Allahabad High Court
Smt. Shabnam & Others vs State Of U.P. & Another on 14 May, 2014
Author: Kalimullah Khan
Bench: Kalimullah Khan
HIGH COURT OF JUDICATURE AT ALLAHABAD ?A.F.R. Court No. - 46 Case :- CRIMINAL REVISION No. - 2090 of 2006 Revisionist :- Smt. Shabnam & Others Opposite Party :- State Of U.P. & Another Counsel for Revisionist :- Aijaz Ahmad Khan Counsel for Opposite Party :- Govt. Advocate,A. Daga Hon'ble Kalimullah Khan,J.
The matter is taken up in the revised list. But none turned up for the revisionists. Similarly none turned up for the opposite party no.-2 Parvez @ Guddu.
Heard Sri Arudendra Kumar Singh, learned A.G.A. and perused the material available before the Court including the impugned judgment and order dated 24.2.2006 passed by learned Judge, Family Court, Meerut in case no. 447 of 2005 (Smt. Shabnam and three others vs. Parvez @ Guddu).
This criminal revision has been directed under Section 397/401 Cr.P.C. challenging the impugned judgment and order dated 24.2.2006 on the ground that it suffers from illegality, incorrectness and impropriety.
In nutshell, the case of the revisionists is that Smt. Shabnam revisionist no.-1 was married with opposite party no.-2 Parvez @ Guddu six years back since the date of filing the application under Section 125 Cr.P.C. Out of this wedlock, Km. Nazra and Master Aasif revisionist nos.- 2 and 3 respectively were born and Sameer revisionist no.- 4 was in the womb of the mother at the time of filing the said application under Section 125 Cr.P.C.
Since the beginning of the marriage, opposite party no.-2 Parvez @ Guddu and his family relatives were torturing her and were demanding additional dowry. During the period when she lived with him she was assaulted and ousted from his house. For the first time, when she was ousted, she came to the house of her parents and lived there. Panchayat intervened and sent her back along with her children to the house of opposite party no.-2 Parvez @ Guddu after satisfying the part of the demands. But the misery and sorrow of the applicants/ revisionists remained same at the instance of the opposite party no.- 2. He and his family relatives continued practicing cruelty upon her in different ways. Ultimately, she was beaten and ousted along with her children from the house of the opposite party no. 2. Having no option she again went to take shelter to the house of her parents where she lived for one year and thereafter, she lodged an F.I.R. under Section 498-A, 323, 504, 506 I.P.C. and Section 3/4 Dowry Prohibition Act. Apart from that she filed an application under Section 125 Cr.P.C. before the court of Family Judge, Meerut, with a pleading that she is legally wedded wife of opposite party no.-2 and out of this wedlock, she has given birth to two children and a child was in the womb that she was ousted as stated above. She has no source of livelihood. She is unable to maintain herself and her children whereas her husband Parvez @ Guddu has sufficient means in view of the fact that he earned Rs. 20,000/- to 25,000/- per month from his business. Process were issued against opposite party no.-2 but after service he did not appear and, therefore, vide order dated 17.11.2005 case under Section 125 Cr.P.C. was directed to proceed ex-parte against him and the applicant/revisionist Smt. Shabnam was directed to adduce evidence.
On perusal of the impugned judgment and order, it transpires that she has sworn and filed an affidavit in support of her pleading made under Section 125 Cr.P.C.
Having heard learned counsel for the parties, after making an appraisal of the materials available on record, the Family Court Judge, Meerut vide his impugned judgment and order dated 24.2.2006 dismissed the application of the revisionists made under Section 125 Cr.P.C. on the ground that in the affidavit she has not made it clear that as to why she was ousted from the house of her husband and, therefore, it appears that she is voluntarily living with her parents out of her own sweet will.
Feeling aggrieved, this criminal revision has been filed.
Learned A.G.A. Sri A.K. Singh has submitted that the provisions of maintenance in the Criminal Procedure Code was inserted by the Parliament subsequently considering it to be a benevolent legislation. It is not a pure civil proceeding. The provision regarding maintenance was already there in Hindu Marriage Act and in Muhammadan Law. But to provide promptly the maintenance to needy persons who were neglected and refused to maintain by their husband was a hard nut to crack. Therefore, the aforesaid provisions was inserted in Cr.P.C. as an additional and expeditious measure to ensure providing of food, clothes etc. so that the person entitled for the maintenance may not die of starvation. The nature of the case and the procedure to be adopted while dealing with the application under Section 125 Cr.P.C. does not call for strict prove of pleading.
The main lis before the court below in such a matter is as to whether or not under the totality of the circumstances, husband is under legal obligation to provide the maintenance to his wife and children. Therefore, according to him the pious and legal duty entrusted to the Family Court Judge was to see the contents of the affidavit in the light of pleading made in application under Section 125 Cr.P.C. Had he seen the real lis in between the parties in the light of pleading of the applicants/ revisionists certainly he would have come to the conclusion that what the lady meant to say was that she is the legally wedded wife of opposite party no.-2 and out of this wedlock three issues have been born and she along with three minor children is living with her parents simply because her husband does not provide food and refused to maintain her and the atmosphere of her in-laws' house is surcharged that is to say that due to atrocity of the opposite party no.-2 and his blood relations the atmosphere of in-laws' house is not cordial for her to live with her husband. He has further argued that in the last sentence of his order showing the reasons for dismissing the application learned court below has said that it appears that revisionist no.-1 along with her children is living with her parents out of her own sweet will. He emphasized that there is no such evidence on record warranting such a conclusion.
I have perused the contents of the application made under Section 125 Cr.P.C. and the impugned judgment and order passed by learned court below, there is no evidence available to infer that revisionists are living separately without any sufficient cause. It is altogether a different matter that no specific averment has been made in the affidavit as mentioned by the learned court below in the impugned judgment and order that her husband has refused to maintain her.
The object and the scope of Section 125 Cr.P.C. is that the proceedings under this section are not punitive. The object is not to punish a person for neglect to maintain those whom he is bound to maintain. The section provides only a speedy remedy by a summary procedure to enforce liability in order to avoid vagrancy. The provisions of Chapter IX Cr.P.C. should be liberally construed as the primary object is to give social justice to women and children and to prevent distribution and vagrancy by compelling those who can support those who are unable to support themselves. These provisions provide a speedy remedy to those who are in distress. They are intended to achieve this social purpose. This section gives effect to the natural and fundamental duty of a man to maintain his wife, children and parents so long as they are unable to maintain themselves.
In regard to the nature of proceedings and proof it is to be added that it is not intended to provide for a full and final determination of the status and personal rights of the parties. The proceedings are simple in nature providing a simple and speedy remedy. The proceedings are essentially judicial proceedings of a Criminal Court and are governed by the Code as such. A proceedings under this section is of summary nature, the intricacies of the law are not required to be gone into. It is not a criminal proceeding at all. It serves a social purpose and only prescribes an alternative forum to get relief. Though the section appears in a criminal trial and the remedy is a summary one, the proceedings are of a civil nature. The enquiry is only quasi criminal and admissions made in the pleadings can be taken into consideration and acted upon. It is true that even though the proceedings are of a civil nature, they do not amount to a civil suit. The scope of the proceedings under this section is in essence not punitive but preventive rather than remedial. The proceedings under this section are quasi civil in nature. But that does not mean that the Magistrate dealing with them gets all the powers of a Civil Court of that all the rules governing the civil proceedings can be imported. The proceedings under this provision are in the nature of civil proceedings, the remedy is a summary one.
In this scenario of fact, it was the pious duty of or the minimum expectation from the court of justice that the learned court below should have specifically asked to the revisionist no.-1 Smt. Shabnam by putting the specific query as to why and under what circumstances she was living with her parents. It is settled principle of law that justice should not be only done rather it should appear to have been done.
To my mind, in the facts and circumstances of this case, complete justice has not been done in this case. It should be ensured in pursuance of the benevolent legislation meant for survival and maintenance of the wife and children who has no source of their livelihood. Court cannot be supposed to be a silent spectator.
In the result, the impugned judgment and order deserves to be set aside. Therefore, revision is allowed and the impugned judgment and order is hereby set aside.
The matter is remanded to learned court below to proceed with the case afresh after issuing the processes against the parties concerned and invite them to adduce their evidence and indulge itself to reach on a logical conclusion which is just and proper.
Let the matter be placed before the learned court below on 23rd of July, 2014.
The office is directed to communicate the order to learned court below within a week.
Order Date :- 14.5.2014 Atmesh