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M. Areefa Beevi Vs. Dr. K.M. Sahib - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKerala High Court
Decided On
Judge
Reported in1983CriLJ412
AppellantM. Areefa Beevi
RespondentDr. K.M. Sahib
Cases ReferredRaj Kumari v. Yashoda Devi
Excerpt:
.....power by the high court. sankara menon contends, i fail to see why the court should not exercise its inherent powers in quashing such..........which could be corrected in exercise of the revisional power of the high court under the 1898 code the high court will refuse to exercise its inherent power. but in case the impugned order clearly brings about a situation which is an abuse of the process of the court or for the purpose of securing the ends of justice interference by the high court is absolutely necessary, then nothing contained in section 397(2) can limit or affect the exercise of the inherent power by the high court. but such cases would be few and far between. the high court must exercise the inherent power very sparingly. one such case would be the desirability of the quashing of a criminal proceeding initiated illegally, exatiously or as being without jurisdiction.8. therefore, if there is a total lack of.....
Judgment:
ORDER

T. Chandrasekhara Menon, J.

1. The petitioner herein is the daughter of the respondent. The respondent filed a petition under Section 125 of the Criminal P. C. for maintenance from the petitioner, alleging that he is now unable to maintain himself and the petitioner is duty bound to maintain him. The petitioner who is a graduate in Science as well as in Medicine and Surgery is now working in a Mission Hospital. The claim of the respondent was for maintenance at Rs. 300/- per month.

2. While the petitioner resisted the maintenance claim contending that the respondent is a Homeo practitioner getting a daily income of Rs. 50/- and she it getting only Rs. 300/- per month which is not even sufficient to meet her expenses, at the time of evidence she offered no oral or documentary evidence to meet her father's case which sought support from the oral evidence of the father himself and two other witnesses besides two letters and an application, the letters Exts. P-1 and P-2 written by the petitioner to her mother and father respectively and Ext. P-3 the application which she had entrusted with her father for forwarding the same to the Principal, Medical College in which application she had stated that her father's income was rather meagre.

3. The learned Magistrate held that the petitioner is bound to maintain her father and she was directed to pay Rs. 100/- per month to the respondent. In revision before the Sessions Court filed by the respondent complaining about the meagreness of the amount granted, the present petitioner contended that the father is not entitled to claim maintenance at all and therefore the application for maintenance itself should be dismissed. The respondent had been objected to the consideration of this question of the maintainability of the petition on the ground that the daughter present petitioner, had not filed a revision against the order fixing the liability at Rs. 100/- per month.

4. The learned Sessions Judge pointed out that under Section 397 Cr. P.C., the Court has the right and power to look into the correctness, legality or propriety of any finding or order and also the regularity of the proceedings of the inferior Court, the revision court acts as a correctional court and even without a revision petition by one of the parties, a Sessions Judge has the power to call for and examine the records for the aforementioned purpose. Therefore the daughter could raise the question of jurisdiction of the Magistrate in the revision petition filed by the father. However, after consideration of the other contentions raised by both the parties, the learned Magistrate's order was upheld by the Sessions Court. The present petitioner's contention that under Section 125 of the Cr. P.C. a daughter is not liable to maintain her parents was overruled.

5. The daughter has come up to this Court invoking the inherent jurisdiction of the Court in criminal matters. Mr. Pavithram, learned Counsel for the father in the context questioned the maintainability of this approach by one who did not challenge the order under Section 397 Cr. P.C. In support of his contention he relied on the decision of the Acting Chief Justice Poti in Chandran v. Jagadamma 1981 Ker LT 654 : 1982 Cri LJ 100 (Para 6). There the learned Judge had said;

The absence of definition of the limitations in the exercise of the inherent power is of no consequence and does not enable the High Court to exercise such power in any and every case as if interests of justice call for such exercise. The Criminal p. C. embodies an exhaustive scheme for adjudication by courts. The trial, appellate and revisional jurisdictions are indicated in the provisions of the Code and the Code envisages finality for these decisions. That itself is an express, direct and a unequivocal command to the High Court that such finality should be respected. The limitations in the exercise of inherent power must necessarily be read in the scheme. If nevertheless the Court sits in judgment over decisions conceived as final decisions by the Cri. P. C. the High Court itself may be said to be, guilty of abuse of the process of court. The High Court will decline to exercise inherent power in such cases not because of absence of such power but because of the policy of extreme self-restraint the court has to impose on itself.

6. It might be noted that Poti, Ag. C. J. was only cautioning against the misuse of the inherent power saved under Section 482 Cr. P.C. to review the decisions of Subordinate Courts as if such power enables the court to sit in judgment over them as an appellate or revisional court could do. His Lordship further said:

In a case where a plea for award of maintenance had been tried by a court and maintenance has been awarded and in revision at the instance of the party against whom such award has been made the Sessions Judge has declined to interfere, it is not for this Court to go through the case over again or to find out whether this Court could interfere with the findings on a different approach to the question which this Court may choose to make. Such an exercise would be uncalled for and beyond the scope of the power under Section 482. The Court should guard against such a situation and should not be tempted to interfere merely because, if the court has occasion to go through the evidence afresh perhaps it may choose to take a view different from that taken by the Courts below.

7. No doubt as Fazal Ali J, pointed out in Amar Nath v. State of Haryana : 1977CriLJ1891 where there is an express provision barring a particular remedy the Court cannot resort to the exercise of inherent powers. But this does not mean that even such bar could prevent interference by the High Court under its inherent powers to prevent an abuse of the process of the court or for the purpose of securing the ends of justice. Untwalia, J. said in Madhu Limaye v. State of Maharashtra : 1978CriLJ165 :

As pointed out in Amar Nath's case : 1977CriLJ1891 (supra) the purpose of putting a bar on the power of revision in relation to any interlocutory order passed in an appeal, inquiry, trial or other proceeding is to bring about expeditious disposal of the cases finally. More often than not, the revisional power of the High Court was resorted to in relation to interlocutory orders delaying the final disposal of the proceedings. The Legislature in its wisdom decided to check this delay by introducing Sub-section (2) in See. 397. On the one hand, a bar has been put in the way of the High Court (as also of the Sessions Judge) for exercise of the re-visional power in relation to any interlocutory order, on the other, the power has been conferred in almost the same terms as it was in the 1898 Code. On a plain reading of Section 482, however, it would follow that nothing in the Code, which would include Sub-section (2) of Section 397 also, 'shall be deemed to limit or affect the inherent powers of the High Court.' But, if we were to say that the said bar is not to operate in the exercise of the inherent power at all, it will be setting at naught one of the limitations imposed upon the exercise of the revisional powers. In such a situation, what is the harmonious way out? In our opinion, a happy solution of this problem would be to say that the bar provided in Sub-section (2) of Section 397 operates only in exercise of the revisional power of the High Court, meaning thereby that the High Court will have no power of revision in relation to any interlocutory order. Then in accordance with one or the other principles enunciated above, the inherent power will come into play, there being no other provision in the Code for the redress of the grievance of the aggrieved party. But then if the order assailed is purely of an interlocutory character which could be corrected in exercise of the revisional power of the High Court under the 1898 Code the High Court will refuse to exercise its inherent power. But in case the impugned order clearly brings about a situation which is an abuse of the process of the Court or for the purpose of securing the ends of justice interference by the High Court is absolutely necessary, then nothing contained in Section 397(2) can limit or affect the exercise of the inherent power by the High Court. But such cases would be few and far between. The High Court must exercise the inherent power very sparingly. One such case would be the desirability of the quashing of a criminal proceeding initiated illegally, exatiously or as being without jurisdiction.

8. Therefore, if there is a total lack of jurisdiction in the Magistrate passing the order of maintenance against the daughter, as Mr. N. Sankara Menon contends, I fail to see why the court should not exercise its inherent powers in quashing such proceedings. The question therefore is, is there such a total lack of jurisdiction in this case. According to me, no. Nothing prevents the court in directing maintenance to an impecunious father by the daughter.

9. Section 125(1) of the Code reads as under:

(1) If any person having sufficient means neglects or refuses to maintain-

(a) his wife, unable to maintain herself, or

(b) his legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or

(c) his legitimate or illegitimate child (not being a married daughter) who has attained majority, where such child is, by reason of any physical or mental abnormality or injury unable to maintain itself, or

(d) his father or mother, unable to maintain himself or herself,

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, father or mother, at such monthly rate not exceeding five hundred rupees in the whole, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to time direct.

10. Mr. Sankara Menon relies on the ruling of Gurnam Singh J. of the Punjab and Haryana High Court in Raj Kumari v. Yashoda Devi 1978 Cri LJ 600. The learned Judge said there:

5. The words used in the section show that if a person having sufficient means neglects or refuses to maintain his father or mother, he can be made liable to pay maintenance allowance to them. The words 'any person' and 'such person' show that the liability to provide maintenance to the father and mother, is that of the son and not of the daughter. The Joint Committee, in their report on the bill had made the following recommendation;-The Committee considers that the right of the parents not possessed of sufficient means to be maintained by their son, should be recognized by making a provision that where the father or mother is unable to maintain himself or herself, the order for payment of maintenance may be directed to a son who is possessed of sufficient means. If there are two or more children the parents may seek the remedy against any one or more of them.

Under Section 125 Cr. P.C. 1973, it has not been specifically provided that a daughter is also liable to maintain her parents who are unable to maintain themselves. Under the Hindu Marriage Act a specific provision has been made under which a husband having no Independent income sufficient for his support, has a right to claim maintenance pendente lite and expenses of proceedings from his wife but no such provision has been made under Section 125 of the Code.

6. Under Section 125 of the Code, the father or a husband or a son, as the case may be, is the only person that can be proceeded against. The section does not contemplate proceedings against the mother for maintenance of her illegitimate child. Similarly a father-in-law has not been made liable to maintain the daughter-in-law under Section 125, Cr. P.C. 1973.

7. According to Section 2(y) of the Code 'words and expressions used herein and not defined but defined in the Penal Code (45 of 1860) have the meanings respectively assigned to them in that Code,' Under Section 8 of the Indian Penal Code, the pronoun 'he' and its derivatives are used of any person whether male or female and under Section 11 of the Indian penal Code, the word 'person' includes any company or association or body of persons whether incorporated or not. The words used in Section 125 of the Code are 'any person' and 'such person.' The meanings of the word 'he.' therefore, cannot be applied to the words 'any person' and 'such person' as used in Section 125 of the Code. Moreover, the scheme of Section 125 of the Code, for providing maintenance to the father and mother seems to be that of a son, who is possessed of sufficient means and he can be directed to maintain his father and mother, if they are unable to maintain themselves.' This case had been discussed by the learned Sessions Judge in his order where he said:

It is true that Section 125 has not specifically provided that a daughter is also liable to maintain her parents. The expressions used in Section 125 are 'any person' 'his father or mother' and 'such person.' These expressions are not defined in the Code. Section 2(y) of the Code Kays:

Words and expressions used herein and not defined but defined in the Penal Code have the meanings respectively assigned to them in that code.' So we have to refer to the I.P.C. Section 8 of the I.P.C. reads:

The pronoun 'he' and its derivatives are used of any person, whether male or female.Therefore the expression 'his father or mother' occurring in Section 125 of the Cr. P.C. must be taken to have the meaning 'her father or mother.

5. Section 11 of the I.P.C. deals with the expression 'person.' As per it, the word 'person' includes any company or Association or body of persons, whether incorporated or not. But it is only an inclusive definition and not exhaustive. Hence it cannot be denied that the expression 'person' in Section 11 of the I.P.C. includes a natural person also Sees. 8 and 11 of the I.P.C. must be read together to find out the intention of the legislature. When so done, I come to the conclusion that a daughter is also liable to maintain her parents who have no ostensible means of livelihood. This can only be the logical conclusion. Let us take a case where a father has only daughters and all of them are in affluent circumstances while the father has no independent source of income could it be said that in such a case the father, has no right to claim maintenance under Section 125 from any one of the daughters. In the ruling reported in 1978 Crl. LJ 600 above referred to a passage from the report of the Joint Committee of the Parliament is quoted, it reads:

The committee considers that the right of the parents not possessed of sufficient means, to be maintained by their son should be recognised by making a provision that where the father or mother is unable to maintain himself or herself an order for payment of maintenance may be directed to a son who is possessed of sufficient means. If there are two or more children the parents may seek the remedy against any one or more of them. Here instead of using the expression 'sons' the expression used is 'children'. This is indicative of the intention of the legislature that no distinction was intended to be made between son and daughter. The cumulative effect of all these leads me to the conclusion that under Section 125 of the Cr. P.C. a daughter also has the liability to maintain her parents who have no ostensible means of livelihood. I therefore hold that there is no illegality or irregularity in the order fixing the liability on the respondent.

11. I see no reason to differ from this reasonable conclusion taken by the learned Sessions Judge. It might further be noted that Section 13 of the General Clauses Act also supports the view taken by the learned Sessions Judge.

12. If the daughter is liable under Section 125 of the Code, on the merits of the case or the facts no question of interference by this Court arises especially in view of the fact that the present petitioner has not gone into the Witness-box to speak to her case. The Crl. M. C. is therefore dismissed.


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