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Parmar Chimanbhai Ghemabhai Vs. Pasiben D/O. Parmar Ghemabhai Haribhai and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtGujarat High Court
Decided On
Judge
Reported in(1978)19GLR983
AppellantParmar Chimanbhai Ghemabhai
RespondentPasiben D/O. Parmar Ghemabhai Haribhai and anr.
Cases ReferredRabari Nagjibhai Hafibhai v. Bai Zaver
Excerpt:
.....of a warrant for the recovery of does exceeding the period of one year immediately preceding the date of application is bad in law as violative of the first proviso to sub-section (3) of section 125 of the code. provided that if the magistrate satisfied that the person against whom an order for payment of maintenance is proposed to be made is wilfully avoiding service, or wilfully neglecting to attend the court, the magistrate may proceed to hear and determine the case ex parte and any order so made may be set aside for good cause shown on an application made within three months 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. parikh invited my attention to paragraph of the order dated..........the amount of maintenance which was in arrears for six months and rs. 40/- awarded as coils by the learned magistrate notice to show cause was directed against the husband but he did not enter an appearance on the date fixed for be hearing of the application and hence the learned magistrate ordered distress warrant to issue against him. thereupon on 4th june 1976? the husband filed an application for setting aside, the order of maintenance passed by the learned magistrate 'on the ground that the service of summons by registered post was not a valid service. the learned magistrate accepted the contention of the husband and set aside the ex parte order dated 31st december, 1975 and directed a fresh inquiry into the matter. in response to the summons served on the husband he entered an.....
Judgment:

A.M. Ahmadi, J.

1. The material facts giving rise to this revision application by the husband, against whom an order of maintenance has been passed, may be stated as under:

2. The petitioner, Chimanbhai Ghemabhai was wedded to the first respondent. Pasiben. On 18th August. 1975 the wife filed an application No. 36/75 in the court of the learned J.M.F.C. Kapadvanj under Section 125 of the Code of Criminal Procedure, 1973 hereinafter called 'the Code', seeking maintenance from, her husband. Summons of that application was served on the husband by registered post but he did not enter on appearance and allowed the matter to proceed ex parte. The learned J.M.F.C. proceeded ex parte and by him order dated 31st December, 1975 he awarded maintenance to the wife at the rate of Rs. 60/- per moths from the date on the application i.e. 18th August. 1975. The wife then took out recovery proceedings on 12th March. 1976 for the amount of maintenance which was in arrears for six months and Rs. 40/- awarded as coils by the learned Magistrate Notice to show cause was directed against the husband but he did not enter an appearance on the date fixed for be hearing of the application and hence the learned Magistrate ordered distress warrant to issue against him. Thereupon on 4th June 1976? The husband filed an application for setting aside, the order of maintenance passed by the learned Magistrate 'On the ground that the service of summons by registered post was not a valid service. The learned Magistrate accepted the contention of the husband and set aside the ex parte order dated 31st December, 1975 and directed a fresh inquiry into the matter. In response to the summons served on the husband he entered an appearance through an advocate and obtained time for filing his written statement challenging the averments made in the petition by his wife. It appears that time was granted but the husband did not file his statement and hence on the last occasion extension of time was granted on condition of payment of Rs. 25/- by way of costs. It is common around that this condition precedent regarding payment of costs was not satisfied by the husband and, therefore, the learned trial Magistrate refused to take his written statement on record. Ultimately at the hearing of the application, the wife gave a purshis stating that her evidence recorded on the previous occasion in the same proceedings be treated as evidence in the fresh inquiry as she had nothing further to add. On that day admittedly the husband was absent but his learned advocate was present in court and he did not make any request to the court that he desired to cross-examine the wife or lead evidence in his defence. Ultimately on 27th April, 1977, the learned trial Magistrate passed a fresh order in favour of the wife awarding maintenance at the rate of Rs. 60/- per month from the date of the application. After this order was passed, the wife made an application on 20th June, 1977 for recovery of the amount of maintenance which was in arrears from 18th August, 1975 to 20th June, 1977. In the said proceedings, the learned Magistrate passed an order of attachment of the property of the husband and it is against this order that the present revision application is filed,

3. Mr. Parikh, the learned advocate for the petitioner-husband, raised the following two contentions before meat the hearing of this revision application:

(1) The order of maintenance passed by the learned trial Magistrate is not capable of execution as it is a nullity, in that, it proceed on a contravention of Sub-section (2) of Section 126 of the Code, and

(2) The issuance of a warrant for the recovery of does exceeding the period of one year immediately preceding the date of application is bad in law as violative of the first proviso to Sub-section (3) of Section 125 of the Code.

Except these two submissions, no other submission was made by Mr. Parikh, the learned advocate for the husband and I shall, therefore, proceed to answer these submissions in the order in which I have set them out.

(4) Section 126(2) of the Code reads as under:

(2). All evidence in such proceedings shall be taken in the presence of the person against whom an order for payment of maintenance is proposed to be made, or, when his personal attendance is dispensed with, in the presence of his pleader, and shall be recorded in the manner prescribed for summons-cases.

Provided that if the Magistrate satisfied that the person against whom an order for payment of maintenance is proposed to be made is wilfully avoiding service, or wilfully neglecting to attend the court, the Magistrate may proceed to hear and determine the case ex parte and any order so made may be set aside for good cause shown on an application made within three months 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.

It is necessary to bear in mind that the impugned order of maintenance was passed in the fresh inquiry conducted by the learned trial Magistrate on 27th April, 1977. No application was made thereafter to the learned trial Magistrate under the proviso to Sub-section (2) of Section 126 of the Code for setting aside the ex parte order made against him. Instead the petitioner-husband filed the present revision application in this Court on 9th November, 1977 challenging the impugned order directing the issue of a warrant for the attachment of his property on the ground that the order of maintenance is ab Initio void and, therefore, nullity. In support of his contention that the impugned order of maintenance is a nullity, Mr. Parikh invited my attention to paragraph of the order dated 27th April, 1977 wherein it is mentioned that the husband had, in the fresh inquiry, entered an appearance through an advocate but had failed to file his written statement in answer to the petition. He next invited my attention to the observations made in paragraph 5 wherein while answering point no. I the learned Magistrate has observed that the husband had not complied with the direction regarding the payment of costs imposed for filing the written statement and has also chosen; to remain absent at the hearing of the application. From these statement made in the judgment of the learned trial Magistrate, Mr. Parikh pointed out that in response to the summons issued by the learned trial Magistrate in the fresh inquiry the husband had entered an appearance through an advocate and for reasons stated earlier, on being unable to file his written statement in answer to the main application he chose to remain absent at the date of the hearing of the application. There is no doubt that the observations made in the judgment clearly indicate that at the date of hearing of the fresh inquiry the husband was absent and on the purshis of the wife to treat her earlier evidence as evidence in the fresh inquiry, the learned Magistrate disposed of the application in the presence of the advocate for the husband who did not make any request to cross-examine the wife. In the backdrop of these facts, Mr. Parikh submitted that in view of Sub-section (2) of Section 126 of the Code as the evidence of the wife was recorded in the absence of the husband, the mandatory requirement of that sub-section was violated and, therefore, the order was a nullity and could not be executed against the husband. He, therefore, submitted that the warrant issued by the learned trial Magistrate directing attachment of the property of the husband could not be implemented as it flows from a null and void order of maintenance passed by the learned Magistrate. I do not see any substance in this contention. Sub-section (2) of Section 126 of the Code, which I have, reproduced earlier, says that all-evidence shall be taken in the presence of the person against whom an order for payment of maintenance is proposed to be made or when his personal attendance is dispensed with, in the presence of his pleader. In the instant case, the notice served on the husband, which was made available to this Court by Mr. Parikh on demand, shows that the husband was directed to appear on the appointed day either in person or through an advocate. The admitted facts set out earlier show that the husband chose to appear through an advocate in the fresh inquiry commenced; against him. It would, therefore, appear that the learned trial Magistrate had given an option to the husband at the time of issuance of the notice either to appear in person or through a lawyer. Therefore, the personal) attendance was clearly dispensed with by the learned trial Magistrate the time when he issued the show cause notice and taking advantage of that fact the husband entered appearance through an advocate. In these circumstances, it cannot be said tint the learned trial Magistrate violated the mandate of Sub-section (2) of Section 126 of the Code.

5. An identical question arose before this Court in Cri. Reference No. 41/66 decided on 22nd March, 1968 by Shelat, J. (as he then was) in the context of Sub-section (6) of Section 488 of the old Code, which was in pari materia with Sub-section (2) of Section 126 of the new Code, with which we are presently concerned. In that case also the notice required the husband to appear either in person or through his pleader to show cause why the maintenance claimed by the wife should not be granted. It was further stated in the notice that on his failing to remain present, the court will pass suitable orders in his absence. On the wife's behalf the contention made Out from the notice was that the learned Magistrate bad dispensed with his presence at the time of the hearing of the application by directing him to appear through an advocate, and therefore, if the matter was proceeded with in the presence of his advocate it could hardly be said that there had been a violation of Sub-section (6) of Section 489 of the old Code. Dealing with this contention, Shelat, J. observed as under:

As pointed out hereabove, the court has been invested with the powers and discretion enough to either require his attendance in court or even permit him to appear through his pleader. Such a notice issued against the opponent by (he learned Magistrate himself clearly gives him an option to remain present either personally or through his advocate at the time of hearing of the matter, and if, therefore, he remains absent on any day the learned Magistrate cannot say-that his presence was not dispensed with, and that the appearance of his pleader would not be enough or sufficient compliance of the notice in the case.

With respect, I am in agreement with the view expressed in the above matter and I come to the conclusion that in the instant case also, as the impugned order of maintenance was passed following an inquiry held in the presence of the learned advocate for the husband, it cannot lie in the mouth of the husband now to contend that the order is a nullity, in that, it was passed in disregard of Sub-section (2) of Section 126 of the Code. I, therefore, do not see any merit in the first contention and reject it.

6. The second contention bears on the question of limitation contained in the first proviso to Sub-section (3) of Section 125 of the Code. 'That sec-section reads as under.

(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 the manner provided for levying fines, and may sentence such person, for the whole or any part of each months 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 no warrant shall be issued for the recovery of any amount due under this section 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.

In order to appreciate this contention, a few relevant dates may be mentioned once again. The application was originally made by the wife on 18th August, 1975. The ex parte order was passed in her favour on 31st December, 1975 awarding maintenance at the rate of Rs. 60/- per month from the date of the application. Thereafter the wife filed to-execute this order by taking out a distress warrant whereupon the husband made an application dated 4th June, 1976 for setting aside the ex parte order. In pursuance of this application made by the husband, the ex parte order was set aside and fresh inquiry was directed. In the fresh inquiry; the learned trial Magistrate passed an order of maintenance on 27th April, 1977 awarding Rs. 60/- per month from the date of the application, i.e. 18th August, 1975. The wife then took out recovery proceedings on 20th June, 1977 in respect of the arrears of maintenance from the date of the application i.e. 18th August, 1975 till 20th June, 1977. As tee recovery proceedings are in respect of a period exceeding One year, it is contended on, behalf of the husband, relying on the first proviso to Sub-section (3) of Section 125 that the order regarding issue of a warrant for the amount due in respect of the said period cannot be sustained.

7. The first proviso to Sub-section (3) of Section 125 prescribes a period of limitation. The provisions in Chapter IX of the Code are for the welfare of neglected wives, children and parents. It is well known that the object of arming the Magistrate with the power to order payment of maintenance to a wife under ibis section is to prevent vagrancy. The statutory right conferred by this section is intended to compel the husband to honour his obligation in provide food, shelter and clothing to his deserted wife in prevent near from going astray. These provisions are not in the nature of penal provisions out are welfare provisions and hence the rule of strict construction cannot be invoked. The first proviso which enacts a rule of maintenance must, therefore, receive a liberal construction as it is not intended in come to the rescue of a defaulting husband who neglects to honour his allegations and seeks to avoid payment of maintenance to his wife though ordered by a competent court. According to Sub-section (i) allowance can be ordered from the date of the order or from the date of the application for maintenance. One thing is however clear that unless there is an order for the payment of maintenance made by a competent court, the wife cannot expect to execute the order under Sub-section (3) of Section 125 of the Code. It is only after a husband is ordered to pay maintenance and he fails to pay the same that a warrant can issue against the defaulter for non-compliance. The proviso then steps in and provides that no warrant shall issue for the recovery of any amount due unless the application is made within one year from the date on which it became due. Can it then be said that the amount of maintenance in respect of the period prior to the date of the order under Sub-section (1) became due even before the order was passed? Suppose a. wife makes an application under Sub-section (1) of Section 125 for maintenance on. 1st January, 1975 and the application is ultimately disposed of by the learned Magistrate on 31st December, 1977 and by the order the maintenance becomes payable from the date of the application i.e. 1st January, 1975, can it be said that the remedy under Sub-section (3) is barred in respect of the period from 1st January, 1975 to 31st December, 1976? It is difficult to hold that such was the intention of the Parliament in enacting the first proviso to Sub-section (3) of Section 125 of the Code. The maintenance in respect of the period from 1st January, 1975 to 31st December 1976 because due only after the order fixing the maintenance was passed by the learned Magistrate, for otherwise, the wife cannot seek to recover the amount from her husband even though she is not to blame for the delay it the disposal of the application. Therefore, so far as the amount of maintenance of the period prior to the date of the order is concerned, it becomes due from the date of the order under Sub-section (1) of Section 121 of the Code. If the view canvassed before me on behalf of the husband is accepted, it would encourage the person against whom the order for payment of maintenance is proposed to be made to protract the proceedings with a view to rendering the claim in respect of the period exceeding one year stale. Such cannot be and is not the legislative intent. Therefore, the expression 'from the date on which it became due must receive a liberal interpretation and be construed to mean from the date on which it became recoverable. I am, therefore, unable to accept the contention urged before me by Mr. Parikh on behalf of the husband on the construction of the first proviso to Sub-section (3) of Section 125 of the Code.

8. Mr. Parikh placed strong reliance on a decision of this Court in Rabari Nagjibhai Hafibhai v. Bai Zaver d/o. Meva Visa and Anr. 15 G.L.R. 153. In that case, the ex parte order was passed In favour of the wife on 15th July, 1970 fixing the maintenance at the rate of Rs. 100-/ per month. The husband filed a Misc. Application on 27th July, 1970 for setting aside that order. That application was dismissed on 6th December, 1971. He filed a revision application against the order in the Sessions Court but that application also failed. The wife then took out recovery proceedings by an application dated 5th January, 1972 to recover the arrears of maintenance of 34 months for the period between 4th February 1969 and 31st December, 1971. The husband filed an application for cancelling the maintenance order on the ground that he was ready and willing to keep his wife with him. Both the applications were heard together and the learned Magistrate dismissed the husband's application' and allowed the life's recovery application by his order dated 12th June, 1972. It will appear from the above facts that after the ex parte order was pared in favour of the wife on 15th July, 1970 she did not take any action for executing this order till she took out recovery proceedings on 5th January, 1972. There was nothing to preclude the wife to take out recovery proceedings immediately after 15th July, 1970. Even though the' husband had filed an application for setting aside the ex parte order, the court had not granted stay of execution of the ex parte order of 15th July, 1970 and, therefore, the wife was free to execute the order. And recover the maintenance amount becoming due to her under that order from time to time. It was in these circumstances that this Court relying on the 2nd proviso to Sub-section (3) of Section 488 of the old Code held that the order directing issue of warrant for levying the amount for the period from 4-2-69 to 31-12-71 could not be sustained. The court directed that the warrant to be issued levying the amount towards the arrears of maintenance must be for the period from December 1970 to December, 1971. The facts of the present case are quite different from the facts of that case and, therefore, in my opinion, this decision is of no assistance to the learned advocate for the husband. For the above reasons, I do not see any substance in the second contention also.

In the result, therefore, this application fails and is dismissed. Rule discharged.


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