Allahabad High Court
Ganga Sharan Varshney vs Shakuntala Devi And Anr. on 11 August, 1989
Equivalent citations: 1990CRILJ128, I(1990)DMC71
JUDGMENT S.R. Bhargava, J.
1. This revision under Section 397 Cr.P.C. involves a short legal point and has been finally heard at admission stage with agreement of the parties.
2. Revisionist Ganga Saran Varshney is resident of Hathras, Distt. Aligarh. Opp. Party No. 1 Smt. Shakuntala Devi is resident of District Etah. She filed application for maintenance under Section 125 Cr.P.C. against revisionist in Etah Court, claiming herself to be stepmother of the revisionist. On behalf of the revisionist preliminary objection to jurisdiction of Etah court was raised before the Magistrate concerned. Learned Magistrate placed reliance on Section 126(1) Cr.P.C. and found that the mother can institute proceedings under Section 135 Cr.P.C. only at the place where the son resides. Opp. party Smt. Shakuntala Devi challenged the decision of the Magistrate in revision before the Sessions Judge, Etah, who held that the mother can institute proceedings under Section 125 Cr.P.C. at the place of her residence also and so Etah court has jurisdiction to hear the petition under Section 125 Cr.P.C. Sessions Judge allowed the revision and remanded the case to Magistrate for disposal on merits.
3. Being aggrieved the revisionist has come to this court.
4. Before proceeding further it may be mentioned that one of the contentions raised on behalf of the revisionist was that a step-mother cannot claim maintenance under Section 125 Cr.P.C. and reliance was placed on the case of Sarju Prasad v. Smt. Damyanti, 1984 Allahabad Criminal Rulings 219. But this contention is alien to the paint arising in the revision. In touches the merit of the application brought by the stepmother and is left to be decided by the Magistrate concerned at the time of decision on merits, if occasion arises.
5. Question arising in this case has attained importance because of lacuna in Section 126(1) Cr.P.C. Section 125 Cr.P.C. entitles not only the wife or legitimate or illegitimate children to claim maintenance but also father or mother unable to maintain himself or herself. Only the new Code has enabled father or mother to claim maintenance. Section 126(1) Cr.P.C. runs as under :--
"(1) Proceedings under Section 125 may be taken against any person in any district--
(a) where he is, or
(b) where he or his wife resides, or
(c) where he last resided with his wife, or as the case may be, with the mother of the illegitimate child".
6. It is obvious that Clauses (b) and (c) are confined to wife or the mother of the illegitimate child. Although Section 125 enables father or mother to claim maintenance yet in Clauses (b) and (c) of Section 126(1) father or mother is ommitted. Taking advantage of this silence it was vehemently argued on behalf of the revisionist that father or mother can institute proceedings under Section 125 Cr.P.C. only where the son is.
7. This contention is, however, repugnant to the spirit or the purpose of Section 125 which in spirit and purpose is analogous to Section 488 of the old Code. For ascertaining the purpose and spirit of Section 125, the case of Bhagwan Dutt v. Smt. Kamla Devi, (1975) 2 SCR 483 relied upon in the case of Smt. Savitri v. Govind Singh Rawat, AIR 1986 SC 984 can be cited with advantage :--
"These provisions are intended to fulfil a special purpose. Their objection is to compel a man to perform the moral obligation which -he owes to society in respect of his wife and children. By providing a simple, speedy but limited relief, they seek to ensure that the neglected wife and children are not left beggared and destituted on the scrap-heep of society and thereby driven to a life of vagrancy, immorality and crime for their subsistence. Thus Section 488 is not intended to provide for a full and final determination of the status and personal rights of the parties. The jurisdiction conferred by the section on the Magistrate is more in the nature of a preventive rather than a remedial jurisdiction it is certainly not punitive".
8. Generally speaking proceedings whether civil, quasi-civil or quasi-criminal can be instituted where cause of action arises. When the social purpose of Section 125 Cr.P.C. is to prevent vagrancy and destitution the cause of action for proceedings under Section 125 Cr.P.C. arises at the place where the person claiming maintenance is and is apt to face vagrancy and destitution. It is, no doubt true that proceedings can be instituted at the place where the defendant resides because that would be the place where ultimately the order of maintenance, if passed, would be enforced. Where the Code is silent on the point whether the father or the mother can institute proceedings at the place where he is, the general principle should apply.
9. Case of Most. Jagir Kaur v. Jaswant Singh, AIR 1953 SC 1521 was a case of maintenance between wife and husband. But even in this case with respect to the proceedings under Section 488 of the old Code it was observed :--
"Proceedings under this section are in the nature of civil proceedings, the remedy is a summary one and the person seeking that remedy, as we have pointed out, is ordinarily a helpless person. So the words, should be liberally construed without doing any violence to the language".
Section 488 of the old Criminal Procedure Code enabled only the wife, children or illegitimate children to claim maintenance against the husband or father of the children. Section 488(8) provided :--
"Proceedings under this section may be taken against any person in any district where he resides or is, or where he last resided with his wife, or as the case may be, the mother of the illegitimate child".
10. Thus it is obvious that the old Code did not specifically provide that the helpless person may claim maintenance at the place where she or he is. It only specified that the person from whom maintenance is claimed 'resides', 'is' and where he last resided with his wife. In the new Code the Parliament clearly intended that, the helpless person should be allowed to institute proceedings where he or she resides and, therefore, in Clause (b) of Section 126(1) the Parliament introduced 'where he or his wife resides'. But in this clause the Parliament ommitted mother or father. When the Parliament intended to give facility to helpless person to claim maintenance at the place where he or she resides, ommission of mother or father in the said clause is accidental or inadvertant. The intention of the ' Parliament is clear that the helpless person should be given facility of claiming maintenance at the place where be or she resides.
11. Facts of the case of Most. Jagir Kaur v. Jaswant Singh (supra), Gulam Hussain v. Most. Hakam Bibi, AIR 1926 Lahore 663 and Ram Babu v. Ganga Devi, 1969 AWR 16 are altogether distinguishable. They involve claim of maintenance by the wife from the husband and interpretation of Section 488(8) of the old Code. They do not render help in answering the question arising in this case.
12. In the instant case no violence to the language of Section 126 is intended. Only this much need be observed that there is lacuna in the section and that has to be filled up according to intention of the Parliament.
13. In the case of Ananth Gopal Pat v. Gopal Narayan Pai, 1985 Criminal Law Journal 182, it was held that a father seeking maintenance can file application at the place where' he resides. I find myself in agreement with the reasons given in the cases. A statute has to be construed in a manner to carry out the intention of the legislature and even a modification of contradiction of the language of the legislature is permissible in order to square with the intention. If the destitute or vagrant mother is compelled in institute proceedings only at the place where the one resides, she may not at all be in a position to persue her case. On the other hand the son having pecuniary resources can certainly contest the case against her at the place where the mother resides. The intention of the legislature behind Section 125 Cr.P.C. is to provide against vagrancy and destitution.
14. Keeping in view the intention of the Parliament behind, Clause (b) of Section 126(1) of the new Code should be liberally construed and should mean to enable the claimant in general whether wife, or child, or illegimate child or mother or father to claim maintenance at the place where she or he resides. Hence it is concluded that a mother can file application for maintenance under Section 125 of the new Cr.P.C. in the district where she resides.
15. On behalf of the opp. party reliance was placed on Section 462 Cr.P.C. and it was argued that even if there has been irregularity, namely, institution of the application for maintenance at wrong place, that irregularity in face of the impugned revisional order should be overlooked under Section 462 of the new Code because no failure of justice has been pleaded or proved. I am of the opinion that in the circumstances of the instant case, Section 462 of the new Code corresponding with Section 531 of the old Code cannot be applicable. In the instant case objection to jurisdiction was taken at the very initial stage. Magistrate decided the question of jurisdiction as a preliminary facts and dismissed the application for want of jurisdiction. In revision the Session Judge took contrary view and passed order requiring the Magistrate to decide the maintenance application of the mother on merits. Proceeding under Section 125 Cr.P.C. is no doubt, covered by 'other proceedings' as found in Section 462. But there has been no finding or order on the merits of the maintenance application. Finding of the revisional court confined to the question of jurisdiction, cannot be 'finding' as contemplated in Section 462. Key note for applying Section 462 is 'failure of justice'. Where simply a question of jurisdiction has been decided by the lower revisional court, it cannot be said that reversal of the decision of the lower revisional court shall into 'failure of justice'. When question of jurisdiction has been raised at the beginning of the proceeding, Section 462 is not attracted. Hence, if this court would have taken the view that mother is entitled to claim maintenance at the place only where the son resides, this court would not have upheld the impugned revisional order under Section 462.
16. In result revision is dismissed.
17. Learned Magistrate seized of the proceedings shall proceed to decide the case on merits.