Report No. 141

4.2. A Punjab case as to maintenance.-

In 1989, in a case before the Punjab and Haryana High Court1 the question arose whether the Judicial Magistrate could restore the execution application of an order under section 125, Code of Criminal Procedure, 1973, which was dismissed in default for non-appearance of the petitioner. The Judicial Magistrate, Rajpura, had granted maintenance under section 125, Code of Criminal Procedure, 1973, in favour of Kamla Devi of Banur (District Patiala) and her two minor children, from her husband Mahma Singh. Because of non-payment of the maintenance amount, the wife filed an execution application which was dismissed in default as she and her counsel could not appear before the court.

On her application, the execution application was restored by the Judicial Magistrate. On a revision filed by the husband before the Additional Sessions Judge, Patiala, a legal point was raised that the Magistrate could not restore the execution application because of the ban of section 362, Cr. P.C., 1973 which bars alteration in a judgment or final order. The plea raised by the husband was allowed by the Additional Sessions Judge. The wife preferred a petition in the High Court of Punjab and Haryana, in revision against this order.

A Division Bench of the High Court held that the referred application could be restored. The High Court, relying upon the decision of the Supreme Court in B. Savitri v. Govind Singh Rawat, (1985) Marriage Law Journal 561 (SC) and the decisions of the Delhi High Court in Prema Jain v. Sudhir Kumar Jain, (1980) 3 Marriage Law Journal 17 (Del): (1980) Cr LJ 80 (Del) and Surhid Kamra v. Neeta, (1988) 3 Marriage Law Journal 193 (Del) held to the following effect:-

"There is no specific provision in Chapter IX of the Code of Criminal Procedure dealing with application for grant of maintenance to wives, children and parents to dismiss such applications for non-appearance of the petitioner. Since such applications are not to be equated with criminal complaint which necessarily are to be dismissed for non-appearance of the complainant in view of section 256 of the Code of Criminal Procedure, it is only in the exercise of inherent power of the court that for non-appearance of the petitioner, application under section 125 of the Code is dismissed. If that is so, there is no reason why there should not be inherent power with the court to restore such applications dismissed in default on showing sufficient cause by the petitioner for his non-appearance.

The nature of the proceedings in Chapter IX of the Code is inherently concerning civil rights, i.e. grant of maintenance to wives, children and parents. All these orders passed under different provisions of Chapter IX, as briefly noticed above, are interim in nature and can be modified, varied or cancelled on the grounds mentioned therein. Furthermore, such orders are subject to final orders, if any, passed by the civil courts regarding grant of maintenance.

The Code of Criminal Procedure provides a swift and speedy remedy to the petitioners claiming maintenance who are being neglected. It is only in the matter of implementation of such orders that a stringent provision is made for recovery of such amount as recovery of fine or by sending the person against whom order is made to imprisonment for a certain period till payment is made. This remedy cannot be throttled by procedural technicalities such as non-appearance of the petitioner on a particular day.

Such non-appearance in a given case may be beyond the control of the petitioner. In other words, there may be sufficient and cogent reason for the petitioner not to put in appearance when the case was actually called. In such circumstances, not to restore the application dismissed in default would result in miscarriage of justice. On a sufficient cause being shown, the court would have inherent power in such like cases to restore such applications dismissed in default."

1. Kamla Devi v. Mahma Singh, (1989) Cri LJ 1866 (1871) (P&H) (DB), paras. 7 and 8.

4.3. It needs to be stressed that the order passed by the High Court sustaining the restoration may now become vulnerable in as much as the Supreme Court has declared in Bindeshwari Prasad v. Kali Singh, AIR 1977 SC 2432 that a magistrate's court has no inherent powers Complications are, therefore, inherent in the present situation and serious injustice is likely to ensue unless the law is amended pursuant to the recommendations we propose to make.