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In Re: Kalavantibai Tekchand Bhavani - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai High Court
Decided On
Case NumberCriminal Appln. for Revision No. 1030 of 1952
Judge
Reported inAIR1953Bom366; (1953)55BOMLR383
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 488, 488(1), 488(2), 489, 489(1), 490 and 561-A
AppellantIn Re: Kalavantibai Tekchand Bhavani
Appellant AdvocateA.G. Kripalani, Adv.;H.M. Choksi, Govt. Pleader
Respondent AdvocateC.K. Jaisinghani, Adv.
Excerpt:
.....passed under section 488 of the code being a consolidated order was. irregular, it was open to the magistrate on the application made to him under section 490 of the code to modify the order in view of the death of one of the children which must be regarded as a change of circumstances inviting the jurisdiction of the magistrate under section 489(2) of the code.;thumbuswamy pillay v. ma lone (1916) 18 cr. l.j. 103 and ma khin yi v. edward khin maung (1939) 42 cr. l.j. 312 not followed. - - submitted by more persons than one the magistrate should, if ha is satisfied that they are entitled to maintenance, make an order directing payment of maintenance at specified rates in favour of each of the persons whom, the respondent is bound to maintain. c, if the order is executable when there is..........for maintenance in favour of the petitioner and her children under section 488, criminal p. c. the learned magistrate has with some reluctance passed an order dismissing the application filed by the petitioner.(2) the few facts which are necessary to understand the grounds on which the learned magistrate has dismissed the application are these:-- the petitioner is the wife of the respondent. she filed an application in the court of the resident magistrate, first class, kirkee cantonment, poona, for an order under s.488, criminal p.c., for maintenance of herself and of her three children. on 19-11-1949, the learned resident magistrate passed the following order:'i order that the respondent shall pay for maintenance of the applicant and her three children an amount of rupees one hundred.....
Judgment:
ORDER

(1) This revision application arises out of an order passed, by the learned Presidency Magistrate, 3rd Court, Bombay, refusing to direct recovery of the amount due under an order passed for maintenance in favour of the petitioner and her children under Section 488, Criminal P. C. The learned Magistrate has with some reluctance passed an order dismissing the application filed by the petitioner.

(2) The few facts which are necessary to understand the grounds on which the learned Magistrate has dismissed the application are these:-- The petitioner is the wife of the respondent. She filed an application in the Court of the Resident Magistrate, First Class, Kirkee Cantonment, Poona, for an order under S.488, Criminal P.C., for maintenance of herself and of her three children. On 19-11-1949, the learned Resident Magistrate passed the following order:

'I order that the respondent shall pay for maintenance of the applicant and her three children an amount of rupees one hundred under Section 488(1), Criminal P. C. and this allowance shall be payable from the date of this order as provided in Section 488(2), Criminal P. C.'

Now, the order passed by the learned Resident Magistrate was an irregular order. When maintenance was claimed on behalf of the petitioner and her three children, the learned Magistrate should have made separate provision for the maintenance of the petitioner and for each of her three children. But he passed a consolidated order in favour of all the four persons dependent upon the respondent. This irregularity was never sought to be rectified by any proceedings taken either by the petitioner or by the respondent. Thereafter the proceedings were transferred to the Court of the Presidency Magistrate, 3rd Court, Bombay, the parties having ceased to reside within the jurisdiction of the learned Resident Magistrate Kirkee Cantonment. The petitioner then submitted an application under Section 490, Criminal P.C. for recovery from the respondent of arrears of maintenance. The respondent resisted the application contending that inasmuch as one of the children for whose benefit the order was passed had died on 18-1-1950, and the order being composite in character, it could not be split up-and that no execution could issue on the original order and that it was necessary for the petitioner to file another application and obtain, a fresh order. In support of his contention reliance was placed on behalf of the respondent on two decisions, one of the Lower Burma Chief Court and the other of the Rangoon High Court, reported in -- 'Thambuswamy Pillay v. Ma Lone', AIR 1917 LB 84 (A) and --'Ma Khin Yi v. Edward Khin Maung', AIR 1941 Rang 46 (B) respectively. The learned Magistrate upheld the contentions raised by the respondent and dismissed the application filed by the petitioner. The petitioner has come to this Court in revision.

(3) On principle, the view taken by the-learned Magistrate appears to be unsustainable. It is true that in dealing with an application under Section 488, Criminal P. C. submitted by more persons than one the Magistrate should, if ha is satisfied that they are entitled to maintenance, make an order directing payment of maintenance at specified rates in favour of each of the persons whom, the respondent is bound to maintain. An order which directs a consolidated payment to be made for the benefit of several persons entitled to maintenance under Section 488, Criminal P.C. is undoubtedly on I irregular order. But if the order has been made and acquiesced in, it cannot be said that the order is inexecutable under Section 490, Criminal P. C, If the order is executable when there is no change of circumstances since the date of the order, I fail to see why when there has been change of circumstances the Magistrate who is asked to execute the order is not entitled to so amend or modify the order in the light of change of circumstances. Under Sub-Sections (4) & (5) of Section 488 it is open to a Magistrate to cancel an order already passed, if it is found that the wife is living in adultery or without sufficient reason refuses to live with her husband or that the husband & wife are living separately by mutual consent. Similarly, under Section 489, Criminal P. C. it is open to a Magistrate on proof of change in the circumstances of any person receiving under Section 488 a monthly allowance, or ordered under the same section to pay a monthly allowance to his wife or child, to make such alteration in the allowance as the Magistrate thinks fit. That provision confers jurisdiction upon a Magistrate to alter the rate of maintenance awarded when there is change of circumstances.

(4) It cannot be said that the order passed by the Resident Magistrate, First Class, Kirkee Cantonment, was not an order under Section 488, Criminal P.C. Even if it was an irregular order, the order having been made under Section 488, it was open to the learned Magistrate, to whom an application was submitted under Section 400, to modify the order in view of the undoubted change of circumstances. Originally there were four persons for whose benefit the order for monthly allowance was made. By reason of the death of the child Moti there are new only three persons who are entitled to obtain maintenance from the respondent. The death of one of the children must be regarded as a change of circumstances, and the jurisdiction cf the Magistrate under Section 489(1) could clearly be invoked. The exercise of jurisdiction under Section 489(1) does not depend upon the filing of any substantive application. If in the consideration of an application under Section 490 the Magistrate is satisfied that there has been a change of circumstances which justifies him in exercising his jurisdiction under Section 489, in my view, it is open to him to modify the order after taking into account the change of circumstances and to award such maintenance as may be just. I am unable to accept the view of the learned Magistrate that once one of the dependants for whose benefit the order was passed died the whole order must be deemed to be vacated. If the jurisdiction to modify or amend the order in view of change of circumstances be granted, it is difficult to understand why in the case where a consolidated order has been passed, death of one of the beneficiaries may not be regarded as a change of circumstances inviting the exercise of the jurisdiction under Section 489.

(5) The learned Magistrate appears to have been impressed by the decisions relied upon by counsel for the respondent in the Court below. I will briefly refer to these decisions. In the case of -- 'AIR 1917 LB 84 (A)' Sir Charles Fox C. J. held that

'where the original order made no specific allotment for the wife separately, it is not competent for a Magistrate to do so in enforcement of the order under Section 489 (of the Criminal Procedure Code).'

(6) The reference to Section 489 seems to be a mistake for Section 490. The learned Judge has not given any reason why he accepted the contention raised on behalf of the husband. He merely observed in his judgment (p. 85):

'....1 do not think it was open to the Magistrate who was asked to enforce the order to do this (to allot any particular portion for the wife) either as regards arrears or future maintenance. In my opinion, the order of the Magistrate was unjustified both as regards the order for payment of arrears, and as regards the payment of allowance for the future.'

The learned Chief Judge did not refer to the relevant statutory provision which invested the Magistrate with jurisdiction to modify orders passed under Section 488, in the light of change of circumstances and contented himself by merely laying down an 'ipse dixit'. The decision in -- AIR 1941 Rang 46 (B), which is also a judgment of a single Judge of the Rangoon High Court and which follows the decision in -- AIR 1917 LB 84 (A)', has laid down the proposition that a composite order becomes of no effect in view of a change of circumstances and that it cannot be partially enforced.

(7) If the provisions of the Criminal Procedure Code relating to maintenance have been enacted for providing a speedy remedy for obtaining maintenance by discarded wives and abandoned children, I do not see what useful purpose is likely to be served by taking this technical view which deprives persons genuinely in need, of maintenance, because the Magistrate who passed the order in their favour acted irregularly. Undoubtedly the learned First Class Magistrate who dealt with the original application had come to the conclusion that the respondent had failed and neglected to maintain his wife and children. That failure and neglect has persisted even after the order was made. Why should it then be that a defaulting head of the family be encouraged in contumaciously disregarding his elementary duties, where the Court; which is entitled to enforce compliance with the order has jurisdiction to modify the order? I fail to see what purpose is going to be served by driving the petitioner to file fresh proceedings. Multiplicity of proceedings which can be avoided is always discountenanced by the Courts. I find nothing in the Criminal Procedure Code which compels me to adopt the view that the parties should in the present case be driven to fresh proceedings which are plainly unnecessary and are not likely to serve any useful purpose except possibly rectify the irregularity which can be rectified more expeditiously otherwise. In my view, the learned Magistrate himself should have proceeded to rectify the order.

(8) Even assuming for the sake of argument that my view is not correct, and that a consolidated order in favour of several dependants becomes void on the death of one of the dependants, I am still entitled to exercise the jurisdiction of this Court under Section 561A, Criminal P. C. and to rectify the order of the learned Resident Magistrate, First Class, Kirkee Cantonment, Poona, passed on 19-11-1949. In the present case, the application for maintenance was filed on behalf of the wife and her three children, and it would not be unjust to hold that the learned Magistrate intended to provide Rs. 40 to the wife and Rs. 20 to each of the three children. When one of the three children is dead, from the date of death of that child the liability to pay maintenance payable to that child obviously ceased. I accordingly rectify the order passed by the learned First Class Magistrate, and direct that the respondent do pay to the petitioner maintenance at the rate of Rs. 40 per month and to each of the children at the rate of Rs. 20 per month. The payment to be made accordingly from the date of the original order.

(9) I direct that the order passed by the learned Presidency Magistrate dismissing the application filed by the petitioner be set aside and the application be remanded to the Court below and the learned Magistrate do proceed to execute the order, in the light of the observations made by me in this order. The learned Magistrate to expedite the disposal of the application.

(10) Revision allowed.


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