Kerala High Court
Abdurahima vs Khadeeja And Anr. on 30 March, 1987
Equivalent citations: 1988CRILJ28
ORDER P.K. Shamsuddin, J.
1. This revision has been filed against the order of the Court of Judicial I Class Magistrate, Tirur, in M.C. No. 86 of 1982. The above M.C. was filed by respondents herein claiming maintenance from the petitioner herein, and the learned Magistrate ordered maintenance to the respondents 1 and 2 at the monthly rate of Rs. 150/- and Rs. 100/- respectively from the date of the petition.
2. The case of the respondents in the petition was that in August 1979 the petitioner herein married the first respondent according to Muslim Law and the second respondent was born out of that wed-lock. Later she came to know that the petitioner had another wife. The petitioner began to behave towards her indecently. The child was born at her parent's house. One year before filing of the petition, the petitioner sent the respondents to the first respondent's parental home and thereafter he wilfully neglected to maintain the respondents. Finally he divorced the first respondent.
3. In the written objection filed by the petitioner he admitted the marriage, paternity of the child and also the divorce. According to him, he divorced the first respondent because her close relations compelled him to do so. He also averred that the first respondent had knowledge about the previous marriage. He also contended that he paid to the first respondent Rs. 1,200/- on her assurance that she will not claim maintenance. He is only a sweeper in a primary school in Dubai. He denied that he is getting Rs. 5,000/- as monthly salary. In these circumstances he contended that the respondents are not entitled to claim any maintenance.
4. On behalf of the respondents who are petitioners in the Crl. M.C., P.W. 1 was examined and Ext. P1 was marked and R.Ws. 1 to 6 were examined on behalf of the petitioner herein, Exts. D1 to D3 were also marked.
5. The contention raised by the Counsel for the petitioner in this Revision is that the evidence of P. W. 1 was taken in the absence of the petitioner herein who was the respondent in the Crl. M.C. and therefore the entire proceedings of the learned Magistrate are vitiated and liable to be set aside. The learned Counsel drew my attention to Sub-section (2) of Section 126 Cr. P.C. which reads as follows:
All evidence in such proceedings shall be taken in the presence of the person against whom an order for payment of maintenance is proposed to be made or, when his personal attendance is dispensed with, in the presence of his pleader, and shall be recorded in the manner, prescribed for summons cases.
The learned Counsel contended that in view of Sub-section (2) of Section 126 Cr. P.C. it is mandatory that all evidence should be taken in the presence of the person against whom an order for maintenance is proposed to be made, and in the instant case, since the evidence of P. W. 1 is taken in his absence, the entire proceedings-are bad in law.
6. The learned Counsel for the petitioner brought to my notice the decision of the Mysore High Court in Naranappa v. Puttamma 1963 (1) Cri LJ 787 : AIR 1963 Mys 174. In that decision, the Mysore High Court considered the corresponding provisions in Section 488(6) of the Cri. P.C, 1898 and it was laid down that all evidence under the Chapter shall be taken in the presence of the husband or father, as the case may be, or, when his personal attendance is dispensed with, in the presence of his pleader, and shall be recorded in the manner prescribed in the case of summons cases, and that the provisions contained in Sub-section (6) are mandatory and the contravention is not a mere error or irregularity which can be cured under Section 537 of the Code. The learned Judge also referred to the decisions in Anil Ranjan v. Smt. Anuprama Sen 1959 Cri LJ 776 : AIR 1959 Tripura 26 and in Venkatrao v. Rukminibai AIR 1954 Hyd 178 : 1954 Cri LJ 1291 which also took the same view. As against these, the learned Counsel for the respondents cited before me the decision of a Division Bench of the Bombay High Court in Arunkumar Jain v. Chandan Bai Rupchandsa 1980 Cri LJ 601. The Bombay High Court dissented from the view expressed in the above decisions and held that Section 488(6) is not mandatory and the person whose liability to maintain is enforced by resort to Section 488 is not strictly a person accused of a crime and the considerations which apply to the construction of the provisions dealing with the trial of persons accused of crimes are hardly applicable to the interpretation of Section 488. In doing so, the Bombay High Court relied on the decision of the Punjab High Court in Joginder Singh v. Bibi Raj Mohinder Kaur AIR 1960 Punj 249 : 1960 Cri LJ 640. In that decision it was thus held:
Wherein in proceedings under Section 488 the evidence was recorded in the absence of the husband but in the presence of his counsel the mere absence of a formal order dispensing with the personal attendance of the husband is not per se fatal to the validity of the proceedings. In order to attack the validity of such proceedings, it must be shown that the husband has been prejudiced and the taking of evidence in the absence of the husband, but in the presence of his counsel has in fact resulted in some failure of justice.
Section 488(6) Cri. P.C. is not mandatory. The person whose liability to maintain is enforced by resort to Section 488 is not strictly a person accused of a crime and the considerations which apply to the construction of the provisions dealing with the trial of persons accused of crimes are hardly applicable to the interpretation of Section 488.
The use of the word 'shall' does not always necessarily imply mandatory nature of the provisions, in the sense that non-compliance with it must necessarily and by itself be fatal. The context in which the word 'shall' is used and the purpose and object thereof has to be taken into account. An enactment in form mandatory might in substance be directory. The use of the word 'shall' does not conclude the matter. These and other rules are only aids for ascertaining the true intention of the legislature which is the determining factor, and that must ultimately depend on the context.
In the decision in Babu Lal Kurmi Khalasi v. Shanti Bai AIR 1956 Vindh Pra 37 : 1956 Cri LJ 1252, where on the date fixed for final hearing although the husband was absent, the evidence of the witness of the wife was recorded in the presence of the pleader who cross-examined them and there was nothing on the record to indicate that the personal attendance of the husband had been dispensed with by the Magistrate, it was held that by the failure to conform to the provisions of Sub-section (6) of Section 488 no prejudice was caused to the applicant.
7. I am inclined to follow the view taken by the Punjab High Court in the decision in Joginder Singh's case AIR 1960 Punj 249 : (1960 Cri LJ 640) and also the decision of the Bombay Court in Arunkumar Jain's case 1980 Cri LJ 601 and the decision of the Vindhya Pradesh High Court in Babu Lal Kurmi Khalasi's case AIR 1956 Vin Pra 37 : (1956 Cri LJ 1252). In my view the decisions which take the contrary do not lay down the correct position of law.
8. A Full Bench of this Court (to which I was also a party), also had occasion to consider the scope of Section 126(2) in another context in the decision in Balan Nair v. Valsalama 1986 Ker LT 1378 : 1987 Cri LJ 399 (FB). The Full Bench held that the provision in Section 125 is a measure of social legislation and specially enacted to protect women and children. The brooding presence of the constitutional empathy for the weaker sections like women and children must inform interpretation if it has to have social relevance. The Full Bench also held that the relief given in Chapter IX is essentially of a civil nature and the proceedings are essentially civil proceedings and not criminal proceedings. The fact that the provisions occur in the Code of Criminal Procedure and not the Code of Civil Procedure and the fact that the recalcitrant opposite party who suffers the order of maintenance and does not obey the order may have to go to prison, will not change the nature of the proceedings from civil to criminal. In this view, the Full Bench held that service of notice cannot be challenged on the ground that service has not been attempted in terms of the provisions of Part A of the Chapter VI of the Code. This was followed by another Full Bench to which I am a party in the decision in Damodaran v. Chellamma (1987) 1 Ker LT 1.
9. In the instant case no prejudice is shown to have been caused to the petitioner. In fact to substantiate his case, he examined five witnesses and also hotly contested the matter and at no time he and his counsel objected to the taking of evidence of P. W. 1 in the absence of the petitioner. On the date on which the evidence of P.W. 1 was taken, there was an application for exemption from attendance of the petitioner and that petition was allowed and therefore in any view of the matter, since the evidence was taken in the presence of the counsel for the petitioner, there cannot be any illegality.
10. The evidence of P.W. 1 was recorded on 7-5-1983. The following is the diary extract of the learned Magistrate on 7-5-1983:
Petitioner present - C. P. exempted for the day - Petitioner examined as PW1 "and marked Ext. P1 - Petitioner's evidence closed - for CPs evidence to 4-6-1983.
The proceedings of the Court reveal that the presence of the petitioner was exempted on the application filed by the petitioner herein. It is not disputed that evidence was taken in the presence of his pleader. That being the position there is no violation of the provisions contained in Sub-section (2) of Section 126 in any view of the matter and the contention of the learned Counsel for the petitioner is liable to be rejected on that sole ground.
11. The quantum of maintenance awarded to the respondents also cannot be stated to be excessive.
12. The learned Counsel for the petitioner finally argued that in view of the provisions contained in the Muslim Women (Protection of Rights on Divorce) Act, a divorced Muslim Woman is not entitled to maintenance in a petition filed under Section 125 Crl. P.C. I do not express any opinion with regard to the effect of the new Act, on the maintenance already awarded by the trial court. It is open to the petitioner to raise any contention basing on the provisions contained in the Act and if so raised the lower court may consider the contention and pass appropriate orders in accordance with law.
13. Subject to the above observations, the Crl. R.P. is dismissed.