The Supreme Court in the case of Sanjeev Kapoor v. Chandana Kapoor and Ors., comprising of Justice Ashok Bhushan held that the Magistrate can cancel or alter his order under Section- 125 C.r.P.C.
Facts-
The Respondent and the Appellant married each other on 04.11.1998. A son and a daughter were born to them. The wife filed an application under Section- 125 C.r.P.C., 1973 for maintenance of minor daughter and son.
The Appellant filed a divorce petition, but the Family Court solved their issues and the Appellant was asked to pay 25,000/- per month for the maintenance from July 2015 up to April 2017. Before 10th May of every month, the Appellant was directed to transfer the money in the account of the Respondent and the arrears should be paid within six months. Both parties can file a divorce petition by mutual consent and the Court dismissed the maintenance petition in its order dated 06.05.2017.
The maintenance was only paid for four months that is 1,00,000/-.due to this the Respondent filed an application under Section 125 C.r.P.C. The Additional Principal Judge rejected this application as the parties were supposed to fulfill the obligations as per the earlier order.
After the Execution petition was rejected then the Respondent filed another application on the ground that the Appellant had failed to pay the arrears and had only given 75,000/- as the maintenance amount.
Arguments And Submissions On Behalf Of The Appellant-
It was argued by the Appellant had made the payment of some amount as per the order, but since the Respondent backed off, the maintenance amount was stopped.
The Appellant filed an application under Section- 482 C.r.P.C. in the High Court as was not satisfied with the judgment of the Family Court. However, the High Court also rejected the application which forced the Appellant to make an appeal.
The Learned Advocate, Shri Subodh Markandeya, argued that the application under Section- 125 C.r.P.C. was decided by the District Judge of the Family Court and so the court cannot set aside the order.
Section- 362- C.r.P.C., 1973 states that the Court cannot alter any judgment, but can only rectify a clerical or arithmetical error This means the Order dated 05.01.2019 is void in nature as per the provisions of this section.
Arguments And Submissions On Behalf Of The Respondent-
The counsel of the Respondent agrees that the judgment of the High Court was impugned. It has been contended by the Respondent that whether the application under 125 C.r.P.C. is contrary to the provisions of Section – 362 C.r.P.C.
The Counsel is of the view that inherent powers cannot be exercised to do what the Code specifically prohibits the Court from doing something relevant and necessary.
In the case of Mostt. Simrikhia v. Smt. Dolley Mukherjee and another, AIR 1990 SC 1605: 1990(2) R.C.R. ( Criminal ) 337, the inherent powers have the origin in the principles that have been framed and the Court cannot evolve new provisions as it will destroy the intent of the said provision. the basic element cannot be altered.
Judgment-
The Court opined that the Justice Delivery System does not allow the Court to alter the Order of any Court. Only the clerical mistakes can be altered. The Legislative Scheme is related to society as a whole. Section -125 C.r.P.C. is social justice legislation that is concerned with the maintenance of wives, children, and parents.
The Judiciary is that thread that binds the people with the society and so it’s decisions shall always be for the public good or greater good of the society. Social Context Judging is the hallmark of the justice delivery system that will always be in accordance with the expectations. desires and interests of the society following the principles of the Rule of Law.
The Judge has to maintain a balance for fair play in the interest of equity, good conscience.
Section 125- C.r.P.C. states that-
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, the Magistrate has the power to look into such issues and provide an adequate monthly allowance to the needy.
The Court said that it is not satisfied that the Family Court was not entitled to set aside and cancel its an order dated 06.05.2017 in view of the arguments and facts stated by the Appellant.
The Oder of the Family Court dated 06.05.2017 states that the Respondent shall pay 25,000/- to the Appellant and if he fails to do so the Petitioner is free to approach the Court and so the petition is disposed of.
Also, the Appellant has only paid one lakh rupees and the arrears from July 2015 to April 2017 are not paid. Thus, the Oder passed by the Family Court reviving the maintenance application of the wife under Section- 125 C.r.P.C., by setting aside the order dated 06.05.2017 is not contrary to Section 482 C.r.P.C. The contention of the Appellant that the Magistrate is prohibited to pass the order is not acceptable.
No error was committed by the High Court in rejecting the application filed under Section – 482 C.r.P.C., 1973. The provisions under Section 482 are to be duly followed by the High Court for the principle of Justice and the public good.
The Family Court has ensured justice for accepting the appeal under Section – 125 C.r.P.C., 1973 and it needs no interference by the High Court under Section 482- C.r.P.C.
For the above reasons, the appeal is dismissed.
