Delhi District Court
Sh. Kirpal Singh vs Mrs. Dikka Devi on 22 September, 2009
1
IN THE COURT OF SHRI S.K. SARVARIA
ADDITIONAL SESSIONS JUDGE 01/SOUTH
PATIALA HOUSE COURT
CRIMINAL REVISION NO. 159/2009
Sh. Kirpal Singh
son of Sh Pancham Singh
r/o 25, Aliganj Village
Kotla Mubarakpur
New Delhi ......... Petitioner
Versus
Mrs. Dikka Devi
wife of Kirpal Singh
c/o Mr Deepu
r/o D1/101, Chankayapuri
New Delhi ......... Respondent
Date of Institution 13.2.09
Date when arguments
were heard 09.09.09
Date of Order 22.09.09
2
ORDER
Present Revision petition has been filed by the petitioner under S. 397 (1) CrPC, assailing orders dated 19/1/2009 and 6/2/2009, passed by Ld. Metropolitan Magistrate in execution petition bearing No. 1/2009, whereby application for recalling of order dated 19/1/2009, wherein warrant of attachment of salary of the present petitioner was issued, was rejected vide order dated 6/2/2009. But this order dated 6.2.09 was passed by learned Metropolitan Magistrate in the Execution Petition No. 84/2007 and is subject matter of Criminal Revision No. 158/2009 filed by petitioner against same respondent and is, therefore, dealt with in the said revision petition.
The brief facts of the case relevant for deciding the controversy between the parties is as under:
An application under S. 125 CrPC was filed by the wife and two minor daughters of the present petitioner before the Ld. Trial Court on 9/1/ 2006. In the said application vide interim order dated 21/2/2007, 3 petitioner was directed to pay maintenance of Rs. 1,000/ to applicant wife from the date of filing of the application and Rs. 1,000/ each to applicants minor daughters from the date of filing of the application till its final disposal or till they attain age of majority, whichever is earlier. On 6/6/2007 execution petition was filed by the applicant wife when the husband failed to comply with the order dated 21/2/2007 praying for issue of warrants for attachment of the salary and also arrest of the judgmentdebtor husband for execution of maintenance order dated 21/2/2007. Meanwhile, the said maintenance order dated 21/2/2007 became modified vide an exparte final order dated 8/5/2008, wherein petitioner was directed to pay maintenance of Rs. 2,500/ to applicant wife from the date of filing of the application and Rs. 1,500/to daughter Sarita. The said order was assailed by way of an appeal filed on 4/6/2008, which was treated as a revision petition since no appeal lies against maintenance order. The said revision petition was allowed and the revisionist was given right to contest the petition under Section 125 CrPC subject to compliance of the interim 4 maintenance order dated 21/2/2007. However, the revisionist failed to pay interim maintenance to his wife and children to avail benefit of order of Sessions Court setting aside exparte final maintenance order leading to legal effect of revival of exparte maintenance order dated 8.5.08 passed by learned trial court. The learned trial court, therefore, passed order dated 25.8.09 to consign the file of petition under Section 125 CrPC to record room. Meanwhile On 2/1/2009, with passing of order dated 8/5/2008, execution petition was filed by the applicant wife when the revisionist husband failed to comply with the order dated 8/5/2008 praying for issuance of warrants for attachment of the salary and also arrest of the judgmentdebtor husband for execution of maintenance order dated 8/5/2008. On 19/1/2009 warrants of attachment of salary was issued against the present petitioner. Aggrieved with the said order present petition has been filed by the petitioner.
The contention of counsel for the petitioner is that applicant Kavita became major in January 2007 and got married on 17/11/2007, so as on 5 the date of passing of the said maintenance order dated 21/2/2007, she was a major and thus, she cannot claim maintenance. Furthermore, Kavita cannot be a party to the said execution petition dated 6/6/2007 as she had no right under order dated 21/2/2007. The counsel urges that due to this technical defect, the order dated 19/1/2009 passed by the executing court directing issue of warrant of attachment against salary of the petitioner deserves to be set aside.
Refuting the contentions of counsel for the petitioner, counsel for the respondent contends that since in memo of parties before the trial court in application for maintenance and in the order dated 21/2/2007, Kavita was shown as a party, therefore, even in execution petition she has been mentioned as a party, but the same is not fatal to the case of the respondent. The counsel submits that only Rs. 37,000/ has been paid by the petitioner till date that too after order of Hon'ble High Court. The counsel relied on decision of the Hon'ble High Court of Delhi in Rajeev Preenja vs. Sarika & Ors. In Crl M C Nos. 1859/2008 and 3089/2008 6 decided on 26/2/2009.
I have heard Ld. Counsel for the parties and perused the record. Maintenance is a civil right available to give economic support to the needy persons from those who are liable to protect/ maintain their spouse, children, parents, etc. In law parents are bound to maintain minor children, major children their parents, husband his wife and viceversa too. The quantum of maintenance varies depending on the economic status of the parties. The various personal laws such as the Hindu Marriage Act, 1955, the Hindu Adoptions and Maintenance Act, 1955, the Indian Divorce Act, 1869, the Parsi Marriage Act, 1936, the Special Marriage Act, 1954, the Shariat Laws, etc., provide for maintenance, also known as alimony or allowance. Civil courts take long time to dispose of cases. Even if a competent civil court passes a judgment and decree, execution takes months and even years due to cumbersome legal procedures. Even before the maintenance is realised the decree holder may die of starvation. Realising the above, the right to maintenance has been incorporated under 7 S. 125 in Chapter IX of the Criminal Procedure Code (Cr. P.C.). The object of this provision is to provide a summary remedy to the dependent wife, children, and parents from destitution and to serve a social purpose. The right under these provisions cannot be defeated by anything in the personal law of the parties.
For ascertaining the purpose and spirit of Section 125, which is analogous to the spirit and purpose of S. 488 of the old Code, 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 : "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 scrapheep 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 8 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".
Relief under Section 125 CrPC is of a civil nature. (See: Nandlal Mishra vs. Kanhaiya Lal Misra - AIR 1960 SC 882) But criminal process is applied for the purpose of summary and speedy disposal in the interest of society so that the helpless wife and children are not left on the road. (See: Ashish vs. D.C. Tiwari - 1969 DLT 693 and G. Pandari vs. Prakash Rao - AIR 1952 Hyd. 44). S. 125 CrPC is a self contained code and if the husband makes a default in payment of maintenance then provision under subsection (3) of S. 125 CrPC prescribes for mode of enforcement of recovery of maintenance amount.
The present petition should first pass the test of maintainability before the contentions of parties are dealt with. It is well settled that no revision lies from an interlocutory order. In this regard, Section 397 (2) of the Code of Criminal Procedure is worth referring to here and the same is 9 as under:
(2) The powers of revision conferred by sub section (I) shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceeding.
Now what remains to be seen is whether, the order of attachment of future salary of revisionist passed by learned Metropolitan Magistrate is an interlocutory order or a final order. In this regard in Dr. Rohit Dandekar vs. Dr. Raj Kavitha - AIR 2003 Kant 511 (DB), it was observed as under:
9. In Bouvier's Law Dictionary (Third Revision), the meaning of the words "interlocutory" and "interlocutor" is stated thus :
"INTERLOCUTORY. Something which is done between the commencement and end of a suit or action which decides some point, or matter, which, however, is not a final decision of the matter in issue : as, interlocutory judgments, or decrees, orders. The term seems to have 10 originated with Lord Ellesmere; 1 Holdsw. Hist, E. L. 213."
"INTERLOCUTOR. Properly means a judgment or judicial order pronounced in the course of a suit, which does not finally determine the cause. But in Scotch practice, the term is extended to the judgments of the Court of Session or the Lord Ordinary, which exhaust the point at issue, and which if not appealed against will have the effect of finally deciding the case, Bell; Moz. &W."
10. As per Black's Law Dictionary, Seventh Edition, the word "interlocutory" as an adjective, means "Interim or temporary, not constituting a final resolution of the whole controversy".
11. In Venkataramaiya's Law Lexicon with Legal Maxims (Revised 2nd Edition) dealing with the word, 'interlocutory', it is stated thus;
"Interlocutory. Something intervening or happening between the commencement of law proceedings and their termination i.e., during the progress of an action of law or a suit in equity; 11 thus, an interlocutory decree in a suit in equity signifies a decree that is not final and does not conclude the suit, for it seldom happens that the first decree can be final; for if any matter of fact is strongly controverted, the Court usually directs an inquiry in chambers to be made, after which the matter is to come on again for further consideration, and the final decree is therefore, suspended until the result of such inquiry is made known. An interlocutory Judgment in an action at law signifies a judgment that is not final, but which is given upon some plea, proceeding, or default, occurring in the course of the action, and which does not terminate the suit; such are Judgments on demurrer, or verdict for the defendant on certain dilatory pleas called pleas in abatement, or those which are given when although, the right of the plaintiff in the action is established, yet the amount of damages he has sustained is not ascertained, which cannot be done without the intervention of the jury. This happens when the 12 defendant in an action suffers judgment by default, or confession, or upon a demurrer, in any of which cases, if the demand sued for the damages and not a specific sum, then a Jury must be called to assess them; therefore, the judgment given by the Court previous to such assessment by the jury is interlocutory and not final, because the Court knows not what damages the plaintiff has sustained. An interlocutory order is an order made during the progress of a suit upon some incidental matter which arises out of the proceedings, as an order for an injunction, for instanceBrown's Law Dictionary pp 19293."
12. As per the Law Lexicon by P. Ramanatha Aiyer (Second Edition (Reprint), an interlocutory order is one which is made pending the cause and before a final hearing on the merits. An interlocutory order is made to secure some end and purpose necessary and essential to the progress of the suit, and generally collateral to the issues formed by the pleadings and not 13 connected with the final judgment. In Smith v. Cowell (1880) 6 QBD 75, it was held that interlocutory order is not necessarily confined to an order made between writ and final judgment but it means an order other than final order or judgment.
13. In the case of Amar Nath v. State of Haryana MANU/SC/0068/1977, Hon'ble Fazl Ali, J.
speaking for the Supreme Court, has observed:
"It seems to us that the term 'interlocutory order' in Section 397(2) of the 1977 Code has been used in a restricted sense and not in any broad or artistic sense. It merely denotes orders of a purely interim or temporary nature which do not decide or touch the Important rights or the liabilities of the parties. Any order which substantially affects the lights of the accused, or decides certain rights of the parties cannot be said to be an interlocutory order so as to bar a revision to High Court against that order, because that would be against the very object which formed the basis for insertion of this 14 particular provision in Section 397 of the Code of Criminal Procedure, 1973.
But orders which are matters of moment and which affect or adjudicate the rights of the accused or a particular aspect of the trial cannot be said to be interlocutory order so as to be outside the purview of the revisional Jurisdiction of the High Court."
14. Further, in the case of Manjoor Ahmad v.
State of Bihar, 1978 BLJ 670 at pp 671, 672 :
(1978 Cri LJ NOC 243), it was held that an order under Section 116(3) Cr. P. C. 1973, directing a party to execute ad interim bond affects the party concerned and, therefore, it cannot be said to be an interlocutory order so as to be outside the purview of revisional jurisdiction.
15. In Volume 22 of the 3rd Ed. of Halsbury's Laws of England in paras 1606, 1607 and 1608, it has been stated thus :
"1606. A judgment or order may be final for one purpose and interlocutory for another, or final as 15 to part and interlocutory as to part. The meaning of the two words must therefore be considered separately in relation to the particular purpose of which it is required."
"1607. In general a judgment or order which determines the principal matter in question is termed final."
"1608. An order which does not deal with the final rights of the parties, but either (1) is made before judgment, and gives no final decision on the matters in dispute, but is merely on a matter of procedure, or (2) is made after judgment, and merely directs how the declarations of right already given in the final judgment are to be worked out, is termed "interlocutory". An interlocutory order, though not conclusive of the main dispute, may be conclusive as to the subordinate matter with which it deals."
16. In S. Kuppaswami Rao v. King MANU/FE/0001/1947, Chief Justice Kania speaking for the Federal Court, having referred to 16 some English decisions at pp. 185 and 186 including one of Lord Esher, M.R. in Salaman v. Warner (1891) 1 Q.B. 734 was pleased to quote the following observations of Lord Esher. M.R. with approval:
"If their decision, whichever way it is given, will, if it stands, finally dispose of the matter in dispute. I think that for the purposes of these rules it is final. On the other hand, if their decision, if given in one way, will finally dispose of the matter in dispute, but, if given in the other, will allow the action to go on, then I think it is not final, but interlocutory."
17. In Madhu Limaye v. State of Maharashtra MANU/SC/0103/1977, the Supreme Court has opined that simply because an order cannot be regarded as final order, the Court cannot come to a conclusion that such order should be an "interlocutory order." In other words, an order though not a final order, nevertheless, need not necessarily be an "interlocutory order", but, will be an order for the purpose of availing further legal 17 remedies in terms of the statute concerned. The thrust of the argument of Sri Bapu Heddurshetty that the impugned order should be regarded as an "interlocutory order", is based on the reasonings that the impugned order made by the Family Court under Section 26 of the Hindu Marriage Act, could not be regarded as a final order, in the sense that that order is liable to be altered, modified and even cancelled at the instance of a party, from time to time.
18. Generally speaking, an interlocutory order is made by the Judicial Forum or the Court from time to time during the pendency of the main proceedings In aid of the final order or decree to be made after adjudication of the dispute and to maintain status quo. If this object of Interim orders is kept in mind, it cannot be said that an order entrusting custody of a ward either in favour of mother or father, whether during pendency of the main proceeding or after termination of the same, is an order made in aid of the final order. The 18 main proceedings initiated by the mother before the Family Court were for dissolution of the marriage oh the ground of cruelty and desertion. There is clear discernible object beyond the empowerment of the Family Court to pass appropriate order with regard to the custody of minor child during or after termination of the proceedings, and the intendment clearly reflects the paramount concern of the Court towards the welfare of the child. In other words, the intendment is that the dispute between the parents should not shatter or come in the healthy way of upbringing of the child.
19. In case of V.C. Shukla v. State through C.B.I. MANU/SC/0284/1979, the Supreme Court held that the 'interlocutory order' has to be construed in contradiction to or in contrast with final order; it means not a final order, but ,an intermediate order. It is made between, the commencement of an action and the entry of the judgment. Thus, it is quite clear an "interlocutory order", in law, means 19 not that order which decides the cause but which only settles some intervening matters relating to the cause.
Further in Minor Anu @ Atul vs. Ratan Lal Sharma - II (1993) DMC 121 (Raj) (DB), it was observed as under:
In V.C. Shukla v. State through C.B.I., AIR 1980 SC 962, Fazal Ali, J. in delivering the majority judgment reviewed the entire case law on the subject and deduced therefrom the following two principles, namely; (i) that a final order has to be interpreted in contradistinction to an interlocutory order; and (ii) that the test for determining the finality of an order is whether the judgment or order finally disposed of the rights of the parties."
In Mrs. Jesmin Rahman vs Mrs. Afruza Begum And Anr. decided on 25/9/2007 by Gauhati High Court, the court discussed that an order of attachment under S. 146 Cr.P.C. is an interlocutory order or not and observed as under:20
11. Coupled with the above, what also needs to be noted is that an order of attachment can be passed by an Executive Magistrate in exercise of his powers under Subsection (1) of Section 146 if upon drawing a proceeding under Sub section (1) of Section 145, the Magistrate considers the case to be one of emergency. This position of law is not in dispute. That an order of attachment, under Section 146(1), is an interlocutory order is, in fact, not in dispute. Thus, an order of attachment cannot be made unless a proceeding under Section 145 is pending. An order of attachment under Section 146(1) is inherently temporary in nature as the order may be withdrawn, at any time, by the Magistrate if he is satisfied that there is no longer any likelihood of breach of the peace with regard to the subject of dispute. An order, under Section 146(1), is nothing, but a stepinaid in the pending proceeding under Section 145. An order of attachment is, thus, neither a final order nor a 21 quasi final order. In fact, by attachment, the subject of dispute becomes custodia legis. (See Deokuer v. Sheo Prasad . Since an order of attachment is revocable at any stage of the proceeding, it becomes inherently temporary in nature and is, therefore, regarded as an interlocutory order. (See Indrapuri Primary Co operative Housing Society Ltd. and Anr. v. Sri Bhabani Gogoi reported in (1991)1 GLR 228 :
1991 Cri LJ 1765.
From the above discussion, it is manifest that the impugned order of issuance of warrant of attachment of salary of the petitioner is an interim order as the same is only a mode of recovery and not a recovery in itself and thus does not finally settle the rights of the parties to the lis. It is ordered merely to deter the delinquent husband from not defaulting in making payment of maintenance in future. An order of this type does not, in my opinion, decide rights and liabilities of the parties concerning the dispute. It is purely of an interim or temporary nature. Also in view of above 22 discussion and drawing analogy from the aforenoted decision in Mrs. Jesmin Rahman (Supra), also the present order of attachment is an interlocutory order.
Thus, from the aforesaid discussion it is manifest that the order of issuance of warrant of attachment of salary of the petitioner is an interlocutory order within the meaning of S. 397 (2) of CrPc and thus revision does not lie against said order. Thus, the present petition is liable to be dismissed on this ground alone.
In the alternative, even if the order of issuance of warrant of attachment of salary of the petitioner is a final order, it is well stated that executing Court cannot go behind the decree, unless the decree sought to be executed is a nullity for a lack of inherent jurisdiction. A decree is without jurisdiction if the Court passing the decree usurps a jurisdiction which it did not have and which could not be waived by the parties. (See: Sunder Dass v. Ram Prakash MANU/SC/0368/1977 : [1977] 3 SCR 60 ; Seth Hiralal Patni v. Sri Kalinath MANU/SC/0041/1961 : [1962] 2 SCR 23 747 ; Vasudev Dhanjibhai Modi v. Rajabhai Abdul Rehman and Ors.
MANU/SC/0531/1970 : [1971] 1 SCR 66 ; Rafique Bibi (dead) by Lrs. v. Sayed Waliuddin (dead) by Lrs. and Ors. MANU/SC/0634/2003 : AIR 2003 SC 3789 ) In Deepa Bhargava v. Mahesh Bhargava MANU/SC/8468/2008 : (2009)2SCC294 , the Hon'ble Apex Court held as under:
11...An executing court, it is well known, cannot go behind the decree. It has no jurisdiction to modify a decree. It must execute the decree as it is.
Therefore, while executing the maintenance order the executing court has powers to negate the bare technicalities and while executing the order passed by the trial court it may order that since the applicant Kavita has attained the age of majority and is now married, she is liable only to the payment of maintenance from the date of filing of the application for the maintenance till the final disposal of the said application or her attaining 24 majority, whichever is early, as mentioned in the maintenance order passed by the Ld. Trial court. Be that as it may, it is not in dispute and is well settled that justice is above all and mere technicalities should not stand in the way of justice. Merely because inadvertently, name of Kavita who has already attained majority is mentioned in the execution petition would not lead to dismissal of the entire execution petition.
The present petition filed by the petitioner is nothing but a means to not let the respondent get her due amount of maintenance from the petitioner. He is filing one or the other application/petition on frivolous grounds to delay the execution of the order of maintenance passed in favour of the respondent and trying to defeat the purpose of the provision enshrined in S. 125 CrPC.
In view of the foregoing discussion, the present revision petition is dismissed. However, I would hasten to add that learned Metropolitan Magistrate shall take into account:
(a) that daughter of revisionist Ms Kavita who has attained majority 25 and is married shall not receive interim maintenance post her majority and
(b) Due adjustment be given to the amount of Rs. 30,000/ deposited by revisionist in another Sessions Court in C.A. No. 47/08 for which release order of said amount is already passed by learned Additional Sessions Judge on 21.7.09, if the said amount is already received by respondent wife.
The trial court record be returned along with the copy of this order. The order be sent to the server (www.delhidistrictcourts.nic.in). The revision file be consigned to the record room.
Announced in the open ( S K Sarvaria )
court on 22.09.09 Addl Sessions Judge01/South
Patiala House Court