Smt. Suman Devi vs State Of U.P. And Others
2014 Latest Caselaw 1683 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Court No. - 46
 

 
Case :- CRIMINAL REVISION No. - 2807 of 2007
 

 
Revisionist :- Smt. Suman Devi
 
Opposite Party :- State Of U.P. And Others
 
Counsel for Revisionist :- T.K. Misrha
 
Counsel for Opposite Party :- Govt. Advocate,A.K.Tiwari,Mohd. Khalil
 

 
Hon'ble Kalimullah Khan,J.

Heard learned counsel for the revisionist Smt. Suman Devi and learned counsel for the opposite party no.-2 Rakesh Kumar as well as learned A.G.A. and perused the record.

This criminal revision under Sections 397/401 Cr.P.C. has been directed against the impugned orders dated 1.6.2007 and 18.8.2007 passed by Principal Judge Family Court, Meerut in case no. 496 of 2005 (Smt. Suman Devi vs. Rakesh Kumar) under Section 125 Cr.P.C., P.S.- Civil Lines, District- Meerut challenging their correctness, legality and propriety.

Counter and rejoinder affidavit have been exchanged.

From the perusal of the record, it transpires that case no. 496 of 2005 was pending before Principal Judge, Family Court, Meerut. The aforesaid case was filed by Smt Suman Devi against her husband Rakesh Kumar for maintenance under Section 125 Cr.P.C.

During the proceeding of the case on dated 1.6.2007, she did not appear before the court as a result of which her case under Section 125 Cr.P.C. was dismissed in default vide order dated 1.6.2007 passed by the aforesaid Principal Judge Family Court, Meerut which reads as under:-

"1.6.07

Case called out. The o.p. is present. The applicant is not turned up inspite of repeated calls. Besides this it is also reported that they are living together. In these circumstances the application is rejected and case is dismissed in default of the applicant.

Sd/-

1.6.07"

The perusal of the certified copy of the ordersheet dated 1.6.2007, reveals that learned trial court has again passed another order which reads as under:-

Þckngw ikfjr gksus vkns'k izkFkZuki= 24&c izkfFkZuh dh vksj ls vkt dh gkftjh ekQh is'k gksdj vkns'k gqvk fd & It is of no use. Rejected accordingly.

Sd/-

iz/kku U;k;k/kh'k

ifjokj U;k;ky;] esjBß

Thereafter, Smt Suman Devi revisionist made an application to set aside the order dated 1.6.2007 on the ground that on the aforesaid date i.e. 1.6.2007 she had gone to Goddess Shakumbhari Devi, Saharanpur and could not appear before the court. The application was supported with an affidavit.

Opposite party no.-2, Rakesh Kumar her husband filed objection 8-B wherein he pleaded that she had not gone to Goddess Shakumbhari Devi, Saharanpur on 1.6.2007 rather she was living at his house no. 4/9, Tehsil Compound, Meerut City. On account of her absence in the court, her case was rightly dismissed in default. Apart from it, he apprised the Court through his objection that a compromise had already been entered into in between him and his wife in case no. 1949 of 2007 Protection of Woman from Domestic Violence Act, 2005 and also in case no. 496 of 2005 under Section 125 Cr.P.C. (supra).

Learned trial court after hearing the learned counsel for the parties, dismissed in default the application, vide order dated 18.8.2007, made by the revisionist Smt. Suman Devi on following two grounds:-

1- That none has appeared for her in the court on 1.6.2007; and

2- That she was living with her husband Rakesh Kumar opposite party no.-2.

The correctness, legality and propriety of the aforesaid orders dated 01.6.2007 and 18.8.2007 have been challenged in this criminal revision.

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.

Court should be liberal in the matter of recall of ex-parte order especially when prompt recall application is made supported by affidavit.

Any compromise deed entered into in between the parties cannot give any legal effect to unless i.e. verified and accepted or admitted by the adverse party. Compromise agreement unless verified and accepted carries no legal sanctity.

Indisputably, the case of the revisionist under Section 125 Cr.P.C. was dismissed in default. The second fact disclosed by her husband opposite party no.-2 in his objection 8-B is a question of fact as to whether or not on the date of her absence i.e. on 1.6.2007 she was living with her husband at his house and he was providing maintenance to her. Simply because objection was raised wherein the husband pleaded that his wife/ applicant/ revisionist was living with him should not have been treated by learned trial court a gospel truth. It is a factual matter and evidence to prove the said fact is needed. Learned trial court was supposed to direct the husband to bring and produce his wife on some subsequent date if at all she was living with him or to substantiate that fact by evidence, if any.

Moreover, the endeavour of the court in all matters civil or criminal and specially in matrimonial matters including proceedings under Section 125 Cr.P.C. which is an outcome of a benevolent legislation should be to finally resolve the lis in between the parties on merit or on the basis of proved compromise deed.

It is appropriate to mention here that during the course of his arguments here before this Court ultimately, learned counsel for the respondent no.2, Rakesh Kumar has conceded that the so called compromise referred to above have turned futile and it has been resolved that possibility of amicable settlement of the disputes in between the parties is remote and none of the aforesaid proceeding under Protection of Woman from Domestic Violence Act, 2005 and under Section 125 Cr.P.C. could be compromised so far.

Therefore, once the re-call application of order dated 1.6.2007 was made by revisionist explaining the cause of her absence then her application should have been allowed in accordance with the provision contained under Section 126 (3) Cr.P.C. on payment of some cost which in the opinion of the court appear to be just and reasonable.

Impugned orders dated 01.6.2007 and 18.8.2007 lack propriety hence set aside and in the result the criminal revision is allowed at the admission stage itself.

Learned trial court is directed to restore the case no. 496 of 2005 to its original number and decide the case on merit in accordance with the procedure established by law.

Parties are directed to appear before the Principal Judge Family Court, Meerut on 9th July, 2014.

Order Date :- 13.5.2014

Atmesh