Chattisgarh High Court
Smt. Kavita Singh vs Basant Kumar Singh on 18 August, 2022
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AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
CRR No. 529 of 2022
1. Smt. Kavita Singh W/o Sri Basant Kumar Singh Aged About
41 Years R/o Qr. No. 4-D, Street No. 19, Khursipara, Bhilai,
C.G., Presently Residing Shantinagar, Gali 5, Sai Kripa
Bhavan, Vishrampur, Police Station Vishrampur, Tahsil and
District- Surajpur, Chhattisgarh.
2. Shreyansh Kumar Singh @ Pranjal S/o Shri Basant Kumar
Singh Aged About 13 Years Through Applicant 1 Mother
Smt. Kavita Singh, R/o Qr. No. 4-D, Street No. 19,
Khursipara, Bhilai, C.G., Presently Residing Shantinagar,
Gali 5, Sai Kripa Bhavan, Vishrampur, Police Station
Vishrampur, Tahsil and District- Surajpur, Chhattisgarh.
---- Applicants
Versus
Basant Kumar Singh S/o Shri Virendra Pratap Singh Aged
About 43 Years R/o Qr. No. 4-D, Street No.19, Khursipara,
Bhilai C.G., Presently In Service At Pgt English Kendriya
Vidyalaya, Durg, Chhattisgarh. ---- Non-Applicant
For Applicants : Shri Raja Sharma, Advocate
For Non-Applicant : Shri T.K. Jha, Advocate
Hon'ble Shri Justice Rakesh Mohan Pandey
Order on Board
18.08.2022
1. Lord Cairns, L.C. said in Rodger V. Comptoir
D'Escompte de Paris 1871 LR 3 PC 465 (ER P.125)
delivered on 23rd January, 1871:
"One of the first and highest duties of
all courts is to take care that the act of
the court does no injury to any of the
suitors, and when the expression, 'the
act of the court' is used, it does not
mean merely the act of the primary
court, or of any intermediate court of
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appeal, but the act of the court as a
whole from the lowest court which
entertains jurisdiction over the matter
up to the highest court which finally
disposes of the case."
2. The applicants herein have filed the instant criminal revision
against the order dated 04.02.2022 passed in Civil Suit No.
437/2022 by the Family Court Surajpur, District- Surajpur
(C.G.) whereby the application moved by the applicants
under Section 125 (3) of Code of Criminal Procedure (for
short 'Cr.P.C.') for grant of arrears of the maintenance from
17.04.2015 to 09.04.2019 has been rejected.
3. The case of the applicants in nut shell is that the application
under Section 125 of CrPC filed by the applicants herein
against non-applicant who is husband of applicant No.1 &
father of applicant No.2, on the ground that the marriage
between the applicant No.1 & non-applicant was solemnized
on 03.02.2006 and through their wedlock applicant No.2 was
born. After some time the non-applicant started harassing
applicant No.1 in connection with insufficient dowry,
therefore, report was lodged by applicant no.1 in the police
station- Vishrampur and she left her matrimonial home
alongwith her child. She further pleaded that non-applicant is
working as daily wages teacher in Kendriya Vidyalaya,
Manipur and he receives Rs. 35,000/- salary per month. As
such the applicants herein claimed maintenance of Rs.
20,000/- per month.
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4. The non-applicant/husband filed reply and stated that
without any reason the applicant No.1 is residing separately.
The non-applicant has liability of his parents and unmarried
sister and he has not performed second marriage yet. He is
ready to maintain the applicants.
5. The learned Chief Judicial Magistrate, Surajpur (C.G.) vide
order dated 06.12.2013 in Miscellaneous Criminal Case No.
213/2012 partly allowed the application moved by the
applicants and awarded interim maintenance of Rs.3,000/-
to applicant No.1 & Rs. 2,000/- to applicant No.2, total Rs.
5,000/- which was payable by non-applicant to applicants
from date of order.
6. Order of C.J.M, Surajpur dated 06.12.2013 was challenged
by the applicants before the learned Sessions Court,
Surajpur by filing Criminal Revision No.27/2013 for
enhancement of the maintenance amount and vide order
dated 30.10.2014 the learned Sessions Court enhanced the
maintenance amount from Rs. 3,000/- to 10,000/- & Rs.
2,000/- to 5,000/- which was payable by the non-applicant to
applicant Nos.1 & 2 respectively.
7. The non-applicant (husband) filed CRMP No.1130 of 2014
against the order dated 30.10.2014 and on 17.04.2015
interim order was passed by this Court in favour of applicant
and amount of maintenance granted to applicant no.1/wife
i.e. Rs. 10,000/- was reduced to Rs. 7,000/- till next date of
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hearing & maintenance of Rs.5,000/- which was granted to
applicant No.2/son was not disturbed.
8. The CRMP No. 1130/2014 was finally decided on
09.04.2019 and the petition filed by the
non-applicant/husband was dismissed. Thereafter, the
applicants moved application under Section 125 (3) of CrPC
for recovery of arrears from 17.04.2015 to 09.04.2019 as
there was difference of Rs. 3,000/- in the maintenance
amount which was payable to applicant No.1/wife by virtue
of order of stay. The application moved by the present
applicants before the learned Family Court was rejected vide
order dated 04.02.2022 on the ground that in the final order
passed by the High Court in CRMP No. 1130 of 2014 dated
09.04.2019, there was no discussion regarding grant of
maintenance which was stayed vide order dated
17.04.2015 and thus no order can be passed to make
payment of difference amount and consequently, the
learned Family Court rejected the application moved by the
present applicants. Thereafter, the applicants filed CRMP
No. 784 of 2022 before this Court seeking clarification of the
order dated 09.04.2019, passed in CRMP No. 1130/2014
and the same was also dismissed on the ground that there
are no good grounds to entertain this petition, however,
liberty was granted to the petitioners(applicants herein) to
question the order dated 04.02.2022 passed by the learned
Family Court, Surajpur in accordance with law.
9. The counsel for applicants argues that the order dated
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04.02.2022 passed by the learned Family Court on the
ground that the person who approaches the Court and
gets any interim order, the outcome of the final order
will be binding upon him and if any interim order is
passed in his favour, it merges in the final order. He
also submits that if any order is passed in favour of the
litigant it would be risky and would rest at responsibility of
the person who obtains it and, if ultimately case is decided
against such person, he would be liable to pay interest on
the arrears of any amount due upon him which had been
stayed by the Court. The legal maxim actus curiae neminem
gravabit, which means that an act of the Court shall
prejudice no man, becomes applicable in such a case.
10. On the other hand, learned counsel for the non-applicant
Shri T.K. Jha opposes the arguments advanced on behalf of
the applicants and submits that there was stay order in
favour of the husband/non-applicant; later on, final order
was passed against the non-applicant but there was no
discussion about the difference amount. He further submits
that the order was passed in the CRMP No. 784 of 2022 on
13.05.2022 whereby the petition filed by the applicants was
dismissed and the same became final. He further submits
that though the liberty was given to the applicants to
question the order dated 04.02.2022 passed by the learned
Family Court in accordance with law but the applicants
instead of approaching the learned Family Court, have
directly approached this Court, therefore, the instant
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Criminal Revision filed by the applicants is liable to be
dismissed as not maintainable.
11. I have heard the arguments advanced by the learned
counsel for the parties and perused the records with utmost
circumspection. It would be apposite to go through the bare
provision of Sections 125(3) & 128 of Cr.P.C:-
125(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 month's [allowance for the
maintenance or the interim maintenance
and expences of proceeding, as the case
may be,] 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: Provided further that if such
person offers to maintain his wife on
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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 he is satisfied that there is just
ground for so doing. Explanation.- If a
husband has contracted marriage with
another woman or keeps a mistress, it
shall be considered to be just ground for
his wife' s refusal to live with him."
"128. Enforcement of order of
maintenance.- A copy of the order of
[maintenance or interim maintenance and
expences of proceedings, as the case may
be,] shall be given without payment to the
person in whose favour it is made, or to
his guardian, if any, or to the person
to [whom the allowance for the
maintenance or the allowance for the
interim maintenance and expenses of
proceedings, as the case may be,] is to be
paid; and such order may been forced by
any Magistrate in any place where the
person against whom it is made may be,
on such Magistrate being satisfied as to
the identity of the parties and the non-
payment of the [allowance, or as the case
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may be, expenses, due]."
12. It is quite vivid from the records that interim maintenance
amount of Rs. 3,000/- & Rs. 2,000/- was granted in favour of
the present applicants by the learned Family Court and in
revision it was enhanced to Rs. 10,000/- & Rs. 5,000/-
respectively. The order passed by the Sessions Court was
challenged by the non-applicant/husband before this Court
and interim order was passed in his favour where
maintenance amount granted to the applicant No.1/wife was
reduced to Rs. 7,000/- from Rs. 10,000/- during the pendency
of CRMP No.1130 of 2014. Ultimately, CRMP No. 1130 of
2014 filed by the non-applicant/husband was dismissed vide
order dated 09.04.2019 and the order passed by learned
Sessions Court has been affirmed by this Court. The dispute
arose when the applicants moved application under Section
125 (3) of CrPC before the Family Court for grant of arrears
i.e. Rs. 3,000/- per month which was due from 17.04.2015 to
09.04.2019 and the same was payable by the non-applicant/
husband to applicant No.1/wife. The learned Family Court
rejected the application filed by applicants under Section 125
(3) of CrPC on the ground that the issue of payment of
difference amount was not discussed by the Hon'ble High
Court in its order dated 09.04.2019, therefore, learned Family
Court showed its inability to pass any order in favour of the
present applicants.
13. The question involved in the present case is no longer res
integra. Some decisions of Hon'ble Supreme Court and High
Courts can be noted by way of illustration:
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In the matter of State of Gujarat And Others V.
Dilipbhai Shaligram Patil reported in (2006)8 SCC
72, in relevant paragraphs No. 5 & 6 it is held by the
Hon'ble Supreme Court that:
"5.It is well settled that an order of stay
granted pending disposal of a writ petition/suit
or other proceedings, comes to an end with
the disposal of the substantive proceedings
and that it is the duty of the Court in such a
case to put the parties in the same position,
they would have been but for the interim
orders of the Court. Any other view would
result in the act or order of the court
prejudicing the party for no fault of his and
would also mean rewarding the writ petitioner
in spite of his failure. Any such unjust
consequence cannot be countenanced by the
courts. [(See Kanoria Chemicals and
Industries Ltd. v. U.P. State Electricity Board
and Ors. 1997 (5) SCC 772)].
6.The position was also highlighted in Shree
Chamundi Mopeds Ltd. v. Church of South
India Trust Association CSI Cinod Secretariat,
Madras (1992 (3) SCC 1). It was inter alia
noted as follows:- "While considering the
effect of an interim order staying the operation
of the order under-challenge, a distinction has
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to be made between quashing of an order and
stay of operation of an order. Quashing of an
order results in the restoration of the position
as it stood on the date of the passing of the
order which has been quashed. The stay of
operation of an order does not, however, lead
to such a result. It only means that the order
which has been stayed would not be
operative from the date of the passing of the
stay order and it does not mean that the said
order has been wiped out from existence."
In the matter of Nava Bharat Ferro Alloys Limited V.
Transmission Corporation of Andhra Pradesh Limited
And Another, reported in (2011) 1 SCC 216, the Hon'ble
Supreme Court has held in paragraph Nos. 23, 37 & 38
that:-
"23.This Court then applied the principle of
restitution as enunciated by the Privy Council
in Rodger v. The Comptoir D'Escompte de
Paris 1871 (3) PC 465 and held that it will be
the endeavour of the Court to ensure that a
party who had suffered on account of a
decision that is finally reversed should be put
back in the same position as far as the same
is practicable, in which he would have been if
the decision of the Court adversely affecting
him had not been passed. This Court
observed: (Kerala SEB case, SCC p. 608,
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para 24) "24. ...In giving full and complete
relief in an action for restitution, the court has
not only power but also a duty to order for
mesne profits, damages, costs, interest etc. as
may deem expedient and fair conforming to
justice to be done in the facts of the case. But
in giving such relief, the court should not be
oblivious of any unmerited hardship to be
suffered by the party against whom action by
way of restitution is taken. In deciding
appropriate action by way of restitution, the
court should take a pragmatic view and frame
relief in such a manner as may be reasonable,
fair and practicable and does not bring about
unmerited hardship to either of the parties."
37.This Court said: "Kanoria Chemicals Case,
SCC p.780, para 11) "11. ...It is equally well
settled that an order of stay granted pending
disposal of a writ petition/suit or other
proceeding, comes to an end with the
dismissal of the substantive proceeding and
that it is the duty of the court in such a case to
put the parties in the same position they would
have been but for the interim orders of the
court. Any other view would result in the act or
order of the court prejudicing a party (Board in
this case) for no fault of its and would also
mean rewarding a writ petitioner in spite of his
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failure. We do not think that any such unjust
consequence can be countenanced by the
courts. As a matter of fact, the contention of
the consumers herein, extended logically
should mean that even the enhanced rates are
also not payable for the period covered by the
order of stay because the operation of the very
notification revising/enhancing the tariff rates
was stayed. Mercifully, no such argument was
urged by the appellants. It is
ununderstandable how the enhanced rates
can be said to be payable but not the late
payment surcharge thereon, when both the
enhancement and the late payment surcharge
are provided by the same notification - the
operation of which was stayed"
38.It is manifest from the above that both on
the question of restitution of the benefit drawn
by a party during legal proceedings that
eventually fail as also on the general principle
that a party who fails in the main proceedings
cannot benefit from the interim order issued
during the pendency of such proceedings, this
Court found against the consumers and
upheld the demand for payment of additional
charges recoverable on account of the delay
in the payment of the outstanding dues. Far
from lending any assistance to the appellant-
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company the decision squarely goes against it
and has been correctly appreciated and
applied by the High Court"
In the matter of State of Rajasthan And Another V.
J.K. Synthetics Limited And Anr., reported in (2011) 12
SCC 518, the Hon'ble Supreme Court in paragraph Nos. 21
& 22 has held that:-
"21.The same question was considered by this
Court, when examining the constitutional
validity of Rule 64-A in South Eastern
Coalfields. This Court held that Rule 64-A
providing for payment of interest at the rate of
24% per annum, was valid. In that case also, it
was contended before this Court that non-
payment of the increased amount of royalty
was protected by the interim orders of the High
Court and therefore, they should not be held
liable for payment of interest so long as the
money was withheld under the protective
umbrella of the interim orders. It was further
contended that merely because the writ
petition was finally dismissed, it does not follow
that the interim order becomes vitiated or
erroneous, as it may still be a perfectly justified
interim order. It was further argued that as they
had shown their bona fides by paying the
difference in royalty immediately after the
validity of the notification dated 17.2.1992 was
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upheld, they could not be made liable to pay
interest. All these contentions were rejected by
this Court on the ground that the principle of
restitution was a complete answer to the said
submissions.
22.This Court held : (South Eastern Coalfields
case, SCC p.663, para 26) "26. ...The principle
of restitution has been statutorily recognized in
Section 144 of the Code of Civil Procedure,
1908. Section 144 of the CPC speaks not only
of a decree being varied, reversed, set aside or
modified but also includes an order on par with
a decree. The scope of the provision is wide
enough so as to include therein almost all the
kinds of variation, reversal, setting aside or
modification of a decree or order. The interim
order passed by the Court merges into a final
decision. The validity of an interim order,
passed in favour of a party, stands reversed in
the event of final decision going against the
party successful at the interim stage. Unless
otherwise ordered by the Court, the successful
party at the end would be justified with all
expediency in demanding compensation and
being placed in the same situation in which it
would have been if the interim order would not
have been passed against it. The successful
party can demand (a) the delivery of benefit
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earned by the opposite party under the interim
order of the court, or (b) to make restitution for
what it has lost; and it is the duty of the court to
do so unless it feels that in the facts and on the
circumstances of the case, the restitution
would far from meeting the ends of justice,
would rather defeat the same. Undoing the
effect of an interim order by resorting to
principles of restitution is an obligation of the
party, who has gained by the interim order of
the Court, so as to wipe out the effect of the
interim order passed which, in view of the
reasoning adopted by the court at the stage of
final decision, the court earlier would not or
ought not to have passed. There is nothing,
wrong in an effort being made to restore the
parties to the same position in which they
would have been if the interim order would not
have existed."
In the matter of Mohammad Usman Alias Bhai Lal V.
State of U.P. And Others, reported in (2021) SCC online AII.640;
it is held in paragraph Nos.16 & 17, 26 & 27, 28 to 34 as under:-
"16. The provisions contained under Section
125(3) of the Code and the first proviso thereto
again came up for consideration in Poongodi
And Another v. Thangavel, and it was held that
the first proviso to Section 125(3) does not
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create any bar or fetter on claiming arrears of
maintenance and it neither extinguishes nor
limits entitlement to arrears of maintenance. It
was stated thus:-
'4. A reading of the order dated 21.4.2004
passed by the High Court would go to show
that the proviso to Section 125(3) CrPC has
been construed by the High Court to be a fetter
on the entitlement of the claimants to receive
arrears of maintenance beyond a period of one
year preceding the date of filing of the
application under Section 125(3) CrPC. Having
considered the said provision of the Code we
do not find that the same creates a bar or in
any way affects the entitlement of a claimant to
arrears of maintenance. What the proviso
contemplates is that the procedure for recovery
of maintenance under Section 125(3) CrPC,
namely, by construing the same to be a levy of
a fine and the detention of the defaulter in
custody would not be available to a claimant
who had slept over his/her rights and has not
approached the Court within a period of one
year commencing from the date on which the
entitlement to receive maintenance has
accrued. However, in such a situation the
ordinary remedy to recover the amount of
maintenance, namely, a civil action would still
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be available.'
17. Referring to the earlier decisions in the
case of Kuldip Kaur (supra), Shahada Khatoon
(supra) and Shantha Alias Ushadevi (supra), it
was observed as follows:-
'5. The decision of this Court in Kuldip Kaur v.
Surinder Singh, (1989) 1 SCC 405, may be
usefully recalled wherein this Court has held
the provision of sentencing under Section 125
(3) to be a "mode of enforcement" as
distinguished from the "mode of satisfaction" of
the liability which can only be by means of
actual payment. ...
6. In another decision of this Court in Shantha
alias Ushadevi and Another v. B.G.
Shivananjappa, (2005) 4 SCC 468 it has been
held that the liability to pay maintenance under
Section 125 CrPC is in the nature of a
continuing liability. The nature of the right to
receive maintenance and the concomitant
liability to pay was also noticed in a decision of
this Court in Shahada Khatoon & Ors. v. Amjad
Ali, (1999) 5 SCC 672. Though in a slightly
different context, the remedy to approach the
court by means of successive applications
under Section 125(3) CrPC highlighting the
subsequent defaults in payment of
maintenance was acknowledged by this Court
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in Shahada Khatoon.
7. The ratio of the decisions in the aforesaid
cases squarely apply to the present case. The
application dated 05.02.2002 filed by the
appellants under Section 125(3) was in
continuation of the earlier applications and for
subsequent periods of default on the part of
the Respondent. The first proviso to Section
125(3), therefore did not extinguish or limit the entitlement of the appellants to the maintenance granted by the learned trial court, as has been held by the High Court.
26. The first proviso to Section 125(3) of the Code cannot be construed to be a fetter on the entitlement of the claimant to receive arrears of maintenance beyond a period of one year preceding the date of filing of the application under Section 125(3) nor can it be held to extinguish or limit the entitlement to claim maintenance granted by the court under Section 125.
27. Section 128 of the Code provides for enforcement of the order of maintenance against the person against whom the order of maintenance has been made. The enforcement of the order of maintenance under Section 128 can only be made upon the liability being satisfied by making actual payment of Page 19 of 29 the amount of maintenance which is due. The entitlement to claim enforcement of the order of maintenance under Section 128 by seeking discharge of the liability as per terms of the order of maintenance granted under Section 125, therefore cannot be held to be extinguished in terms of the one year limitation prescribed under the first proviso to Section125(3).
28. Even otherwise, a plain reading of the first proviso to Section 125(3) would show that the limitation of making an application within a period of one year from the date on which it becomes due would only be applicable in case of issuance of a warrant for recovery of any amount due under the section, and it does not contain any restriction on a claim to be made for enforcing the order of maintenance for which the provision is made under Section 128 of CrPC.
29. While considering the scope of the proviso to sub-section (3) of Section 125 of the Code and as to whether the limitation of one year under the proviso can be extended to enforcement of the order of maintenance under Section 128 of the Code, it would be relevant to bear in mind that the language of a proviso, even if in general, is normally to be construed Page 20 of 29 in relation to the subject matter covered by the section to which the proviso is appended.
30. Considering the scope of a proviso as an internal aid to interpretation of statutes in Dwarka Prasad v. Dwarka Das Saraf, (1976) SCC 128, it was held that a proviso must be limited to the subject matter of the enacting clause and must be read and considered in relation to the principal matter to which it is a proviso. Referring to the earlier decisions in Commissioner of Income-tax v. Indo- Mercantile Bank Ltd., AIR 1959 SC 713, M/s. Ram Narain Sons Ltd. v. Asst. Commissioner of Sales Tax, AIR 1955 SC 765 Thompson v. Dibdin, Rex v. Dibdin (1912) AC 533 and Tahsildar Singh v. State of U.P., AIR 1959 SC 1012, it was stated as follows:-
"18. ...The law is trite. A proviso must be limited to the subject-matter of the enacting clause. It is a settled rule of construction that a proviso must prima facie be read and considered in relation to the principal matter to which it is a proviso. It is not a separate or independent enactment. ..."
31. The following observations in the case of Thompson v. Dibdin (supra) were referred to and the same are being extracted below:-
"18. ... Words are dependent on the principal Page 21 of 29 enacting words, to which they are tacked as a proviso. They cannot be read as divorced from their context. ..."
32. Taking a similar view it was held in Mackinnon Mackenzie & Co. Ltd vs Audrey D'Costa & Anr, (1987) 2 SCC 469 that the proviso does not travel beyond the provision to which it is a proviso and its ambit cannot be stretched beyond the main provision.
33. In Ali M.K. And Others v. State of Kerala and Others, it was reiterated that the proviso qualifies or carves out an exception to the main provision, and referring to earlier judgments in Mullins v. Treasurer of Surrey, (1880)5 QBD 170 Shah Bhojraj Kuverji Oil Mills and Ginning Factory v. Subhash Chandra Yograj Sinha, AIR 1961 SC 1596, Calcutta Tramways Co. Ltd. v. Corporation of Calcutta, AIR 1965 SC 1728, West Derby Union v. Metropolitan Life Assurance Co., 1897 AC 647, A.N. Sehgal v. Raje Ram Sheoran, AIR 1991 SC 1406, Tribhovandas Haribhai Tamboli v. Gujarat Revenue Tribunal, AIR 1991 SC 1538, Kerala State Housing Board v. Ramapriya Hotels (P) Ltd.,(1994) 5 SCC 672, R. v. Taunton, St James (1829) 9 B&C 831 and Lord Esher in Barker, Re, (1890) 25 QBD 285, the law on the point was summarized as follows:-
Page 22 of 29
"10. The normal function of a proviso is to except something out of the enactment or to qualify something enacted therein which but for the proviso would be within the purview of the enactment. As was stated in Mullins v. Treasurer of Surrey [(1880) 5 QBD 170], (referred to in Shah Bhojraj Kuverji Oil Mills and Ginning Factory v. Subhash Chandra Yograj Sinha (AIR 1961 SC 1596) and Calcutta Tramways Co. Ltd. v. Corporation of Calcutta (AIR 1965 SC 1728), when one finds a proviso to a section the natural presumption is that, but for the proviso, the enacting part of the section would have included the subject matter of the proviso. The proper function of a proviso is to except and to deal with a case which would otherwise fall within the general language of the main enactment and its effect is confined to that case. It is a qualification of the preceding enactment which is expressed in terms too general to be quite accurate. As a general rule, a proviso is added to an enactment to qualify or create an exception to what is in the enactment and ordinarily, a proviso is not interpreted as stating a general rule. "If the language of the enacting part of the statute does not contain the provisions which are said to occur in it you cannot derive these Page 23 of 29 provisions by implication from a proviso. ..."
said Lord Watson in West Derby Union v. Metropolitan Life Assurance Co. (1897 AC
647). Normally, a proviso does not travel beyond the provision to which it is a proviso. It carves out an exception to the main provision to which it has been enacted as a proviso and to no other. [(See A.N. Sehgal and Ors. v. Raje Ram Sheoran (AIR 1991 SC 1406), Tribhovandas Haribhai Tamboli v. Gujarat Revenue Tribunal (AIR 1991 SC 1538) and Kerala State Housing Board and Ors. v. Ramapriya Hotels (P)Ltd. (1994) 5 SCC 672].
"This word (proviso) hath divers operations. Sometime it worketh a qualification or limitation; sometime a condition; and sometime a covenant." (Coke upon Littleton 18th Edn., p.
146.) "If in a deed an earlier clause is followed by a later clause which destroys altogether the obligation created by the earlier clause, the later clause is to be rejected as repugnant, and the earlier clause prevails....But if the later clause does not destroy but only qualifies the earlier, then the two are to be read together and effect is to be given to the intention of the parties as disclosed by the deed as a whole"
[Per Lord Wrenbury in Forbes v. Git (1922) 1 Page 24 of 29 AC 256].
11. A statutory proviso "is something engrafted on a preceding enactment" [R. v. Taunton, St James, (1829) 9 B&C 831].
"The ordinary and proper function of a proviso coming after a general enactment is to limit that general enactment in certain instances."
[Per Lord Esher in Barker, Re (1890) 25 QBD 285].
12. A proviso to a section cannot be used to import into the enacting part something which is not there, but where the enacting part is susceptible to several possible meanings it may be controlled by the proviso [See Jennings v. Kelly, (1940) AC 206]."
34. In "The Construction and Interpretation of the Laws" by Henry Campbell Black, it has been stated as a rule of construction that a proviso will be confined to that which directly precedes it, or to the section to which it is appended. The legal proposition has been stated as follows:-
"The natural and appropriate office of a proviso to a statute, or to a section thereof, is to restrain or qualify the provisions immediately preceding it. Hence it is a rule of construction that it will be confined to that which directly precedes it, or to the section to which it is Page 25 of 29 appended, unless it clearly appears that the legislature intended it to have a wider scope."]"
The identical issue as involved in this case has been dealt by the Hon'ble Supreme Court in the case of State of U.P. through Secretary and Ors. V. Prem Chopra, passed in CIVIL APPEAL No. 2417 OF 2022 (Arising out of S.L.P. (CIVIL) No.15330 of 2019) and relevant Paragraphs No.-20, 21 & 24 of the said judgment are reproduced herein below:-
"20. dealing with the issue by considering the order passed in the case of Rajasthan Housing Board and Others V. Krishna Kumari, (2005) 13 SCC 151 this Court observed that Order 39 of Civil Procedure Code, 1908 provides for grant of temporary injuction at the risk and responsibility of the person who obtains it and, if ultimately case is decided against such person, he would be liable to pay interest on the arrears of any amount due which had been stayed by the injunction order. The legal maxim actus curiae neminem gravabit, which means that an act of the Court shall prejudice no man, becomes applicable in such a case.
21.In South Eastern Coalfields Ltd Vs. State of MP & Ors. (2003) 8 SCC 648: the writ petitioner therein had argued that interest accrued due to nonpayment of enhanced Page 26 of 29 amount of royalty was protected by a judicial order of an interim nature and, therefore, merely because the writ was finally dismissed, the writ petitioner should not be held liable for payment of interest so long as money was withheld under the protective umbrella of the injunction order. This submission was rejected by this Court by holding as under:- "The principle of restitution has been statutorily recognized in Section 144 of the Code of Civil Procedure, 1908. Section 144 CPC speaks not only of a decree being varied, reversed, set aside or modified but also includes an order on a par with a decree. The scope of the provision is wide enough so as to include therein almost all the kinds of variation, reversal, setting aside or modification of a decree or order. The interim order passed by the court merges into a final decision. The validity of an interim order, passed in favour of a party, stands reversed in the event of a final decision going against the party successful at the interim stage. Unless otherwise ordered by the court, the successful party at the end would be justified with all expediency in demanding compensation and being placed in the same situation in which it would have been if the Page 27 of 29 interim order would not have been passed against it. The successful party can demand
(a) the delivery of benefit earned by the opposite party under the interim order of the court, or (b) to make restitution for what it has lost; and it is the duty of the court to do so unless it feels that in the facts and on the circumstances of the case, the restitution far from meeting the ends of justice, would rather defeat the same. Undoing the effect of an interim order by resorting to principles of restitution is an obligation of the party, who has gained by the interim order of the court, so as to wipe out the effect of the interim order passed which, in view of the reasoning adopted by the court at the stage of final decision, the court earlier would not or ought not to have passed. There is nothing wrong in an effort being made to restore the parties to the same position in which they would have been if the interim order would not have existed.
24. From the above discussion, it is clear that imposition of a stay on the operation of an order means that the order which has been stayed would not be operative from the date of passing of the stay order. However, it does not mean that the stayed order is wiped out Page 28 of 29 from the existence, unless it is quashed. Once the proceedings, wherein a stay was granted, are dismissed, any interim order granted earlier merges with the final order. In other words, the interim order comes to an end with the dismissal of the proceedings. In such a situation, it is the duty of the Court to put the parties in the same position they would have been but for the interim order of the court, unless the order granting interim stay or final order dismissing the proceedings specifies otherwise. On the dismissal of the proceedings or vacation of the interim order, the beneficiary of the interim order shall have to pay interest on the amount withheld or not paid by virtue of the interim order."
14.Thus, after going through the judgment passed by Hon'ble Supreme Court & High Court of Allahabad, it is clear that the learned Family Court has committed illegality by not allowing the application of the applicants under Section 125 (3) of CrPC for recovery of the difference amount from the period of 17.04.2015 to 09.04.2019 in the light of judgments passed by the Hon'ble Supreme Court one basic principle that should be borne in mind is that interlocutory orders are made in aid of final orders and not vice versa. No interlocutory order will survive after original proceeding comes to an end. Consequently, the Criminal Revision filed by the applicants is allowed and order passed by the learned Family Court dated Page 29 of 29 04.02.2022 is set-aside and the learned Family Court is directed to proceed with the application moved by the applicants u/s. 125 (3) of CrPC in accordance with law settled by Hon'ble Supreme Court and decide the same within a period of two months from date of receipt of this order.
15.Parties are directed to appear before the learned Family Court on 19.09.2022 and it is expected from the non-applicant that he will co-operate in the smooth prosecution of the case.
Sd/-
(Rakesh Mohan Pandey) Judge Nadim Page 1 of 1 NAFR HIGH COURT OF CHHATTISGARH, BILASPUR CRMP No. 1651 of 2022
1. Smt. Kavita Singh, W/o Sri Basant Kumar Singh, Aged About 41 Years R/o Qr. No. 4-D, Street No. 19, Khursipara, Bhilai, C.G., Presently Residing Shantinagar, Gali 5, Sai Kripa Bhavan, Vishrampur, Police Station Vishrampur, Tahsil and District- Surajpur, Chhattisgarh.
2. Shreyansh Kumar Singh @ Pranjal S/o Shri Basant Kumar Singh Aged About 13 Years Through Applicant 1 Mother Smt. Kavita Singh, R/o Qr. No. 4-D, Street No. 19, Khursipara, Bhilai, C.G., Presently Residing Shantinagar, Gali 5, Sai Kripa Bhavan, Vishrampur, Police Station Vishrampur, Tahsil and District- Surajpur, Chhattisgarh. ---- Petitioners Versus Basant Kumar Singh S/o Shri Virendra Pratap Singh Aged About 43 Years R/o Qr. No. 4-D, Street No.19, Khursipara, Bhilai C.G., Presently In Service at Pgt English Kendriya Vidyalaya, Durg, Chhattisgarh. ---- Respondent Hon'ble Shri Justice Rakesh Mohan Pandey Order on Board 30.09.2022
1) This CrMP is a reference registered on the basis of Paper Under Disposal (PUD) dated 20/09/2022 sent by the learned Family Court, Surajpur, District- Surajpur (CG) to the effect that order passed by this Court in CRR No. 529 of 2022 mentioning petitioners' case before the Court below as Civil Suit No. 437/2022 on 18.08.2022 in the matter of 'Smt. Kavita Singh and Ors Vs. Basant Kumar Singh' informing this Court that due to inadvertent typographical mistake the case number has been mentioned as Civil Suit No. 437/2022 in place of Miscellaneous Criminal Case No. 11/2021.
2) Upon due consideration, it is directed that the case number mentioned in order dated 18.08.2022 passed in CRR No. 529 of 2022 be read as Miscellaneous Criminal Case No. 11/2021 in place of Civil Suit No. 437/2022.
3) This order shall be treated as part of the CRR No. 529 of 2022.
4) Consequently, the office reference stands disposed of.
Sd/-
(Rakesh Mohan Pandey) Judge Nadim