Punjab-Haryana High Court
Pavittar Singh vs Bhupinder Kaur And Anr. on 1 February, 1988
Equivalent citations: 1988CRILJ1624
Author: M.M. Punchhi
Bench: M.M. Punchhi
ORDER M.M. Punchhi, J.
1. Criminal Misc. No. 4262-M of 1987 and Criminal Misc. No. 5514-M of 1987 shall stand disposed of by this common order. The matter in controversy arose like this:
Pavittar Singh is married to Bhupinder Kaur. They are the respective petitioners in these two cases. Bhupinder Kaur, for herself and for her minor daughter Harkirat Kaur, filed a claim for maintenance against Pavittar Singh under Section 125 of the Code of Criminal Procedure (for short the 'Code') before the Judicial Magistrate 1st Class, Malerkotla. The application was resisted, but during the course thereof a settlement came about between the parties. As a result thereof, the application was disposed of as dismissed. The order is to the following effect:
Present: Parties' counsel.
Statements of the parties recorded vide which it comes out that a compromise has been effected between them without any precondition. The applicant is ready to come back in the house of the respondent as his wife and the respondent is ready to receive her back. In view of these circumstances, the application is disposed of as dismissed File be consigned to the record room.
Announced: 14-7-86. Sd/- J.M.I.C. Malerkotla.
The parties fell out immediately thereafter. Two days later Pavittar Singh, the husband, reported to the learned Magistrate that his wife had left him. A couple of days later Bhupinder Kaur too apprised the learned Magistrate by means of an application that she had been turned out and asked for the revival of proceedings. The learned Magistrate thereupon revived the proceedings but after giving an opportunity to the husband to state his case. The case was restored on the joint concession of the parties on August 20, 1986. The joint statement of the parties was that the earlier file be restored and decided without any objection on their behalf. Trial was, thus, resumed and finally on August 25, 1986, the learned Magistrate granted a sum of Rs. 250/- as maintenance to the wife and Rs. 175/- per mensem as maintenance to the minor daughter from the date of the order.
2. The parties filed two cross petitions before the Court of Session. The Additional Sessions Judge, Sangrur, dismissed both of them. The claim of the wife for enhancement was rejected despite the finding recorded by the learned Magistrate that the husband was owning and possessing 70 Kanals of Chani land in district Kurukshetra, which was suggestive of the fact that he had a sizable income enabling him to pay maintenance even at a more rate. The plea of the husband that the resumed trial was void ab initio for it violated the provisions of Section 362 of the Code, did not cut any ice with the learned Additional Sessions Judge. Now, to press their respective claims in that regard, the parties have filed these two respective petitions.
3. The primary question is whether the learned Magistrate, with or without the consent of parties, had the jurisdiction to resume trial. It is totally incidental that the parties herein did give express consent for the resumption of trial waiving all objections in that regard. If the learned Magistrate had no jurisdiction to resume trial, consent of parties could not have conferred that jurisdiction. But if the learned Magistrate had the power to resume trial, then obviously consent of both parties was not necessary. Trial could be resumed even at the askance of one of them if there was justification for the purpose.
4. The primary shield of the husband is Section 362 of the Code. It reads as follows:
Court not to alter judgment.- Save as otherwise provided by this Code or any other law for the time being in force, no Court, when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error.
5. It is plain from the reading of the Section that the Court is debarred, after signing its judgment or final order disposing of a case, from altering or reviewing the same except to correct a clerical or arithmetical error. The stress is on "judgment" or "final order" disposing of a case. Now what is "judgment" or "final order" is available from the conjoint reading of Sections 353 and 354 of the Code. The relevant extracts from these two Sections are culled out below:
353. Judgment.- The judgment in every trial in any Criminal Court of original jurisdiction shall be pronounced in open Court by the Presiding Officer immediately after the termination of the trial or at some subsequent time of which notice shall be given to the parties or their pleaders,
354. Language and contents of judgment.-(1) Except as otherwise expressly provided by this Code, every judgment referred to in Section 353.
(a)....
(b) shall contain the point or points for determination, the decision thereon and the reasons for the decision;
(c)and(d)....;
(2) to (5)....
(6) Every order under Section 117 or subsection (2) of Section 138 and every final order made under Section 125, Section 145 or Section 147 shall contain the point or points for determination, the decision thereon and the reasons for the decision.
6. The sum and substance of Sections 353 and 354 of the Code, so far as they are applicable to the kind of trial under Section 125 of the Code is concerned, shows that the "judgment" or "final order" made by a Criminal Court of original jurisdiction is that "judgment" or "final order" which is the outcome after the termination of the trial and must embody therein point or points for determination, the decision thereon and the reasons for the decision It is thereafter that it qualifies to be a "judgment" or "final order" disposing of a case, which is unalterable or non-reviewable in terms of Section 362 of the Code. To put it differently, especially when 'there is no legal impediment in the way, if the Magistrate holding trial under Section 125 of the' Code does not terminate the trial (it being a summons case), by concluding the trial of a "summons-case" in accordance with Chapter XX (Sections 251 to 255 of the Code), does not prepare the "judgment" or "final order" in the language of the Court containing the point or points for determination and the decision thereon together with reasons, though disposing of a case, it would not be a "judgment" or "final order" to which the bar under Section 362 of the Code is attracted. No judgment either way has been cited before me by the learned Counsel for the parties to take a view different than the one which I have taken heretofore. And on the view aforetaken, it becomes plain that the learned Magistrate, while disposing of the case on July 14, 1986, had neither prepared a "judgment" nor a "final order" unalterable or non-reviewable under Section 362 of the Code. Similarly, the learned Magistrate having chosen to recall that order and restoring the file to his board and resuming the trial, cannot be said to have involved any review or alteration to his judgment or final order, for opinion had been prepared by him up to that point of time. Thus, I am of the considered view that resumption of trial by the learned Magistrate was not without jurisdiction. He was perfectly within his right to grant relief to the wife in resuming the trial. He could have done so on the application of the wife herself even if not consented to by the husband.
7. The interpretation given to the provisions afore-dealt with, besides being liberal and intent oriented, is also purposive in the light of the scheme and purpose of Chapter IX of the Code providing for maintenance of wives, children and parents. That Chapter is studded in the Code of Criminal Procedure to stop vagrancy and to provide instant succour to destitute wives, children and parents. Any interpretation of the provisions governing applications of maintenance of wives, children and parents in the context have to be given a purposive and liberal interpretation so that the purpose aforesaid is achieved rather than thwarted or frustrated. I would, on that stance, even go to the extent of leaning in favour of the resumption of trial rather than making it incumbent on the destitute wives, children and parents to file fresh petitions for the same cause of action for which, concededly, there is no bar. Thus, it seems to me that there was no impediment in the way of the learned Magistrate to have resumed the trial to carry out the purpose of Chapter IX of the Code.
8. For the aforesaid reasons, Criminal Misc. No. 4262-M of 1987 preferred by the husband would merit dismissal.
9. The cross petition of the wife for enhancement would require partial allowance on the recorded findings of the Courts below. I find that the husband did own and possess 70 Kanals of Chahi land in district Kurukshetra in Haryana and having regard to the growing price index of commodities, both the wife and the daughter amongst themselves should have at least had a sum of Rs. 500/- per mensem as maintenance, which, when split, would mean Rs. 300/- per mensem for the wife and Rs. 200/- per mensem for the daughter. The condition and income of Chahi land in district Kurukshetra in Haryana are not unimaginable and the Court can guage in the circumstances the capacity of the husband to pay to his wife and daughter. The figure afore arrived at is the right maintenance for the wife and the daughter in the circumstances.
10. The petition of the wife (Criminal Misc. No. 5514-M of 1987) needs to be allowed to the extent afore indicated.
11. For the foregoing reasons, Criminal Misc. No. 4262-M of 1987 is dismissed and Criminal Misc. No. 5514-Mof 1987 is partially allowed to the extent aforementioned.