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Sabera D/O. Ibrahim Haji Rasul Jujara Vs. Husen Abdul Majid Khatuda and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtGujarat High Court
Decided On
Judge
Reported in(1984)2GLR1012
AppellantSabera D/O. Ibrahim Haji Rasul Jujara
RespondentHusen Abdul Majid Khatuda and anr.
Cases ReferredCaptain Ramesh Chander Kaushal v. Mrs. Veena Kaushal and Ors.
Excerpt:
.....petitioner-wife as well as the opponent-husband, preferred revision applications in the court of learned sessions judge, godhra. it would have been better for both the parties to have settled the amount instead of sitting tight on the legality by raising the aforesaid contention. as the parties are not agreeable in spite of the best efforts, i have to decide the contention as a pure question of law. , whether on compromise or otherwise, must be deemed to be enforceable in the manner provided by sub-section (.3) of section 488. 13. the aforesaid observations clearly indicate that such orders are not to be construed in hyper-technical manner. reported in 1979crilj3 wherein the supreme court has observed to the effect that the constitution has taken special care for the weaker sections of..........of warrant for recovery of the amount of arrears of monthly allowance. as stated by the learned addl. sessions judge, the petitioner had filed:(i) misc. criminal application no. 123 of 1977.(ii) misc. criminal application no. 56 of 1978, and(iii) misc. criminal application no. 141 of 1978.4. thus, on the basis of the order passed in her favour as per the consent purshis filed by the parties, she could effect the recovery of the arrears of maintenance. there is no dispute on the point that such applications were as a matter of fact filed and the amount which fell in arrears was recovered through the process of court every time.5. on april 29, 1979 the petitioner-wife filed an application being misc. criminal application no. 35 of 1979 in the court of j.m.f.c., godhra, under section 127.....
Judgment:

A.P. Ravani, J.

1. It is often said that human wisdom and good sense has limits. But it appears that technical niceties and ingenuous devices invented and adopted with a view to frustrate the ends of justice are limitless. Why is the judicial system respected Is it because it is capable of upholding technicalities regardless of its consequences in real life These questions arise in the background of the maintenance proceedings instituted by the petitioner-wife whose prayer for enhancement of maintenance has been rejected on hyper-technical considerations.

2. Petitioner is the divorced wife of opponent No. 1. The marriage between the parties took place some time in the year 1970. Thereafter it appears that both of them pulled on well together for some time. Out of the wedlock a daughter named Bilkish was born. Within a month or two, after the birth of the daughter, the opponent-husband married a second wife and gave divorce (Talaq) to the petitioner. Sometime in November 1976, the petitioner filed an application being Misc. Criminal Application No. 47 of 1976 in the court of learned J.M.F.C., Godhra. The application was filed claiming maintenance for herself and for the daughter Bilkish. On November 4, 1976 a compromise purshis was filed by the parties and the same was accepted by the Court. On the basis of the compromise purshis the wife was to get Rs. 45/-per month and daughter Blikish was to get Rs. 15/- per month as and by way of maintenance. In all maintenance allowance at the rate of Rs. 60/- per month in favour of both, the petitioner-wife and her daughter, was agreed and ordered to be paid on the basis of consent purshis filed by the parties.

3. The opponent-husband fell in arrears of this monthly allowance every now then. Therefore, the petitioner was constrained to file execution application and pray for issuance of warrant for recovery of the amount of arrears of monthly allowance. As stated by the learned Addl. Sessions Judge, the petitioner had filed:

(i) Misc. Criminal Application No. 123 of 1977.

(ii) Misc. Criminal Application No. 56 of 1978, and

(iii) Misc. Criminal Application No. 141 of 1978.

4. Thus, on the basis of the order passed in her favour as per the consent purshis filed by the parties, she could effect the recovery of the arrears of maintenance. There is no dispute on the point that such applications were as a matter of fact filed and the amount which fell in arrears was recovered through the process of court every time.

5. On April 29, 1979 the petitioner-wife filed an application being Misc. Criminal Application No. 35 of 1979 in the Court of J.M.F.C., Godhra, under Section 127 of the Criminal Procedure Code and prayed that in view of the changed circumstances she was entitled to the monthly allowance at the enhanced rate of Rs. 200/- per month for herself and Rs. 125/- per month for her minor daughter Bilkish. Thus, in all, instead of Rs. 60/- as ordered earlier, a total amount of Rs. 375/- per month towards maintenance for both the petitioner-herself and for minor daughter, was prayed for.

6. In response to the notice served upon the opponent-husband, he appeared in the trial court and raised inter alia the technical contention that the order passed in Misc. Criminal Application No. 47 of 1976 was not an order under the provisions of Section 125 of the Criminal Procedure Code. It was merely an agreement, a compromise only. There is no order of the Court. Therefore, no application under Section 127 of the Criminal Procedure Code was maintainable. The learned Magistrate was not influenced by this demon of technicality. Hence, the trial court rejected this technical contention. The learned Magistrate, after hearing the parties and after considering the merits of the case passed an order dated January 30, 1980. The trial court enhanced the amount of maintenance to Rs. 110/- and to Rs. 50/- per month payable to the petitioner and minor daughter Bilkish respectively. Against this order dated January 30, 1980, both, the petitioner-wife as well as the opponent-husband, preferred revision applications in the court of learned Sessions Judge, Godhra. It is stated at the Bar that the petitioner-wife who had filed Criminal Revision Application claiming further maintenance and who had felt that the maintenance amount awarded was not adequate, ultimately withdrew the revision application. On the other hand the opponent-husband pursued the revision application filed by him, i.e. Criminal Revision Application No. 27 of 1980 of the court of learned Sessions Judge Panchmahals at Godhra.

7. There, the petitioner-wife and minor daughter suffered a lethal blow. They lost solely on technical ground. In para 6 of the judgment, the learned Addl. Sessions Judge observed that, even after the arguments were heard, the opponent-husband was ready to enhance the amount of maintenance to Rs. 120/- per month for both, i.e., for the petitioner and minor daughter Bilkish. However, the petitioner claimed Rs. 130/-per month in all. This was not acceptable to the opponent-husband. The learned Addl. Sessions Judge has observed:.It would have been better for both the parties to have settled the amount instead of sitting tight on the legality by raising the aforesaid contention. As the parties are not agreeable in spite of the best efforts, I have to decide the contention as a pure question of law.

8. The learned Addl. Sessions Judge ultimately upheld the technical contention raised by the opponent-husband and held that there was no 'order' under Section 125 of the Criminal Procedure Code. It was only an agreement between the parties and therefore, in the opinion of the learned Addl. Sessions Judge, the trial court had committed an error of law in allowing the application under Section 127 of the Criminal Procedure Code. Hence, he allowed the revision application of the opponent-husband and set aside the order passed by the trial court in Misc. Criminal Application No. 35 of 1979 by his judgment and order dated September 24, 1980.

9. The petitioner-wife has preferred this revision application for herself and for her minor daughter. The short question is, can the demon of technicality be permitted to snatch away the bare minimum of livelihood of a divorced wife and her minor daughter

10. The learned Addl. Sessions Judge interpreted the earlier order of the learned Magistrate dated November 4, 1976 to be an agreement only. While doing so the learned Addl. Sessions Judge did not take into consideration the order passed by the trial court below application Exh. 14 dated April 17, 1979. By application, Exh. 14, the petitioner-wife had prayed that the arrears of maintenance be recovered through the process of the Court. She had further prayed that the opponent-husband be directed to deposit the amount in Court. In that application the opponent-husband had raised the same contention that there was no order as contemplated under the provisions of Section 125 of the Criminal Procedure Code. It is merely an agreement, a compromise without there being any order by the Court. At that stage the petitioner-wife relied upon the judgment of this High Court in Criminal Revision Application No. 418 of 1978 decided on November 3, 1978 by M.P. Thakkar, J. as he then was. This aspect has been referred to by the trial court in its order also. It may further be noted that the earlier order passed by the learned Magistrate on November 4, 1976 in Misc. Criminal Application No. 47 of 1976 was not challenged by the opponent-husband. He had acquiesced in it and the same was acted upon by all concerned.

11. Be it noted that both the parties submitted a compromise purshis as far back as on November 4, 1976 in Misc. Criminal Application No. 47 of 1976 providing that the opponent-husband shall pay monthly allowance of Rs. 45/- for the petitioner-wife and Rs. 15/- for the minor daughter. The compromise purshis was recorded by the learned Magistrate. The compromise purshis was accepted and thereafter the matter was disposed of. Just as this High Court has held in Criminal Revision Application No. 418 of 1978 decided on November 3, 1978 by M.P. Thakkar, J. as he then was, the learned Addl. Sessions Judge ought to have seen that by accepting the compromise the learned Magistrate put upon the same the imprimature of the court. The parties had voluntarily submitted to the court. The parties had invoked the jurisdiction of the court under Section 125 of the Criminal Procedure Code. Three times thereafter by filing Misc. Criminal Application Nos. 123 of 1977, 56 of 1978 and 141 of 1978, the recovery was sought through execution machinery. These recovery applications were made on the basis of the order passed by the learned Magistrate on November 4, 1976. In one such application the contention was raised by the husband that the consent order passed on November 4, 1976 was no order and therefore, execution for recovery of arrears cannot proceed further. That was negatived by the court. Against that order so far no appeal or revision has been filed. On the same basis the petitioner-wife prayed that the amount of maintenance granted earlier be enhanced. Now, when the petitioner-wife requested the court to enhance the maintenance for herself and minor daughter, the technical plea on the same ground was again raised. But the learned Magistrate rejected the same. On hyper-technical ground the learned Addl. Sessions Judge has accepted the same which is highly improper and deplorable. The view taken by the learned Addl. Sessions Judge is not only unjust and improper but it is palpably wrong.

12. The learned Addl. Sessions Judge relied upon the decision of the Calcutta High Court in the case of Debjani Biswas v. Rasiklal Biswas reported in : AIR1941Cal558 and also referred to a decision of the Bombay High Court in the case of Syed Abbas v. Kaneez Sakina reported in 1976 Cri. L.J. 47. With respect, the learned Addl. Sessions Judge has not correctly understood the decision of the Calcutta High Court. He ought to have read the entire judgment and particularly the concurring judgment by Bartley, J. which reads as follows:

I agree. I would only add that in my opinion an order lawfully made by a Magistrate under Section 488, Criminal P.C., whether on compromise or otherwise, must be deemed to be enforceable in the manner provided by Sub-section (.3) of Section 488.

13. The aforesaid observations clearly indicate that such orders are not to be construed in hyper-technical manner. The judgment of the Bombay High Court is based on the reading of the consent terms produced before the High Court in that case and such as it turns on the facts of that case. The learned Addl. Sessions Judge ought to have taken into consideration the principle laid down by the Supreme Court in the case of Captain Ramesh Chander Kaushal v. Mrs. Veena Kaushal and Ors. reported in : 1979CriLJ3 wherein the Supreme Court has observed to the effect that the Constitution has taken special care for the weaker sections of the society like women and children. This must inform the interpretation if it has to have social relevance. 'So viewed, it is possible to be selective in picking out that interpretation out of the two alternatives which advances the cause - the cause of the derelicts.'

14. It is most unfortunate that the learned Addl. Sessions Judge has made an attempt to distinguish the judgment of this High Court without looking at the substance and the principle laid down therein. The first paragraph of the judgment of this High Court in Cri. Rev. Application No 418 of 1978, referred to hereinabove reads as follows:

The learned Sessions Judge, Panchmahals at Godhra, in exercise of revisional jurisdiction has passed an order which defeats the ends of justice and which is the result of an extremely unreasonable, technical and narrow interpretation placed by him on the order passed by the learned trial Magistrate. It is extremely deplorable that the learned Sessions Judge should have exercised revisional powers in this manner in order to defeat the ends of justice and should have taken this hyper-technical view, which is also not justified on merits, five years after the learned Judicial Magistrate, First Class, directed the husband (respondent No. 1) to pay a monthly allowance of Rs. 52/- per month for maintenance of his wife by consent on January 6, 1973.

15. Incidentally, this case also arises from the same district. The fact situation is also almost similar. In that case the learned Magistrate had accepted the consent terms on January 6, 1973. The husband failed to pay the monthly allowance in terms of the consent. The wife had to appraoch the Court of learned Magistrate for execution of the order on three occasions. A warrant had to be issued and recovery was effected by having recourse to execution machinery. When he committed a default once again, the wife had to approach the Court for the fourth time. The learned Magistrate again issued a recovery warrant. And this time the husband approached the learned Sessions Judge by way of a revisional application contending that, though on the past three occasions he had not objected to the recovery warrant being issued in pursuance of the consent order of maintenance, this time he wanted to challenge that order on the ground that there was no effective order against him. The contention found favour with the learned Sessions Judge. But while reversing the judgment of the Sessions Court this Court observed:.This compromise purshis has been recorded by the learned trial Magistrate who has disposed of the matter on January 6, 1973 in terms of compromise. Thus, the order of maintenance has become an order of the Court for maintenance by consent. It has the imprimature of the Court. It in terms provides that recovery can be made by recourse to a proceeding under Section 489 of the Criminal Procedure Code. Even so the learned Sessions Judge thought that because the learned Magistrate has not so couched his order by himself directing the husband to pay the maintenance allowance, the order was not an executable order. There was no warrant for placing such a palpably unreasonable and hyper-technical interpretation on the order passed by the learned Magistrate in 1973 pursuant to which recovery has been made on three occasions in the past....

16. Unfortunately, the learned Addl. Sessions Judge chose not to follow the aforesaid decision of this High Court, which was cited before him. He distinguished the same by adopting hair-splitting arguments in utter disregard of the substance of the matter. It must be realised by the lower judiciary that the decisions of the High Court are required to be applied by them and not doubted. When the decisions of this High Court are cited before them, their attempt should be to follow the same and not to disregard or avoid by adopting technical devices and relying on hair-splitting arguments. It is most deplorable that in the instant case the learned Addl. Sessions Judge has not relied upon the decision of this High Court in Criminal Revision Application No. 418 of 1978. This was even brought to the notice of the learned Addl. Sessions Judge. The learned Addl. Sessions Judge tried to follow the decision of the Bombay High Court in the case of Syed Abbas (supra). He must have realised that the decision of the Bombay High Court was not binding upon him. He must have further realised that it was his duty to follow the decision of this High Court and not to follow the same was not only highly improper but in a given case it may even amount to contempt of court also.

17. Judicial propriety and discipline demands that the decision of the High court be followed by the lower courts in the State and applied without raising doubts about the correctness of the same. It must also be realised that the achievement of some technical excellence is not the goal of the judiciary. The courts can command respect of the people only if they aim at dispensing justice irrespective of technical in-roads which may be created in their way. Whenever the courts may opt in favour of the technicalities in preference to the claims of substantial justice, the courts are likely to be seen by public with cynicism and/or ridicule.

18. In above view of the matter the judgment and order passed by the learned Addl. Sessions Judge requires to be quashed and set aside. In the result, this revision application is allowed and the judgment and order passed by the learned Addl. Sessions Judge in Criminal Revision Application No. 27 of 1980 is quashed and set aside and the judgment and order passed by the learned J.M.F.C., Godhra, in Criminal Misc. Application No. 35 of 1979 is restored. Rule made absolute accordingly.


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