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Harbhajan Kaur Vs. Sant Singh - Court Judgment

LegalCrystal Citation
SubjectCriminal;Constitution
CourtDelhi High Court
Decided On
Case NumberCriminal Misc. (SCA) No. 855 of 1968
Judge
Reported inAIR1969Delhi298; 1969CriLJ1243; ILR1968Delhi545
ActsConstitution of India - Articles 133, 134, 134(1) and 226; Code of Criminal Procedure (CrPC) , 1898 - Sections 342, 488, 488(3) and 488(6)
AppellantHarbhajan Kaur
RespondentSant Singh
Appellant Advocate O.P. Sharma, Adv
Respondent Advocate Madan Bhatia, Adv.
Cases ReferredKapur Singh v. Union of India
Excerpt:
.....code (v of 1898)- section 488--proceedings under--nature of--are criminal proceedings and nto civil proceedings.; the proceedings envisaged by chapter xxxvi of the code cannto be considered purely civil proceedings, though the person in default, against whom maintenance order is sought, may nto be an accused person, whose examination without oath is mandatory as prescribed by section 342 of the code and he may be entitled to appear as a witness as well.; chapter 7-a of vol. iii of rules and orders of the punjab high court dealing with the maintenance cases also recites that proceedings under section 488 of the code of criminal procedure are of criminal character and the provisions contained therein must, thereforee, be strictly followed.; (ii) constitution of india - article..........article 134(1)(c) of the constitution is inapplicable because proceedings under section 488 are civil proceedings and nto criminal proceedings. reliance in support of this preliminary objection has been placed on a decision of the supreme court in nand lal misra v. k.l. misra, : 1960crilj1246 . emphasis has been laid on the observations in this judgment that chapter xxxvi of the code of criminal procedure is a self-contained one and the relief given under it is essentially of a civil nature. from this sentence, it is sought to be argued that the proceedings under section 488 are civil proceedings and nto criminal proceedings. reliance has also been placed on a still more recent judgment of the supreme court in narayan row v. ishwar lal, : [1965]57itr149(sc) , in which while dealing.....
Judgment:

1. In this application for a certificate of fitness for appeal to the Supreme Court from an order made on revision by this Court in proceedings under Section 488, Cr. P. C, a preliminary objection has been raised that Article 134(1)(c) of the Constitution is inapplicable because proceedings under Section 488 are civil proceedings and nto criminal proceedings. Reliance in support of this preliminary objection has been placed on a decision of the Supreme Court in Nand Lal Misra v. K.L. Misra, : 1960CriLJ1246 . Emphasis has been laid on the observations In this Judgment that Chapter xxxvi of the Code of Criminal Procedure is a self-contained one and the relief given under it is essentially of a civil nature. From this sentence, it is sought to be argued that the proceedings under section 488 are civil proceedings and nto criminal proceedings. Reliance has also been placed on a still more recent Judgment of the Supreme Court in Narayan Row v. Ishwar Lal, : [1965]57ITR149(SC) , in which while dealing with an appeal from an order made by the Bombay High Court under Article 226 of the Constitution, in a matter pertaining to recovery of income-tax, it was observed that the proceedings were civil proceedings within the meaning of Article 133(1)(c) of the Constitution. Reference has next been made to a Full Bench decision of the Punjab High Court in Kapur Singh v. Union of India, where also the question about the nature of proceedings under Articles 133 and 226 of the Constitution came up for discussion. In my opinion, none of these decisions throw helpful light on the question which the preliminary objection poses. Section 488 reads as under:

'488. Order for maintenance of wives and children.--(1) If any person having sufficient means neglects or refuses to maintain his wife or his legitimate or illegitimate child unable to maintain itself, the District Magistrate, a Presidency Magistrate, a Sub-Divisional Magistrate or a Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, at such monthly rate, nto exceeding five hundred rupees in the whole, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate from time to time directs.

(2) Such allowance shall be payable from the date of the order, or if so ordered from the date of the application for maintenance.

(3) If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in manner hereinbefore provided for levying fines, and may sentence such person, for the whole or any part of each month's allowance remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made:

Provided that, if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if ho is satisfied that there is just ground for so doing.

If a husband has contracted marriage with another wife or keeps a mistress, it shall be considered to be just ground for his wife's refusal to live with him:

Provided, further that no warrant shall be issued for the recovery of any amount due under this direction unless application be made to the Court to levy such amount within a period of one year from the date on which it became due.

(4) No wife shall be entitled to receive an allowance from her husband under this section if she is living in adultery, or if, without any sufficient reason she refuses to live with her husband, or if they are living separately by mutual consent.

(5) On proof that any wife in whose favor an order has been made under this section is living in adultery, or that without sufficient reason she refuses to live with her husband, or that they are living separately by mutual consent, the Magistrate shall cancel the order.

(6) All evidence under this Chapter shall be taken in the presence of the husband or father, as the case may be, or, when his personal attendance is dispensed with, in the presence of his pleader, and shall be recorded in :he manner prescribed in the case of summons-cases:

Provided that if the Magistrate is satisfied that he is willfully avoiding service, or willfully neglects to attend the Court, the Magistrate may proceed to hear and determine the case ex parte. Any order so made may be set aside for good cause shown, on application made within three months from the date thereof.

(7) The Court in dealing with applications under this section shall have power to make such order as to costs as may be just.

(8) Proceedings under this section may be taken against any person in any district where he resides or is, or where he last resided with his wife or, as the case may be, the mother of the illegitimate child.'

It is obvious that it confers power to order maintenance, on District Magistrates, Presidency Magistrates, Sub-Divisional Magistrates and Magistrates of the 1st Class: Courts which are indisputably criminal Courts and nto civil Courts. Sub-section (6) provides that all evidence under this Chapter has to be taken in the presence of the husband or father, as the case may be, or when his personal attendance is dispensed with, in the presence of his pleader and it is to be recorded in the manner prescribed in the case of summons-cases. This is a further indication that the proceedings are criminal proceedings and nto civil proceedings. The argument that there is no penalty imposed by this section and the proceedings thereforee, cannto be described as 'criminal' is also unacceptable because according to Section 488(3), which provides for enforcement of orders, in certain circumstances, the person in default can be imprisoned for a term which may extend to one month or until payment, if sooner made, though I should nto be understood to hold this consideration to be conclusive on the point either way. It is obvious that the proceedings envisaged by Chapter xxxvi of the Code cannto be considered to be purely civil proceedings, though the person in default, against whom maintenance order is sought, may nto be an accused person whose examination without oath is mandatory as prescribed by Section 342 of the Code and he may be entitled to appear as a witness as well. I am aware of some conflict of judicial opinion in some old cases where on the ground that the procedure of trying maintenance applications being that of a summons case, failure to examine the person proceeded against under Section 342 of the Code, was held to vitiate the proceedings, but that conflict was set at rest by later decisions in which this section was held inapplicable to proceedings under S. 488. However, consistently all the Courts dealing with that question had assumed that the proceedings were criminal proceedings governed by the Code of Criminal Procedure, both in regard to the trial and the power of revision of the Court of the Sessions Judge and of the High Court.

2. Chapter 7-A of Vol. Iii of Rules and Orders of the Punjab High Court dealing with the maintenance cases also recites that proceedings under Section 488 of the Code of Criminal Procedure are of a criminal character and the provisions contained therein must, thereforee, be strictly followed. Keeping in view the scheme of Chapter xxxvi of the Code of Criminal Procedure and also the scheme of Articles 133 and 134 of the Constitution, I have little hesitation in holding that proceedings under Section 488, Cr. P. C., do fall within the contemplation of criminal proceedings within the meaning of Article 134. The expression 'criminal proceedings' in this Article, seems to me to be wide enough to include maintenance proceedings adjudicated upon by Magistrates initiated under Chapter xxxvI. Such maintenance proceedings are, in my view, criminal proceedings, designed by way of summary process to provide to deserted wives and neglected children, adjudication of their civil right of maintenance up to al limited amount, enforceable through criminal Courts, to avoid the notorious delays of civil proceedings, which may still be utilised for fuller relief under the general law in the ordinary civil Courts.

3. And then, what directly concerns this Court is the question of the nature of the proceedings on revision in this Court. These proceedings seem to me to be clearly criminal proceedings and I find no logical and rational basis for holding them to be civil proceedings so as to exclude the applicability of Article 134 of the Constitution. Nto only are they registered in this Court as criminal revisions but they are also presented in this Court under the Cr. P. C. and nto under the Civil P. C. The difference between the relative scope of a civil revision and of a criminal revision is well known and revision against an order under Section 488, Cr. P. C. has never been held to my knowledge to be a civil revision so as to exclude the applicability of Art. 134(1)(c) of the Constitution. The preliminary objection is, thereforee, nto easy to sustain.

4. Coming now to the merits, the learned counsel for the petitioner has very strongly argued that according to Section 488 of the Code, a separate order should have been made granting maintenance to the children. In my opinion, the question which concerns this Court in this present proceedings is nto so much as to what should have been done by the Magistrate while dealing with Section 488, Cr. P. C., but whether there is any such infirmity in the order of this Court as would justify a certificate of fitness within the contemplation of Article 134(1)(c) of the Constitution. It is nto argued, and it cannto be argued, that clause (a) or clause (b) of Article 134(1) covers this case. Clause (c) of this sub-article postulates a case in which a difficult question involving an unsettled principle requires to be finally determined by the Supreme Court. That does nto seem to be the case before me, and indeed no attempt has been made to show that there is any question of principle involved in the impugned order which requires authoritative decision by the Supreme Court. But this apart, the grant of maintenance in this case is a tentative order and it is always open to the authorities to ask for re-consideration and re-determination on account of change of circumstances. The children in these proceedings may, if they are so advised, even now apply to a competent Court under Section 488 for maintenance and if they make out a good claim to the satisfaction of the Court, I have nto the least doubt that suitable orders would be made in accordance with law. The revision on their behalf was held to be barred by time and this Court did nto consider it proper to exercise its suo motu power of revision in this regard. There is no decision on the merits against them by this Court and it has nto been shown that the impugned decision is based on any wrong principle of law which requires further examination by the Supreme Court.

5. For the foregoing reasons, this application fails and is dismissed.

6. Application dismissed.


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