ground as contended by the Learned Counsel for the appellant." 29. In N. Mani v. Sangeetha Theatres & Ors. [ (2004) 12 SCC 278 ], it is stated: (SCC p. 280, para 9) "9. Therefore, the order of discharge of the appellant from the army service cannot be vitiated on this sole ground as contended by the Learned Counsel for the appellant." 29. In N. Mani v. Sangeetha Theatres & Ors. [ (2004) 12 SCC 278 ], it is stated: (SCC p. 280, para 9) "9. It is well settled that if an authority has a power under the law merely because while exercising that power the source of power is not specifically referred to or a reference is made to a wrong provision of law, that by itself does not vitiate the exercise of power so long as the power does exist and can be traced to a source available in law." 15. In view of foregoing discussion, I find merit in the petition preferred by the complainant being Cr.MMO No. 80 of 2014 and accordingly, the judgment passed by learned Additional Sessions Judge-I, Shimla in Criminal Appeal No. 28-S/10 of 2012 dated 31.8.2013 is set-aside and the order passed by the learned trial Magistrate dated 15.12.2011 is affirmed. Resultantly, Cr.MMO No. 195 of 2014 is dismissed. 16. Before parting, it may be observed that the observations made hereinabove, are solely for the purpose of adjudication of these petitions only and shall have no bearing on the merits of the main case. Both the petitions stand disposed of on above terms, so also the pending applications, if any.