Madhya Pradesh High Court
Roshan Singh Nepali vs Smt.Meena Nepali on 10 March, 2015
1 Cr. R. No.1415 of 2005
HIGH COURT OF MADHYA PRADESH AT JABALPUR
SINGLE BENCH: HON'BLE SHRI JUSTICE SUBHASH KAKADE
Criminal Revision No. 1415 of 2005
APPLICANT: Roshan Singh Nepali (now deceased)
Versus
RESPONDENTS: Smt. Meena Nepali and Anr.
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Shri U.K. Sharma, Senior Advocate with Shri P.N. Tiwari, Advocate for the applicant.
Ms. Durgesh Thapa, Advocate for the respondents.
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(ORDER) 10.03.2015 This order shall govern the disposal of I.A. No.3511/2014, an application filed on behalf of proposed applicant Smt. Bhagwati Singh, as alleged widow of revisionist Roshan Singh under Section 394(2) of Criminal Procedure Code, 1973, here-in-after referred to "the Code", to substitute her name at the place of the revisionist Roshan Singh and permit her to prosecute this revision which was filed by the revisionist Roshan Singh in his life time on dated 22. 09. 2005.
Also disposed of I.A. No.12502/2014, second application filed by Smt. Bhagwati Singh under section 394(2) read with Section 482 of the Code, which is repetition of facts of I.A. No. 3511/2014 with same relief.
02. The case of the respondents before the Family Court, Jabalpur was that in the year 1992 the marriage was solemnized between Roshan Singh and respondent No.1 and on 10.08.1993 the respondent No.2 was born. But, in the year 1993, Roshan Singh left respondent No.1 and never takes care of respondents. Roshan Singh 2 Cr. R. No.1415 of 2005 also developed illegal relation with Bhagwati Bai. The respondent No.1 wishes to live with Roshan Singh, but, he refused and demanded Rs.25,000/- as dowry. On 25.10.1993 an application was filed by Roshan Singh for marriage with Bhagwati Bai before the appropriate authority, respondent No.1 raised objection also sent a demand notice on 28.10.1993 for maintenance from Roshan Singh.
03. Roshan Singh entered his appearance by filing reply and denied the above mentioned averments of the respondents stating that the respondents have filed this application for maintenance on false and concocted grounds. It is submitted that the respondent No.1 is not his wife because he never married with her and also denied that the respondent No.2 is his son. It is also mentioned that Bhagwati Bai is his wife and in support of it, marriage certificate also filed duly issued by appropriate Samiti. Couple has one daughter Harsha Singh and son Rohan Singh. He has been retired from services and he is getting only Rs. 2,000/- per month as pension, hence maintenance application filed by the respondents deserves to be rejected.
04. In a proceeding under section 125 of the Code, the Court is expected to pass appropriate order after being prima facie satisfied about the relation status of the parties.
05. In his turn, learned Principal Judge, Family Court Jabalpur vide order dated 30.07.2005, passed in Case No.294/2002 (Old No.101/2002), whereby allowing the application filed by the respondents while found that the respondent No.1 is legally wedded wife of Roshan Singh and granted maintenance to the tune of Rs.1,500/- per month to the respondent No.1/wife and Rs.1,000/- per month to the respondent No.2/son Sagar.
3 Cr. R. No.1415 of 2005
06. Being aggrieved by above mentioned impugned order this revision under Section 19(4) of Family Courts Act and Section 397/401 of the Code, has been filed by Roshan Singh.
07. During the pendency of this revision, the revisionist Rohan Singh died on dated 12.01.2014.
08. This court vide order dt. 18.11.2014 disposed of I.A. No.2129/2014, an application filed under Section 394 of the Code informing the Court regarding date of death of applicant i.e. on 12.01.2014 along with the information that his married wife Smt. Bhagwati Singh is alive, which was further supported by her affidavit as well as with photo copy of duly issued death certified of Rohan Singh.
09. The respondent No.1 does not took any step even after knowing factum of death of Roshan Singh, but, Smt. Bhagwati Bai come forward with submissions mentioned in Para 4 of I.A. No.3511/2014 under the provisions of Section 394(2) of the Code and sought the relief that her name to be substituted at the place of revisionist Roshan Singh which reads as under:-
"That, now it is essential for Smt. Bhawati Bai W/o Roshan Singh that she must raised objection and it shall be decided by Hon'ble Court that Respondent (Smt. Meena) is not married wife of late Roshan Singh and not entitled for maintenance."
10. Shri U.K. Sharma, learned senior counsel for the applicant submitted that after death of Roshan Singh the respondent No.1 started creating problem to his client who is legally married wife of Roshan Singh on the strength of impugned order dated 30.07.2005 passed by the learned Family Court against which this revision was 4 Cr. R. No.1415 of 2005 filed by Roshan Singh, hence permission be granted to prosecute this revision by Smt. Bhagwati Singh. It is also submitted that Smt. Bhagwati Singh is the validly married wife of Roshan Singh and this fact is verified by the competent military officers as the respondent No.1 was married to other person Shri Raju.
11. Ms. Durgesh Thapa, learned counsel appearing for the respondent vehemently opposed the above submission mentioned by learned counsel for the applicant and submitted that Smt. Bhagwati Bai having the status of kept because, in service record of Roshan Singh marriage date with Smt. Bhagwati Bai is mentioned 18.09.2013 while marriage with the respondent No.1 was solemnized on dated 19.05.1992 as per certificate. Roshan Singh misguided his employers. Learned counsel vehemently opposed these I.As. on the ground that Section 394 of the Code applied only to the matters related with criminal appeals, not with the criminal revisions, therefore prayed for dismissal of I.As.
12. These I.As. 3511/2014 and 12502/2015 are the real cause of litigation between these two ladies. Heard learned counsel for the parties at length and also perused the record made available by the parties to decide this dispute.
13. Section 394 (1) of the Code reads as under:-
"Every appeal under section 377 or section 378 shall finally abate on the death of the accused."
14. Proviso as well as Explanation to sub- section (2) of section 394 of the Code have been introduced with a view and object to provide a machinery whereby 'aggrieved persons' the spouse, children, parents, brother, sister or near relatives of a deceased-appellant, obtain leave 5 Cr. R. No.1415 of 2005 of the court to continue the appeal by making an application within 30 days of the death of the appellant, who dies during the pendency so they can test the conviction and get rid of the odium which would otherwise attach to them also.
15. Applicability to revision, as regards the revisional jurisdiction of the High Court there is no provision similar to Section 394 of the Code. Nor is there any provision whether a revisional application can be or cannot be made in respect of an order of conviction when convicted person is dead.
16. Needless to mention here that marriage between the respondent No.1 and Roshan Singh was challenged even then learned Family Court vide order dated 30.07.2005 allowing the application filed by the respondents for the purpose of granting maintenance found that the respondent No.1 is wife of Roshan Singh and granted maintenance to the tune of Rs.1,500/- per month to the respondent No.1/wife and Rs.1,000/- per month to the respondent No.2/son Sagar. Challenge being made by Roshan Singh invoking revisional jurisdiction of this court but, unfortunately he died on dated 12.01.2014. Now Smt. Bhagwati Bai is before the court with same plea that she is legally wedded wife of Roshan Singh and also raised same objection which was raised by Roshan Singh during full fledged trial that respondent No1 Smt. Meena is not married wife of Roshan Singh.
17. Vide order dated 08.02.2006 the Court, after hearing learned counsel for the parties allowed the I.A. No.7964/2005, an application for stay of payment of maintenance amount filed by Roshan Singh and directed that he will deposit Rs.2,000/- (Two thousand) per month in the Family Court, Jabalpur. However, the said amount shall not be 6 Cr. R. No.1415 of 2005 withdrawn by the respondents, till further orders. This fact brought to the knowledge of the Court that no amount has been deposited by Roshan Singh in the Family Court, Jabalpur as per the direction dated 08.02.2006. Hence, I.A. No.2566/2014, an application for vacating the stay granted on dated 08.02.2006 was filed by the respondents.
18. The Apex Court in case of Bondada Gajapati Rao v. State of A.P., AIR 1964 SC 1645 given directions that there must always be some discernible reason for permitting another person to continue an appeal whether civil or criminal after the demise of the appellant.
19. Therefore, on the strength of the provisions of Section 394 (2) of the Code as well as direction given by the Apex Court in case of Bondada (supra) these I.As. 3511/2014 and 12502/2015 can not be allowed hence, deserve to be rejected. It is also pertinent to mention here that in proceedings under Section 125 of the Code interference cannot be made by the High Court under inherent powers provided by Section 482 of the Code.
20. Another vital aspect of this dispute. In this case in hand, the Court is dealing with the maintenance proceedings under the special provisions of Sections 125 to 128 of the Code enumerated in Chapter IX of the Code.
21. Chapter IX "Order for maintenance of wife, children and parents"
of the Code including Section 125 to 128, is inserted by legislation as special enactment meant for protection of wife, children and parents. These sections of Chapter IX of the Code are measure of social justice and special enactment to protect women, children and parents and falls within the Constitution sweep of Article 15(3) reinforced by Article 39 of the Constitution of India. There is no dispute that this chapter 7 Cr. R. No.1415 of 2005 contains the provisions which only gives effect to the natural duty of a man to maintain his wife, children and parents and is essentially a speedier remedy available against starvation to be disposed in a summary manner.
22. Chapter IX of the Code is a self-contained one and the relief given under it is essentially of a civil nature. Therefore the findings of a Magistrate under this Chapter are not final and the parties can legitimately agitate their rights in a Civil Court. The proceedings under Section 125 of the Code are quasi civil in nature. But that does not mean that the Court dealing with them gets all the powers of a Civil Court and that all the rules governing the civil proceedings can be important. The proceedings under the provisions of Section 125 of the Code are in the nature of civil proceedings, but remedy is a summary one.
23. The proceedings under main Section 125 of the Code are in the nature of civil proceedings. Though they are wholly governed by the procedure of the Code, they are really of civil nature, but are dealt with summarily in a Criminal Court for the purpose of speedy disposal on grounds of convenience and social order.
24. It only provides a speedy remedy against starvation for a deserted wife or child or parents. It provides for a summary procedure which does not cover entirely the same ground as the civil liability of a husband or father or son under his personal law to maintain his wife or child or parents. When substantial issues to civil law are raised between the parties their remedy lies only in the Civil Court.
25. Therefore, it is crystal clear that this Chapter IX of the Code is not intended to provide for a full and final determination of the status 8 Cr. R. No.1415 of 2005 and personal rights of the parties. An order made under Section 125 of the Code is tentative and is subject to the final determination of rights in civil Court. Section 112 of the Evidence Act have no application to a proceedings initiate under Chapter IX of the Code, which is summary and provisional in nature and does not decide finally the respective rights of the parties.
26. Therefore, question arises, whether any relief can be granted to Smt. Bhagwati Singh by the Courts under the provisions of Section 125 to 128 of Chapter IX of the Code as above mentioned in Para 4 of I.A. No.3511/2014 against the existing finding by the learned Family Court that the respondent No.1 is wife of Roshan Singh though, for the limited purposes of proceedings of Section 125 of the Code?
27. Where there is a question arises regarding annulling the marriage, it can be decided by the Civil Court under the provisions of Personnel Law. The burden of proof, required to prove dissolution of marriage, or annulment of marriage on the grounds mentioned by Roshan Singh and presently by Smt. Bhagwati Singh is required to be scrutinized by the Civil Court only. In proceedings under Section 125 Cr.P.C., the Magistrate cannot decide the validity of marriage between the parties.
28. Considering the above enunciation of law, it transpires that I.A. Nos.3511/2014 and 12502/2014 are devoid of any merit looking to the facts and circumstances of the claim of Smt. Bhagwati Singh, hence are disallowed in light of directions given in Bondada (supra) case by the Apex Court.
(SUBHASH KAKADE) JUDGE ak/