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Judgment
Heard Sri Pradeep Kumar Tiwari, learned counsel for the applicant, Sri Vinay Kumar Tripathi, learned counsel for the opposite party nos. 2 and 3, Sri P.K. Srivastava, learned A.G.A.-I assisted by Mrs. Ladli Pandey, learned A.G.A. and Sri Vijay Mishra, learned Brief holder for the State and perused the records.
The present application u/s 482 Cr.P.C. has been filed with prayer to quash the entire proceedings including the impugned judgement and order dated 10.7.2023 passed by the learned Principal Judge, Family Court, Mathura in Maintenance Case No. 679 of 2018 (Smt. Rakhi and another Vs. Kapil Sirohi) under Section 125 Cr.P.C., Police Station Raya, District Mathura, pending in the court of Principal Judge, Family Court, Mathura, whereby the applicant has been directed to pay interim maintenance of Rs. 5,000/ in favour of opposite party no.2 (wife) and Rs. 3000/- in favour of opposite party no. 3 (son), in pursuance of compromise dated 19.7.2023.
Learned counsel for the applicant submitted, that the order passed by the learned Family Court is illegal, arbitrary and beyond the facts and evidence on record. Learned counsel for the applicant submitted that, the Family Court, while passing the order dated 10.07.2023 did not consider the financial status and the source of income of the applicant, therefore, illegality has been committed by the Family Court. Learned counsel for the applicant submitted that, learned Principal Judge concerned considered the income of the applicant from different sources, whereas financial capacity of the applicant was not to that extent, as has been assessed by the learned Principal Judge concerned and prayed that the said order dated 10.7.2023 is liable to be quashed and set aside.
Per contra, learned counsel appearing for opposite party no. 2 submitted that, the order passed by the learned Family Court is in accordance with law. Learned counsel for opposite party no. 2 submitted that, there is other litigation pending between the parties in as much as, the case under Sections 498-A, 323 I.P.C. etc. was filed against the applicant. Learned counsel for the opposite party no. 2 submitted, that the applicant herein has straightway filed the petition u/s 482 Cr.P.C. and the same is not maintainable, as he has alternative efficacious remedy to file a revision. Learned counsel for the opposite party no. 2 submitted, that applicant is having statutory remedy to file revision under Section 19 of Family Courts Act, 1984(hereinafter referred to as, 'Act, 1984') read with Section 397 of Code of Criminal Procedure, 1973, (hereinafter, referred to as ,Cr.P.C, therefore this application under Section 482 Cr.P.C. is not maintainable.
Learned counsel for opposite party no.2 has raised a legal issue, that as far as exercising jurisdiction u/s 482 Cr.P.C. is concerned, the same, is barred, as an alternative efficacious remedy of revisional jurisdiction is available to the applicant herein. Learned counsel for opposite party no. 2 first of all referred and relied upon the scheme of family court, which reads as under:-
Statutory Scheme Governing Maintenance -The relevant extract of Section 125 of the Code of Criminal Procedure, 1973, relating to maintenance of wives, children and parents, is reproduced hereinbelow:
Section 125 - Order for maintenance of wives, children and parents,
(1)If any person having sufficient means neglects or refuses to maintain.-
(a)his wife, unable to maintain herself, or
(b)his legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or
(c)his legitimate or illegitimate child (not being a married daughter) who has attained majority, where such child is, by reason of any physical or mental abnormality or injury unable to maintain itself, or
(d)his father or mother, unable to maintain himself or herself,
a Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, father or mother, at such monthly rate as such magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to time direct:
Provided that the Magistrate may order the father of a minor female child referred to in clause (b) to make such allowance, until she attains her majority, if the Magistrate is satisfied that the husband of such minor female child, if married, is not possessed of sufficient means.
Provided further that the Magistrate may, during the pendency of the proceeding regarding monthly allowance for the maintenance under this sub-section, order such person to make a monthly allowance for the interim maintenance of his wife or such child, father or mother, and the expenses of such proceeding which the Magistrate considers reasonable, and to pay the same to such person as the Magistrate may from time to time direct:
Provided also that an application for the monthly allowance for the interim maintenance and expenses of proceeding under the second proviso shall, as far as possible, be disposed of within sixty days from the date of the service of notice of the application to such person.
Explanation.-For the purposes of this Chapter.-
(a)"minor" means a person who, under the provisions of the Indian Majority Act, 1875 (9 of 1875) is deemed not to have attained his majority;
(b)"wife" includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried.
(2)Any such allowance for the maintenance or interim maintenance and expenses of proceeding shall be payable from the date of the order, or, if so ordered, from the date of the application for maintenance or interim maintenance and expenses of proceeding, as the case may be.";]
(3)If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in the manner provided for levying fines, and may sentence such person, for the whole, or any port of each month's 4[allowance for the maintenance or the interim maintenance and expenses of proceeding , as the case may be] remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made:
Provided that no warrant shall be issued for the recovery of any amount due under this section unless application be made to the Court to levy such amount within a period of one year from the date on which it became due:
Provided further that if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if he is satisfied that there is just ground for so doing.
Explanation.-If a husband has contracted marriage with another woman or keeps a mistress, it shall be considered to be just ground for his wife's refusal to live with him.
(4)No wife shall be entitled to receive an allowance for the maintenance or the interim maintenance and expenses of proceeding , as the case may be from her husband under this section if she is living in adultery, or if, without any sufficient reason, she refuses to live with her, husband, or if they are living separately by mutual consent.
(5)On proof that any wife in whose favour an order has been made under this section is living in adultery, or that without sufficient reason she refuses to live with her husband, or that they are living separately by mutual consent, the Magistrate shall cancel the order.
126 Procedure.
(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.
(2)All evidence to 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 :Provided that if the Magistrate is satisfied that the person against whom an order for payment of maintenance is proposed to be made is willfully avoiding service, or willfully neglecting to attend the Court, the Magistrate may proceed to hear and determine the case ex parte and any order so made may be set aside for good cause shown on an application made within three months from the date thereof subject to such terms including terms as to payment of costs to the opposite party as the Magistrate may think just and proper.
(3)The Court in dealing with applications under section 125 shall have power to make such order as to costs as may be just.
127. Alteration in allowance.
(1)On proof of a change in the circumstances of any person, receiving under section 125 a monthly allowance, for the maintenance or interim maintenance, or ordered under the same section to pay a monthly allowance for the maintenance, or interim maintenance, to his wife, child, father or mother, as the case may be, the Magistrate may make such alteration, as he thinks fit, in the allowance for the maintenance or the interim maintenance, as the case may be.
(2)Where it appears to the Magistrate that in consequence of any decision of a competent Civil Court, any order made under section 125 should be cancelled or varied, he shall cancel the order or, as the case may be, vary the same accordingly.
(3)Where any order has been made under section 125 in favour of a woman who has been divorced by, or has obtained a divorce from her husband, the Magistrate shall, if he is satisfied that -
(a)the woman has, after the date of such divorce, re-married, cancel such order as from the date of her re-marriage;
(b)the woman has been divorced by her husband and that she has received, whether before or after the date of the said order, the whole of the sum which, under any customary or personal law applicable to the parties, was payable on such divorce, cancel such order -
(i)in the case where such sum was paid before such order, from the date on which such order was made;
(ii)in any other case, from the date of expiry of the period, if any, for which maintenance has been actually paid by the husband to the woman;
(c)the woman has obtained a divorce from her husband and that she had voluntarily surrendered her rights to [maintenance or interim maintenance as the case may be, after her divorce, cancel the order from the date thereof.
(4)At the time of making any decree for the recovery of any maintenance or dowry by any person, to whom a [monthly allowance for the maintenance and interim maintenance or any of them has been ordered] [Substituted by Act 50 of 2001, Section 3 (w.e.f. 24-9-2001).] to be paid under Section 125, the Civil Court shall take into account the sum which has been paid to, or recovered by such person as monthly allowance for the maintenance and interim maintenance or any of them, as the case may be, in pursuance of the said order.
The relevant provisions of Section 397 of the Code of Criminal Procedure, 1973, relating to the revisional jurisdiction of the High Court and the Sessions Court, are reproduced hereinbelow:
397. Calling for records to exercise powers of revision.
(1)The High Court or any Sessions Judge may call for and examine the record of any proceeding before any inferior Criminal Court situate within its or his local jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed, and as to the regularity of any proceedings of such inferior Court, and may, when calling for such record, direct that the execution of any sentence or order be suspended, and if the accused is in confinement, that he be released on bail or on his own bond pending the examination of the record. Explanation. -All Magistrates, whether Executive or Judicial, and whether exercising original or appellate jurisdiction, shall be deemed to be inferior to the Sessions Judge for the purposes of this sub-section and of Section 398.
(2)The powers of revision conferred by sub-section (1) shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceeding.
(3)If an application under this section has been made by any person either to the High Court or to the Sessions Judge, no further application by the same person shall be entertained by the other of them.
The relevant provisions of Section 19 of the Family Courts Act, 1984, relating to appellate and revisional remedies, are reproduced hereinbelow:
Section 19 of the Family Courts Act ,1984, which is as follows:-
(1)Save as provided in sub-section (2) and notwithstanding anything contained in the code 1908 (5 of 1908) or in the Code of criminal procedure, 1973 (2 of 1974) or in any other law, an appeal shall lie from every judgment or order, not being an interlocutory order, of a Family Court to the High Court both on facts and on law.
(2)No appeal shall lie from a decree or order passed by the Family Court with the consent of the parties or from an order passed under Chapter IX of the Code of criminal procedure, 1973 (2 of 1974):Provided that nothing in this sub-section shall apply to any appeal pending before a High Court or any order passed under Chapter IX of the Code of criminal procedure 1973 (2 of 1974) before the commencement of the The Family Courts (Amendment) Act, 1991 (59 of 1991).
(3)Every appeal under this section shall be preferred within a period of thirty days from the date of the judgment or order of a Family Court.
(4)The High Court may, of its own motion or otherwise, call for and examine the record of any proceeding in which the Family Court situate within its jurisdiction passed an order under Chapter IX of the Code of criminal procedure, 1973 (2 of 1974) for the purpose of satisfying itself as to the correctness, legality or propriety of the order, not being an interlocutory order, and, as to the regularity of such proceeding.
(5)Except as aforesaid, no appeal or revision shall lie to any court from any judgment, order or decree of a Family Court.
(6)An appeal preferred under sub-section (1) shall be heard by a Bench consisting of two or more Judges.
The non-maintainability and restricted scope of petitions under Section 482 of the Code of Criminal Procedure, 1973 (Cr.P.C.) challenging maintenance orders passed under Section 125-128 Cr.P.C. / Family Courts Act, 1984 is well-settled by the Hon'ble Supreme Court and various High Courts related to chapter IX of the Cr.P.C., along with Section 19(4) of the Family Courts Act, 1984.
Under the doctrine of generalia specialibus non derogant, special statutory revision pathways override general inherent powers. Furthermore, Section 482 Cr.P.C. cannot be utilized as a "second revision in disguise" to bypass statutory bars like Section 397(3) Cr.P.C., nor can the High Court enter into mini-trials or re-appraise factual evidence regarding income and desertion in summary maintenance proceedings. Even in cases where a petition under Section 482 Cr.P.C. is mistakenly filed, settled judicial precedent mandates converting such petitions into statutory revisions rather than routinely exercising inherent jurisdiction.
In this regard learned counsel for opposite party no. 2 placed reliance upon catena of judgments .The exact paragraph-wise ratio decidendi and dictas of the Hon'ble Supreme Court and various High Courts governing this issue are set out below:
(i) Madhu Limaye v. State of Maharashtra : (1977) 4 SCC 551
Paragraph 8 of the judgmnet is reproduced as under :-
"9.At the outset the following principles may be noticed in relation to the exercise of the inherent power of the High Court which have been" followed ordinarily and generally, almost invariably, barring a few exceptions:
(1)That the power is not to be resorted to if there is a specific provision in the Code for the redress of the grievance of the aggrieved party ;
(2)That it should be exercised very sparingly to prevent abuse of process of any Court or otherwise to secure the ends of justice;
(3)That it should not be exercised as against the express bar of law engrafted in any other provision of the Code."
(ii). Rajan Kumar Machananda v. State of Karnataka :1990 Supp(1) SCC 132, Paragraph 2 of the judgmnet is reproduced as under :-
" The question for consideration is as to whether the bar under Section 397(3) Cr.P.C. should have been taken note of to reject the revision at the instance of the State Government or action taken by the High Court in exercise of its inherent power has to be sustained. It is not disputed by counsel appearing for the State that the move before the High Court was really on application for revision of the order of the Magistrate releasing the truck. That is exactly what is prohibited under Section 397(3) Cr.P.C. Merely by saying that the jurisdiction of the High Court for exercise of its inherent power was being invoked the statutory bar could not have been overcome. If that was to be permitted every revision application facing the bar of Section 397(3) of the Code could be labelled as one under Section 482. We are satisfied that this is a case where the High Court had no jurisdiction to entertain the revision."
(iii) Dharampal v. Ramshri :(1993) 1 SCC 435, Paragraph 4 of the judgmnet is reproduced as under :-
"It is now well-settled that the inherent powers under Section 482 of the Code cannot be utilised for exercising powers which are expressly barred by the Code. Hence the High Court had clearly erred in entertaining the second revision at the instance of 1st respondent. On this short ground itself, the impugned order of the High Court can be set aside."
(iv) Krishnan & Anr. v. Krishnaveni & Ors. : (1997) 4 SCC 241 , Paragraph 10 of the judgmnet is reproduced as under :-
"Ordinarily, when revision has been barred by Section 397(3) of the Code, a person accused/complainant - cannot be allowed to take recourse to the revision to the High Court under Section 397 (1) or under inherent power of the High Court under Section 482 of the Code since it may amount to circumvention of the provisions of Section 397 (3) or section 397(2) of the Code."
(v). Sanjeev Kapoor v. Chandana Kapoor (2020) 13 SCC 172, Paragraph 32 of the judgmnet is reproduced as under :-
"The High Court did not commit an error in rejecting the application filed by appellant under Section 482 Cr.P.C. The inherent powers of the High Court given under Section 482 Cr.P.C. are to be exercised to secure the ends of justice. The Family Court in passing order dated 05.01.2019 has done substantial justice in reviving the maintenance application of the wife which need no interference by the High Court in exercise of its jurisdiction under Section 482 Cr.P.C."
(vi). Akanksha Arora v. Tanay Maben : 2024 INSC 962 ; In SLP (CRL.) NO(S). 15909 of 2023), Paragraph 7 and 10 of the judgmnet
are reproduced as under :-
"This Court has, in a catena of decisions, provided that nomenclature of a petition is immaterial and for doing substantive justice, the High Court can always convert a petition under Section 482 CrPC to a revision under Section 397 CrPC and vice versa. The approach of the High Court in dismissing the petition filed by the appellant under Section 482 CrPC on the hyper technical ground that she had to avail the remedy of revision cannot be appreciated..." "The judicious approach would have been to convert the petition under Section 482 CrPC into a revision under Section 397 CrPC.
(vii) Ashu Jain v. State of U.P. In Application U/S 482 No. - 15078 of 2023; Allahabad High Court, Paragraph 18 & 19 of the judgmnet are
reprodauced as under :-
"order of maintenance affects right of a person drastically and substantially, hence, it cannot be treated as interlocutory order and criminal revision should be preferred under Section 19(4) of the Family Courts Act against the order passed on the application for interim maintenance by the Family Court." .. application under Section 482 Cr.P.C. is not maintainable."
(viii) Nitish Kumar v. Neha Kumari: In Cr. MMO No.1083 of 2022; Himachal Pradesh High Court, Paragraph 13 of the judgmnet is
reproduced as under :-
"Therefore, it is apparent that the Court cannot exercise power under Section 482 of Cr.P.C. when an alternative remedy is available. Since an alternative remedy under Section 19(4) of the Family Courts Act is available; therefore, the petition under Section 482 of Cr.P.C. will not lie before this Court."
Learned counsel appearing for opposite party no. 2 submits that there is an efficacious alternate available remedy being exercised by the parties. The parties by their choice, sometimes, invoke revisional jurisdiction of this Court and sometimes extraordinary jurisdiction and therefore, judicial discipline and appropriateness is required to be maintained, not only by the aggrieved party, but every litigant approaching this Court. Learned counsel for the opposite party no. 2 submitted that there is clear cut differentiation and classification inasmuch as, the entire proceedings are concerned and the effect of a single order is concerned.
Meaning and scope of quashing the entire proceedings and single order, when quashed, renders the entire proceedings into nullity. Learned counsel for opposite party no. 2 submitted that, if a single order is quashed and set aside, the same renders the entire proceedings in nullity or by setting aside the single order, the entire proceedings also comes to an end. Say for example, if an order passed under Section 125 Cr.P.C. granting maintenance to any party is finally set aside by this Court, in that event, the entire proceedings arising out of the said case thereof, also comes to an end, whereas in case of offence pertaining to Indian Penal Code/ BNS, the law comes into motion, when tehrir is submitted to police station and the same is converted into case crime/FIR, thereafter, the investigation is conducted and while conducting the investigation, the concerned Investigation officer shall submit police report, either a final report is submitted having found no evidence against the accused persons or a chargesheet is filed. Upon filing the chargesheet, the competent court shall proceed to conduct an inquiry and frame charge against the accused persons. When charge is framed, the case is proceeded to conduct trial in the matter and during the course of trial, the witnesses are being examined or cross examined. After completion of evidence, there may also be possibility, that any party may file appropriate application under Section 311 Cr.P.C/ 348 BNSS and 319 Cr.P.C./358 BNSS as the case may be. Thereafter, the statements of accused persons are recorded under Section 313 Cr.P.C./ 351 ,BNSS and the accused persons may also adduce defence evidence, if so advised. Hence, from lodging of FIR, till recording of defence evidence by the accused persons, a number of steps and events take place. Therefore, if an application under Section 482 Cr.P.C./528 BNSS is moved before this Court, then the entire proceedings may contain the bringing of criminal law into motion i.e. lodging of FIR and subsequent steps; such as filing police report, framing of charge, adducing of evidence or disposal of any other application moved during the course of trial and recording of statement under Section 313 Cr.P.C. Hence, if an application under Section 482 Cr.P.C./528 BNSS, involving sections under I.P.C./B.N.S. is filed against a single order, that may not lead to quashing of entire criminal proceedings arising out of said FIR. But in a case, where a final order has been passed under Section 125 Cr.P.C./ 144 BNSS, in that case, if such an order is quashed and set aside, then the entire proceedings come to an end. Therefore, there is large differentiation and variation, as far as, offences under Indian Penal Code and BNSS are concerned and granting of maintenance under Chapter IX Cr.P.C. are concerned. Section 125 Cr.P.C. or consequences, such as setting aside the ex-pare decree, enhancement of maintenance allowance under Section 127 Cr.P.C./ 146 BNSS and execution of maintenance decree under Section 128 Cr.P.C./ 147 BNSS. All the sections under Chapter-IX Cr.P.C. have a definite procedure and the nature of relief being sought by the aggrieved persons. Therefore, the procedural law as evolved under Chapter-IX Cr.P.C. cannot be equated with the same degree and effect, with offences under IPC/BNS, as the offences under Indian Penal Code have a very wide connotation and consequence and the entire criminal law devolves under Indian Penal Code/ BNS, therefore, a clear cut line has to be drawn in respect of of offences covered under Indian Penal Code/BNS and the proceedings under Sections 125 Cr.P.C./ 144 BNSS, 126 Cr.P.C./ 145 BNSS, 127 Cr.P.C./ 146 BNSS and 128 Cr.P.C./ 147 BNSS, covered under Chapter IX of Cr.P.C./BNSS.
Another aspect that deals with the situation is that, once an order is passed by a competent court of law, it is not only desired, but expected that judicial discipline be maintained as far as possible by passing any order on the subject in the cases of maintenance i.e. Chapter -IX of Cr.P.C. from the Section 125 Cr.P.C./ 144 BNSS to 128 Cr.P.C./ 147 BNSS. The revisional jurisdiction has been provided against any order passed under Sections 125, 126, 127, 128 Cr.P.C./ BNSS. But sometime, it is seen that the aggrieved party in first instance avails revisional jurisdiction before this Court and thereafter a remedy under Section 482 Cr.P.C./528 BNSS is preferred as and when a recovery warrant is issued by the competent family court, whereas, there is no bar that remedy under Section 482 Cr.P.C./ 528 BNSS cannot be exercised, but once an order is passed by learned Family Court and has been affirmed by this Court, the same cannot be challenged time and again in the garb of challenging the entire proceedings, but for the reason that, once the order, which has been challenged in revisional jurisdiction and has been adjudicated upon on merit, the same cannot be re-challenged by going through another remedy under Section 482 Cr.P.C./ 528 BNSS. Therefore, once the order challenged before this Court in revisional jurisdiction becomes final, thus, the same cannot be challenged in another jurisdiction under Section 482 Cr.P.C./ 528 BNSS, just in the garb of challenging the entire proceedings, therefore, the pretext of challenging the same order through Section 482 Cr.P.C./528 BNSS indirectly is not permissible, as Single Bench of this Court has once decided the issue or upheld/ set aside the order passed by learned Family Court, the same cannot be reopened in another proceedings initiated under Section 482 Cr.P.C./ 528 BNSS.
Under the circumstances, as held by the Hon'ble Supreme Court and various High Courts, the appropriate remedy is available to the litigants challenging the order passed under Sections 125, 126, 127 & 128 Cr.P.C./ 144, 145, 146 &147 BNSS, by way of a revisional jurisdiction before this Court in the first instance and not under Section 482 Cr.P.C./528 BNSS, as the law relied upon by the learned counsel for the applicant, and to say that as far as the case of Prabhu Chawla vs State Of Rajasthan & Anr on 5 September, 2016 :2016 (16) SCC 30, is concerned, the Hon'ble Supreme Court has already held that, there is no bar of invoking jurisdiction under Section 482 Cr.P.C./ 528 BNSS, but the issue of entire proceedings viz-viz upholding or setting aside single order in revisional jurisdiction being exercised under Sections 125, 126, 127, 128 Cr.P.C./ 144, 145, 146 &147 BNSS was not taken into consideration and the case of Prabhu Chawla (Supra) was confined to the offences made under Indian Penal Code only. Hence by having a Conjoint reading of Section 19 of Family Court Act and Section 397 Cr.P.C., a clear cut distinction can be made with respect to maintenance cases filed under Chapter IX Cr.P.C./BNSS and the offences covered under IPC. Therefore, cases falling under Chapter IX of Cr.P.C./ X of BNSS and the order passed thereunder, can be challenged in revisional jurisdiction and not by invoking the power enshrined under Section 482 Cr.P.C./528 BNSS.
Hence, it is directed that, as far as, Chapter IX of Cr.P.C./ X of BNSS is concerned, the appropriate legal remedy lies, by invoking the revisional jurisdiction and not permissible under Section 482 Cr.P.C./ 528 BNSS.
Under the circumstances, it is held that appropriate remedy for seeking challenge to any order passed under Sections 125, 126, 127 and 128 Cr.P.C. is the revisional jurisdiction.
The present application preferred under Section 482 Cr.P.C. is dismissed being not maintainable, however, liberty is given to the applicant to seek appropriate legal remedy of revision, if so advised.