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Makhdum Ali Vs. Mst. Nargis Bano and Another - Court Judgment

LegalCrystal Citation
Subject Criminal
CourtDelhi High Court
Decided On
Case NumberCriminal Misc. (M) No. 186 of 1982
Judge
Reported in1983CriLJ111; 1983(1)Crimes933; 1(1983)DLT100; 1983(4)DRJ39
ActsCode of Criminal Procedure (CrPC) , 1973 - Sections 125, 126(2), 397 and 482
AppellantMakhdum Ali
RespondentMst. Nargis Bano and Another
Cases Referred(See Pritam Kaur v. S. Sunder Singh
Excerpt:
.....the evidence of the wife and her witnesses on 20th september, 1980. 9. for some reason the wife's application was dismissed on 16th january, 1981. that was clearly a mistake of the court because on 5-12-80 the case had been adjourned to 30th january, 1981 in the presence of parties' counsel. under section 125 the person who is proceeded ex parte has this remedy, namely, to apply to the magistrate that for a stated good cause he was unable to appear and that the ex parte order may be set aside against him. now it is well settled that if the party does not follow the remedy provided by the code the power under s. 482 because he can well contend that there has been a denial of justice to him because his application for setting aside the ex parte order has wrongly been rejected. this..........held that the husband had absented himself on more than 10 dates and in view of the order of ex parte date 20th september, 1980 the trial court was not bound to give to the husband an opportunity to lead any evidence in rebuttal as he had been proceeded ex parte and did not seek to set aside that ex parte order. 11. it is now denied on affidavit that husband's counsel made any such concession as is recorded in the judgment of the additional sessions judge. this, however will not tilt the scales in husband's favor because the record of the case amply justifies the conclusion arrived at by the additional sessions judge. 12. secondly, the important thing in this case is that the husband did not make any application to the trial magistrate for setting aside the ex parte proceedings. he.....
Judgment:
ORDER

1. This is a petition under Section 482 of the Code of Criminal Procedure by the husband, Makdoom Ali, seeking to set aside the order dated 30th September, 1981 made by the Additional Sessions Judge as well as the order dated 6-5-1981 of the Metropolitan Magistrate.

2. The petitioner, Makdoom Ali was the husband. Nargis Bano, respondent No. 1 was his wife. Now they are divorced. The husband has remarried. The wife has not. For the purposes of this case wife 'includes a woman who has been divorced by or has obtained a divorce from her husband and has not married.' (Section 125 Cri.P.C. Explanationn C). Asim Ali, respondent No. 2, is a child of the marriage. He is a boy nearly of four years of age.

3. The wife made a petition to the Metropolitan Magistrate on 14th December, 1978 under Section 125, Cr.P.C. alleging that the husband had turned her out of the house on 10-9-1978 and that he was refusing and neglecting to maintain her and the child.

4. The husband appeared before the Metropolitan Magistrate and then absented himself. On the evidence led by the wife the Magistrate was satisfied that the husband was neglecting to maintain the wife and the child. He was also satisfied that the husband was a man of means. He, thereforee, by order dated 6-5-1981, direct the husband to pay Rs. 300/- per month to the wife and Rs. 200/- to the child on account of maintenance allowance. This order was to have effect from the date of the order, that is, 6-5-81.

5. From the order of the Magistrate the husband filed a revision in the Sessions Court under Section 397 Cr.P.C. The Additional Sessions Judge by order dated 30th September, 1981 dismissed the revision petition. From his order this petition under Section 482, Cr.P.C. has been brought by the husband.

6. I heard this case on 21-7-82. The wife's counsel was present. The husband's counsel was absent. I dismissed the petition of the husband. Thereafter husband's counsel made an application for setting aside my ex parte order dated 21-7-82. I found that there was sufficient cause for a re-hearing of the case. I consequently set aside my order dated 21-7-82. I have now re-heard the case. Both counsel have addressed full arguments.

7. Counsel for the husband has mainly argued that the order of the Magistrate is illegal because it was passed without giving an opportunity to the husband to lead evidence in the case. He has taken a number of points in this connection. Firstly he says that the Magistrate's order dated 4th April, 1981 is illegal as no notice was given to the husband after the wife's petition was restored which had been dismissed for parties' absence. Secondly he submits that the Magistrate was not justified in taking ex parte proceedings without recording his satisfaction that the husband was willfully neglecting to attend the court. In the third place he says that merely because a revision was filed under Section 397 in the sessions by the husband he is not disentitled from invoking Section 482 in the interests of justice. He says that this is pre-eminently a fit case in which this court ought to exercise is inherent powers to secure the ends of justice under S. 482.

8. The main question is whether there has been a denial of opportunity to the husband and whether this court ought to exercise its inherent powers under S. 482. From the record - counsel for both sides have taken me through the entire record - it appears to me that the husband has been appearing, disappearing and reappearing in this case as the proceedings amply show. It is tedious to narrate all that happened in this case right from to 1982. It is sufficient to say that the husband was proceeded ex parte on 20th September, 1980. Though he made two applications to the court, one on 30th September, 1980 and the other on 5-12-1980, he did not pursue those applications. What is relevant to note is that after 20th September, 1980 the case was fixed for arguments after recording the evidence of the wife and her witnesses on 20th September, 1980.

9. For some reason the wife's application was dismissed on 16th January, 1981. That was clearly a mistake of the court because on 5-12-80 the case had been adjourned to 30th January, 1981 in the presence of parties' counsel. The parties appeared on 30th January, 1981 because that was the date given to them to appear. On that date the Magistrate said that the original file be summoned and the case was adjourned on 27th February, 1981. On 27th February, 1981 both parties' counsel were present. The wife made an application for restoration and gave a copy to the husband's counsel. The court fixed 4th April, 1981 for reply to the restoration application. On 4th April, 1981 the wife was present with her counsel. The husband and his counsel were absent. The Magistrate accepted the application and restored the case. He dismissed the husband's application which he made on 5-12-1980 because he was not there to prosecute it. He knew about the case. He knew that the case had been dismissed in default by court's mistake. He was given the dated 27th February, 1981. He was asked to appear on 4th April, 1981. He did not appear on 4th April, 1981. The Magistrate then fixed 2nd May, 1981. He heard arguments on the case and passed the order of maintenance on 6-5-1981. From this order the husband filed a revision in the Sessions Court on 18th May, 1981.

10. There are two outstanding facts in this case. One is that the husband was proceeded ex parte on 20th September, 1980 and this ex parte order stood against him throughout. It was never set aside. The two applications which he made he did not prosecute. The proceedings show that on some hearings he appeared and on some hearings he absented himself. This question was argued before Sessions Court. The husband's counsel there 'conceded that Makdoom Ali was rightly proceeded ex parte and application seeking to set aside the ex parte order was rightly dismissed by the learned trial court on 4-4-81.' The Additional Sessions Judge held that the husband had absented himself on more than 10 dates and in view of the order of ex parte date 20th September, 1980 the trial court was not bound to give to the husband an opportunity to lead any evidence in rebuttal as he had been proceeded ex parte and did not seek to set aside that ex parte order.

11. It is now denied on affidavit that husband's counsel made any such concession as is recorded in the judgment of the Additional Sessions Judge. This, however will not tilt the scales in husband's favor because the record of the case amply justifies the conclusion arrived at by the Additional Sessions Judge.

12. Secondly, the important thing in this case is that the husband did not make any application to the trial Magistrate for setting aside the ex parte proceedings. He straightway went in revision to the Sessions under S. 397. The proviso to Section 126(2) Cr.P.C. enacts that the Magistrate may proceed ex parte to hear and determine the case if he finds that the husband is willfully neglecting to attend the court :

'and any order so made may be set aside for goods cause show on an application made within three moths from the date thereof subject to such terms including terms as to payment of costs to the opposite party as the Magistrate may think just and proper.'

13. This is a specific remedy. Under Section 125 the person who is proceeded ex parte has this remedy, namely, to apply to the Magistrate that for a stated good cause he was unable to appear and that the ex parte order may be set aside against him. Now it is well settled that if the party does not follow the remedy provided by the Code the power under S. 482 is not to be resorted to because there is a specific provision in the Code for the redress of the grievance of the aggrieved party. Power under S. 482 has to be exercised sparingly to prevent abuse of process of any court or otherwise to secure the ends of justice. (See Madhu Limaye v. State of Maharashtra : 1978CriLJ165 . If a party makes an application to the Magistrate for setting aside the ex parte order and he does not accede to the request the party may file a revision under S. 397 and also invoke the powers of this court under S. 482 because he can well contend that there has been a denial of justice to him because his application for setting aside the ex parte order has wrongly been rejected. This remedy for reasons best known to him the husband had not chosen to take. I am thereforee disinclined to exercise the inherent powers in this case mainly for two reasons. One that the remedy under S. 126 has not been pursued. Secondly the husband's conduct throughout the proceedings over a period of nearly three years has not been meritorious. He has been appearing, disappearing and reappearing in the case at his will and pleasure. In a word his behavior is not deserving of meritorious consideration.

14. On the merits of the case I do not think that the order of the Magistrate awarding Rs. 300/- to the wife and Rs. 200/- to the child can in any sense be said to be extravagant. There is a concurrent finding that the husband is neglecting to maintain the wife and the child. Both courts have found that the husband is a man of means. The amount fixed by the court is reasonable. I am not prepared to say that maintenance allowance of Rs. 300/- to the wife and Rs. 200/- to the child is in any way excessive.

15. Counsel for the husband has referred me to State of U.P. v. Smt. Shanti : AIR1979All305 . In my opinion this authority does not lay down any principle contrary to the well established rule that if there is a specific provision in the Code for the redress of the grievance of the aggrieved party the High Court will not interfere in the exercise of inherent powers. I was then referred to Khembai v. Rajindar and Kalika v. Jagdei, . These cases do not lend support to the arguments of the husband's counsel. In the Karnataka case the High Court affirmed the order of the Sessions Court which had set aside the Magistrate's order. In the Allahabad case the High Court accepted the recommendation of the Sessions Court and quashed the Magistrate's order. What is important to notice is that in both cases the husband who had been proceeded ex parte had applied to the Magistrate for setting aside the ex parte proceedings. In both cases the Magistrate had refused. The Sessions Judge in both found that the Magistrate had acted erroneously. And the High Court agreed with him. This is exactly what has not happened here. The husband never went to the Magistrate under S. 126. He straightway went to the Sessions Court under S. 397, by - passing the specific remedy. These cases, thereforee do not say that the specific remedy provided by the Code need not be pursued and that even in a case where the specific remedy is not availed of the High Court must interfere under S. 482.

16. There remains one other question. The wife has made an application for increase of the maintenance allowance. She says that each of them, namely the wife and the son, should be given Rs. 300/- per month, I do not find any case of increase of the amount.

17. Counsel for the wife then said that the Magistrate ought to have awarded maintenance from the date of the application, that is, 14-12-78 and not from the date of the order, that is, 6-5-81. I find force in this argument. It is in evidence that the husband turned out the wife and the child on 10-9-78 from his house. Since then the husband has not been maintaining them. He has remarried. The wife was compelled to make the application on 14-12-78. The right order to make will be to award maintenance from the date of the application, that is, 14-12-78. There is no good reason why the wife and the child should not have maintenance from the date of the application when it is established that the husband has neglected to maintain them all these years. (See Pritam Kaur v. S. Sunder Singh, (1965) 67 Pun LR 263.

18. Counsel for the husband says that the two courts below have exercised their discretion and there ought to be no interference with their discretion exercised under S. 125(2). He referred me to 1980 All Cri C. 66 in support of the submission that the High Court cannot substitute its own discretion in place of the discretion of the lower court. The argument is meritless. If the husband has behaved badly the Magistrate should award maintenance not from the date of the order but from the date of the application. In my opinion there ought to be compelling reasons before the wife is deprived of maintenance from the date of the application. No such reasons have been given by any of the two courts. I, thereforee direct that maintenance allowance as fixed by the Metropolitan Magistrate shall be paid from the date of the application, that is, 14-12-1978. With this modification the orders of the learned Magistrate and the Additional Sessions Judge are affirmed.

19. Order accordingly.


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