An identical question came to be decided by a Division Bench of this Court in case Smt.Kamla Devi and ors. v. Mehma Singh 1989(1) P.L.R.487 and Allahabad High Court in case Kehari Singh v. State of U.P. and another 2005(3) RCR (Criminal) 690. Having interpreted the relevant provisions, it was ruled that "the Magistrate has the power to restore the maintenance petition." The ratio of law laid down in the aforesaid judgments "mutatis mutandis" is applicable to the facts of the present case and is the complete answer to the problem in hand.11
Punjab-Haryana High Court
Lavinder Pal Singh vs Mohinder Kaur & Ors. on 22 February, 2012
Tersenessly, the facts and material, which need a necessary mention, relevant for the limited purpose of deciding the core controversy, involved in the instant petition and emanating from the record, are that the marriage of petitioner Lavinder Pal Singh (husband) was solemnized with Mohinder Kaur respondent No.1 (wife) on 17.1.1988, according to Sikh rites and ceremonies at Ludhiana. After solemnization of the marriage, they resided together, cohabited as husband & wife and two sons (respondent Nos.2 and 3) were born out of the said wedlock. After some time of the marriage, the husband and his parents were stated to have started harassing the wife for bringing less dowry articles and cash.
2. Levelling a variety of allegations and narrating the sequence of events, in all, the wife claimed that her husband turned her out of the matrimonial home in the month of February, 2001, in three wearing clothes and refused to maintain her as well as their children. Since then, they are residing at the mercy of her parents. In the background of these allegations, the wife and her two sons (respondent Nos.1 to 3) filed a petition (Annexure P4) for maintenance under section 125 Cr.PC. Since none appeared on their behalf, so, the maintenance petition was dismissed in default by the JMIC, by virtue of order dated 30.4.2007 (Annexure P2).
3. In the wake of application of the wife, the original petition under section 125 Cr.PC was restored to its original number by the JMIC, by means of impugned order dated 13.11.2009.
4. The petitioner-husband did not feel satisfied and preferred the present petition, challenging the impugned order, invoking the provisions of Section 482 Cr.PC, mainly on the ground that once the maintenance petition was dismissed in default, then, the Magistrate has no jurisdiction to restore the case as it will amount to review his earlier order. On the strength of aforesaid grounds, the petitioner sought to quash the impugned order, in the manner described hereinbefore. The prayer of the husband was refuted by the learned counsel for the respondents.
5. Having heard the learned counsel for the parties, having gone through the record with their valuable assistance and after bestowal of thoughts over the entire matter, to my mind, there is no merit in the instant petition in this context.
6. Ex facie, the argument of learned counsel for the petitioner that the Magistrate has no power to review its earlier order of dismissal of petition in default, is not only devoid of merit but misplaced as well.
7. As is evident from the record, that counsel for the wife sought the restoration of the original maintenance petition on the ground of wrong noting of the date of hearing on his brief as well as daily diary. The trial Magistrate believed his version and restored the maintenance petition, vide impugned order dated 13.11.2009.
8. Above being the position and material on record, now the short and significant question, though important, that arises for determination in this petition CRM No.M-4655 of 2010 -3- is, as to whether the Magistrate has the jurisdiction to restore the maintenance petition under section 125 Cr.PC or not?
9. Having regard to the rival contentions of the learned counsel for the parties, to me, the answer must obviously be in the affirmative, as the Magistrate has the power to restore the indicated petition.
10. What cannot possibly be disputed here is that Sections 125 to 128 have been enacted by the Legislature in Chapter IX of Cr.PC with a view to provide expeditious remedy of maintenance allowance to the destitute wives, children and parents of the person concerned. Section 125 postulates the conditions and essential ingredients to claim the maintenance, whereas Section 126 posits the special procedure of taking evidence and disposal of petition under section 125 Cr.PC. Moreover, proviso to sub-section (2) of Section 126 empowers the Magistrate to determine the case ex-parte, in case of willful avoidance of service by the husband and for setting aside the ex-parte orders. So much so, Section 127 envisages the provision of alteration in the amount of maintenance and such order can be enforced under section 128 Cr.PC. Meaning thereby, a special specific summary procedure is provided under Chapter IX to deal with any situation. The procedure contemplated therein is entirely different and distinct in many manner, than that of disposal of crime related complaints as defined under section 2(d) of the Code.
11. A conjoint and meaningful reading of these provisions would reveal that the proceedings under section 125 Cr.PC are not the crime related complaints, but are of primary civil nature for the benefit of destitute wives, children and parents, who are unable to maintain themselves. Meaning thereby, this Chapter has entirely a different procedure to deal with the situation, which is not at all applicable for disposal of other crime related complaints. In this manner, the procedure under section 125 Cr.PC cannot legally be equated with the procedure of crime related complaints. If the submission of learned counsel that the CRM No.M-4655 of 2010 -4- Magistrate has no power to restore the maintenance petition, is accepted, then, to my mind, it would frustrate the very intent and purpose of the Legislature in providing expeditious remedy of maintenance allowance to the destitute wives, children and parents of the person concerned, which is not legally permissible. If the Magistrate has the power to order and then to set aside, the ex-parte order under section 125 Cr.PC, in that eventuality, it cannot possibly be saith that he has no jurisdiction to restore the maintenance petition, as (contrary) urged on behalf of the petitioner. This matter is no more res integra and is well settled.
12. An identical question came to be decided by a Division Bench of this Court in case Smt.Kamla Devi and ors. v. Mehma Singh 1989(1) P.L.R.487 and Allahabad High Court in case Kehari Singh v. State of U.P. and another 2005(3) RCR (Criminal) 690. Having interpreted the relevant provisions, it was ruled that "the Magistrate has the power to restore the maintenance petition." The ratio of law laid down in the aforesaid judgments "mutatis mutandis" is applicable to the facts of the present case and is the complete answer to the problem in hand.
13. Moreover, the trial Magistrate has examined the matter in right perspective, recorded the cogent grounds and correctly negatived the claim of petitioner. Such impugned order, containing valid reasons, cannot possibly be interfered with by this Court in the exercise of limited jurisdiction under section 482 Cr.PC, unless and until, the same is illegal, perverse and without jurisdiction. Since no such patent illegality or legal infirmity has been pointed out by the learned counsel for the petitioner, so, the impugned order deserves to be maintained in the obtaining circumstances of the case.
14. No other legal point, worth consideration, has either been urged or pressed by the learned counsel for the parties.
15. In the light of aforesaid reasons, as there is no merit, therefore, the instant petition is hereby dismissed as such.
22.2.2012 (Mehinder Singh Sullar) AS Judge Whether to be referred to reporter?Yes/No
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