Madhya Pradesh High Court
Akanksha Arora vs Tanay Maben on 21 September, 2023
Author: Achal Kumar Paliwal
Bench: Achal Kumar Paliwal
M.Cr.R. No.18481/2022
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPU R
BEFORE
HON'BLE SHRI JUSTICE ACHAL KUMAR PALIWAL
MISC. CRIMINAL CASE No. 18481 of 2022
BETWEEN:-
AKANKSHA ARORA W/O SHRI TANAY
MABEN, AGED ABOUT 32 YEARS,
OCCUPATION-UNEMPLOYED, D/O
SUSHIL ARORA, R/O HOUSE NO.206,
ADARSH NAGAR, NARMADA ROAD,
JABALPUR (M.P.)
.....APPLICANT
(BY SHRI G. S. WADHWA - ADVOCATE)
AND
TANAY MABEN, S/O SHRI AKHILESH
MABEN, AGED ABOUT 32 YEARS,
OCCUPATION-GOVERNMENT JOB &
BUSINESS, R/O PLOT A, JDA SCHEME,
5/14, VIJAY NAGAR, JABALPUR (M.P.)
.....RESPONDENT
(BY SHRI ABHIJEET AWASTHI - ADVOCATE)
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Reserved on : 11.9.2023
Pronounced on : 21.09.2023
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This application coming on for admission this day, the court
passed the following:
ORDER
The applicant has filed this petition under Section 482 of Cr.P.C., seeking enhancement of interim maintenance, against order dated 8.3.2022 passed by Principal Judge, Family Court, Jabalpur in MJCR M.Cr.R. No.18481/2022 2 No.287/2021 whereby learned family court has fixed Rs. 30,000/- per month as interim maintenance.
2. Respondent has filed I. A. 21610/2023 seeking dismissal of present petition on the ground that it is not maintainable.
3. I have gone through the I. A. 21610/2023 & reply thereof & documents filed along therewith. Perusal of the same reveals that dispute between the parties primarily revolves around following two points:-
(a) Whether order of interim maintenance passed by the Family Court under Section 125 of CrPC is revisable u/s 397/401 of CrPC, i.e., whether revision u/s 397/401 of CrPC can be filed against such order of interim maintenance.
(b) Whether, in spite of availability of remedy u/s 397/401 of CrPC, recourse to remedy u/s 482 of CrPC can be taken i.e. whether, petition under Section 482 of CrPC is maintainable against an order which is revisable u/s 397/401 0f Cr.P.C.
4. I have heard learned counsel for the parties and perused the record of the case.
Whether order passed by the Family Court under Section 125 of Cr.P.C. for interim maintenance is revisable:-
5. In this connection, first of all, I would like to refer Section 19 of Chapter V of Family Court's Act, 1984, which reads as under:-
Chapter V- Appeals and Revisions Section 19- (4) The High Court may, of its own motion or otherwise, call for an examine the record of any proceeding in which the Family Court situate within its jurisdiction passed on order under Chapter IX of the Cr.P.C., 1973 (2 of 1974) for the purpose of M.Cr.R. No.18481/2022 3 satisfying itself as to the correctness, legality or propriety of the order, not being an interlocutory order, and as to the regularity of such proceeding.
(5) Except as aforesaid, no appeal or revision shall lie to any Court from any judgment, order or decree of a Family Court.
6. Perusal of Chapter IX of Cr.P.C. 1973 reveals that Section 125 is part of above chapter.
7. Thus, if provisions contained in Chapter IX of Cr.P.C. and Chapter V of Family Court's Act is read together, then, it is evident that when a Family Court passes an order of interim maintenance under aforesaid provisions, then, as per Section 19(4) of Family Courts Act such order is clearly revisable i.e. revision against such order is maintainable.
8. In this connection, I would also like to refer Full Bench judgment of this High Court in Rajesh Shukla vs. Meena Shukla, 2005(2) MPLJ 483, wherein in para 1,5,6 and 17 it has held as under:-
This revision is sent on reference to this Bench on the following question of law:-
"Whether against the order passed by the Family Court in an application under Section 125 of the Code while exercising jurisdiction under Chapter IX of the Code, revision under Sub-section (4) of Section 19 of the Act should be registered as Civil Revision or Criminal Revision or Revision Petition (Family) ?"
5. From perusal of the scheme of the Act, it is clear that Family Court exercises two types of powers. Cases except the case under Chapter IX of the Code are decided by the Family Court as a District Court. The Family Court while dealing with the proceedings under M.Cr.R. No.18481/2022 4 Chapter IX of the Code Family Court exercises the jurisdiction of a Judicial Magistrate First Class. In the circumstances, when orders have been passed in exercise of the provisions of the Code, revision before this Court under Section 19(4) of the Act can not be termed as Civil Revision. Proceedings are arising out of the Code, thus essentially final orders so passed will be revisable under Section 19(4) of the Act as Criminal Revision.
6. It may be mentioned that the Family Court exercises powers of a Judicial Magistrate while dealing with the application for maintenance. If such applications are decided by the Judicial Magistrate, where there is no Family Court, as per High Court Rules, revision against the said order is registered as Criminal Revision.
17. Therefore, we answer the reference that since powers of Judicial Magistrate First Class have been exercised by the Family Court for deciding application under Section 125 of the Code, revision filed against the said order should be registered as Criminal Revision. Therefore, with respect to the judgment in the case of Aruna Choudhary (supra) we hold that correct law has not been laid down in this judgment. Revisions arising out of applications under Section 125 of the Code shall be registered as Criminal Revisions as they flow from the proceedings under the Code. However, it is for the High Court to frame rules for hearing of appeals and revisions arising out of the orders passed by the Family Court and its registration. The High Court may consider this matter on administrative side.
9. In Akansha Shrivastava vs. Virendra Shrivastava & Anr. 2010 (3) MPLJ 151 ( DB), also this High Court in para 6 and 7 has held as under:-
6. ........We are of the considered view that the order of interim maintenance cannot be treated as interlocutory order and hence, no bar of section 397(2) M.Cr.R. No.18481/2022 5 Cr.P.C. is applicable. In the present case, petitioner-
wife is substantially affected by the order which has been put to challenged because, right to get maintenance or survive with dignity which is as good as fundamental right granted by the Constitution to the petitioner has been substantially affected and prejudiced. Any order which affects right of a person drastically or affects it substantially or prejudices it substantially cannot be treated as an "interlocutory order". Order of interim maintenance which affects right of parties substantially, cannot be treated as 'interlocutory'.
7. Considering the above legal position, we are of the considered view that the order of interim maintenance affects right of a person drastically and substantially. Hence, it cannot be treated as "interlocutory order" and criminal revision can be preferred under Section 19(4) of the Family Courts Act.........."
10. Therefore, in view of above legal provisions and law laid down by Full Bench and Division Bench of this High Court, it is clearly established that an order of interim maintenance passed a Family Court under Section 125 of Cr.P.C. is revisable and revision against such order is maintainable under Section 397/401 of Cr.P.C. Therefore, the law laid down by Rajasthan High Court in Vishal Kochar and others vs. Smt. Pulkit Sahni, 2022 2 Cr.L.R. 923 and V.C. Shukla vs. State reported in AIR 1980 (SC) 962, Madhu Limaye vs. State of Maharashtra, reported in (1977) 4 SCC 551 do not apply in the facts of the instant case and does not help petitioner in any way.
Whether recourse to remedy under section 482 of Cr.P.C. can be taken, even if remedy under section 397/401 of CrPC is available:-
M.Cr.R. No.18481/2022 611. It is correct that Hon'ble Apex Court in Dhariwal Tobacco Products Limited vs. State of Maharashtra and another, (2009) 2 SCC 370 ( Two Judges Bench) has laid down as under:-
"6. Only because a revision petition is maintainable, the same by itself, in our considered opinion, would not constitute a bar for entertaining an application under Section 482 of the Code."
12. In this connection, I would like to refer Gian Singh vs. State of Punjab and another, (2012) 10 SCC 330 (Three Judge Bench), in which Hon'ble Apex Court has held as under:-
" 53. Section 482 of the Code, as its very language suggests, saves the inherent power of the High Court which it has by virtue of it being a superior court to prevent abuse of the process of any court or otherwise to secure the ends of justice. It begins with the words, 'nothing in this Code' which means that the provision is an overriding provision. These words leave no manner of doubt that none of the provisions of the Code limits or restricts the inherent power. The guideline for exercise of such power is provided in Section 482 itself i.e., to prevent abuse of the process of any court or otherwise to secure the ends of justice. As has been repeatedly stated that Section 482 confers no new powers on High Court; it merely safeguards existing inherent powers possessed by High Court necessary to prevent abuse of the process of any Court or to secure the ends of justice. It is equally well settled that the power is not to be resorted to if there is specific provision in the Code for the redress of the grievance of an aggrieved party. It should be exercised very sparingly and it should not be exercised as against the express bar of law engrafted in any other provision of the Code."
13. Hon'ble Apex Court in Mohit @ Sonu vs. State of UP, AIR 2013 SC 2248 has held as under:-
"28.So far as the inherent power of the High Court as contained in Section 482 CrPC is concerned, the law in this regard is set at rest by this Court in a catena of decisions. However, we would like to reiterate that when an order, not interlocutory in nature, can be assailed in the High Court in M.Cr.R. No.18481/2022 7 revisional jurisdiction, then there should be a bar in invoking the inherent jurisdiction of the High Court. In other words, inherent power of the Court can be exercised when there is no remedy provided in the Code of Criminal Procedure for redressal of the grievance. It is well settled that the inherent power of the Court can ordinarily be exercised when there is no express provision in the Code under which order impugned can be challenged."
" 30.This Court in Padam Sen v. State of U.P.,AIR 1961 SC 218, regarding inherent power of the Court under Section 151 CPC observed:
"8....The inherent powers of the court are in addition to the powers specifically conferred on the court by the Code. They are complementary to those powers and therefore it must be held that the Court is free to exercise them for the purposes mentioned in Section 151 of the Code when the exercise of those powers is not in any way in conflict with what has been expressly provided in the Code or against the intentions of the legislature. It is also well recognized that the inherent power is not to be exercised in a manner which will be contrary to or different from the procedure expressly provided in the Code."
31. In a Constitution Bench decision rendered in Manohar Lal Chopra v. Seth Hiralal, AIR 1962 SC 527, this Court held that:
"43.... The inherent jurisdiction of the court to make orders ex debito justitiae is undoubtedly affirmed by Section 151 of the Code, but [inherent] jurisdiction cannot be exercised so as to nullify the provisions of the Code of Civil Procedure. Where the Code of Civil Procedure deals expressly with a particular matter, the provision should normally be regarded as exhaustive."
" 32.The intention of the legislature enacting the Code of Criminal Procedure and the Code of Civil Procedure vis-à- vis the law laid down by this Court it can safely be concluded that when there is a specific remedy provided by way of appeal or revision the inherent power under Section 482 CrPC or Section 151 CPC cannot and should not be resorted to."
M.Cr.R. No.18481/2022 814. Therefore, in view of above, in this court's considered opinion, the petitioner's petition under Section 482 of Cr.P.C. is not maintainable as petitioner has specific remedy available under Section 397/401 of Cr.P.C. with respect to impugned order. Therefore, in view of law laid down in Gian Singh vs. State of Punjab and another, (2012) 10 SCC 330 (Three Judge Bench) & Mohit @ Sonu (supra), Dhariwal Tobacco Products Limited (supra), a two judge Bench decision, does not help petitioner in any way.
15. In view of discussion in the foregoing paras and established legal position, I am of the considered opinion that as the petitioner has filed present petition under Section 482 of Cr.P.C. challenging the impugned order passed under Section 125 of Cr.P.C. for grant of interim maintenance and as it is revisable/revision is maintainable against the said order, therefore, petition under Section 482 of Cr.P.C. challenging such an order is clearly barred & is not maintainable.
16. Perusal of I.A. No.21610/2023 & its reply reveal that there are no other substantive points/aspects which are necessary/essential to decide the real controversy pertaining to present IA between the parties.
17. Hence, I.A. No.21610/2023 filed by the respondent is allowed.
18. Resultantly, the petition filed by the petitioner under section 482 of Cr.P.C. is dismissed as being not maintainable.
(ACHAL KUMAR PALIWAL) JUDGE irfan Digitally signed by MOHD IRFAN SIDDIQUI Date: 2023.09.22 14:20:03 +05'30'