Tariq Mehmood Bhat vs Zubaida Akhtar And Another
2021 Latest Caselaw 1005 j&K

     HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                     AT JAMMU

                                             Reserved on    11.08.2021
                                             Pronounced on: 02.09.2021

                                             CRM(M) No. 139/2020
                                             CrlM No. 351/2020



Tariq Mehmood Bhat                                .....Appellant(s)/Petitioner(s)


                     Through: Mr. C. M. Koul, Sr. Advocate with
                              Mr. A. R. Bhat, Advocate
                Vs
Zubaida Akhtar and another                                   ..... Respondent(s)


                     Through: Mr. R. K. S. Thakur, Advocate


Coram: HON'BLE MR. JUSTICE RAJNESH OSWAL, JUDGE

                                JUDGMENT

1. The present petition has been filed by the petitioner under section

482 Cr.P.C. for setting aside the order dated 07.02.2020 passed by

the 1st Additional District Judge, Jammu (hereinafter to be referred as

the revisional court) pursuant to which the revision petition filed by

the respondents against the order passed by the JMIC (Sub Judge)

Jammu dated 18.10.2019 (hereinafter to be referred as the trial court)

was allowed.

2. It is stated that the respondents filed an application under section 488

Cr.P.C. before the learned trial court and the petitioner and the

respondents entered into a compromise with the respondents and

agreed to pay an amount of Rs. 15000/- per month to the

respondents. The statement of the petitioner was recorded in support

of the same and the learned trial court vide order dated 22.01.2018

disposed of the said application permitting the petitioner to pay a

sum of Rs. 15,000/- per month to the respondents.

3. It is further stated that thereafter the petitioner filed an application

before the learned trial court for withdrawal/retraction of the consent

accorded by the petitioner on the ground that father of the petitioner

had passed away on 27.12.2017 and the petitioner was shattered and

in distressed state of mind and the petitioner consented to pay Rs.

15,000/- per month to the respondents as maintenance in that

distressed state of mind. The trial court vide order dated 18.10.2019

allowed the said application.

4. The respondents assailed the said order in the revisional court and the

revisional court vide order dated 07.02.2020 allowed the revision

petition filed by the respondents and set aside the order dated

18.10.2019 passed by the learned trial court.

5. The petitioner has raised the following questions in the present

petition:

i. Whether the proceedings under section 488 CrPC are entirely civil proceedings?

ii. Whether an application in terms of section 151 of Civil Procedure Code to retract/recall the consent provided earlier in order to arrive at a compromise when such consent was the outcome of the disturbed/perturbed mind?

iii. Whether the maintenance in terms of section 488 CrPC can be granted to a child who had already attained the age of majority

particularly in the face of requirement of law i.e. section 488 clause 1(c)."

6. Mr. C. M . Koul, learned senior counsel appearing for the petitioner

has vehemently argued that the findings returned by the revisional

court are not tenable in the instant case as the proceedings under

section 488 CrPC are not essentially criminal proceedings in nature

and further that the revisional court has wrongly come to the

conclusion that the reasons given by the learned trial court in

justifying his view of treating the proceedings as civil proceedings

are not valid and are not in consonance with the object of the

provisions of section 488 Cr.P.C. Mr. Koul further argued that the

learned revisional court has virtually granted the maintenance to the

son who is major and is not entitled to maintenance. Mr. Koul has

further vehemently argued that the revisional court has not decided

the issue whether the proceedings under section 488 Cr.P.C. are civil

in nature or not but has proceeded to set aside the order on the

premise that section 488 Cr.P.C. is a social welfare legislation meant

for the welfare of the children, wife and the parents so it is required

to be interpreted in that manner.

7. Per contra, Mr. R. K. S. Thakur, learned counsel for the respondents

has vehemently argued that once the petitioner has entered into a

compromise subsequently he cannot turn around and say that he was

in extreme distress and that is why he entered into a compromise.

Mr. Thakur further submits that the major son who is unable to

maintain himself is also entitled to maintenance.

8. Heard and perused the record.

9. From the record, it is evident that the petitioner had agreed to pay Rs.

15,000/- per month as maintenance to the respondents.

10. Now, the following issue arises for consideration:

Whether the order passed under section 488 Cr.P.C. on the basis of a compromise can be recalled at the instance of the party and if so, under what circumstances the same can be recalled?

11. The Hon'ble Apex Court in Sanjeev Kapoor Vs Chandana

Kapoor, 2020(13) SCC 172 examined as to whether embargo

contained in section 362 Cr.P.C. prohibiting the court to alter or

review its judgment or final order disposing of the case is applicable

to an order of maintenance passed under section 125 Cr.P.C. or not

and the Hon'ble Apex Court observed that embargo as contained in

362 Cr.P.C. is clearly relaxed in the proceedings so far as

proceedings under section 125 Cr.P.C. are concerned. Section 362

Cr.P.C. corresponds to section 369 Cr.P.C. as was applicable in the

erstwhile State of Jammu and Kashmir. It reads as under:

362. Court not to alter judgment

Save as otherwise provided by this Code or by any other law for the time being in force or in the case of High Court, by the Constitution of High Court, no court, when it has signed its judgment, shall alter or review the same except to correct the clerical error.

12. There is a distinction between 362 of the Central Cr.P.C. and 369 of

the Cr.P.C. Section 362 provides for that no judgment or final order

disposing of the case can be altered or reviewed except to correct

clerical or arithmetic error whereas under section 369 Cr.P.C., the

only reference has been made to alteration or review of judgment and

no reference has been made to the order disposing of the case finally.

The Hon'ble Apex Court in Sanjeev Kapoor's case (supra) has held

that the bar contained in section 362 is not applicable to the

proceedings under section 125 Cr.P.C. On the same analogy, the bar

contained in section 369 Cr.P.C. shall not be applicable in the

proceedings under section 488 Cr.P.C.

13. In Sanjeev Kapoor's case (supra), the parties had entered into a

settlement before a family court in which the husband agreed to pay

maintenance to his wife and children and as the husband did not

comply with the said terms and conditions of settlement with regard

to payment, the wife filed an application for recalling of that order

on the ground that her husband has not complied with the order and

the family court recalled the order, that order was impugned by the

husband unsuccessfully before the High Court and thereafter before

the Supreme Court Hon'ble Apex Court. The Hon'ble Apex Court in

para 30 has observed as under:

"30. It has come on the record that after passing of the above order on settlement, the appellant according to his own case has paid only an amount of one lakh rupees i.e. maintenance of four months after May 2017. The arrears from July 2015 to April 2017 has not been paid by the appellant within six months which was the time allowed by the court. When the appellant did not honour its commitment under settlement, can the wife be left in the lurch by not being able to press for grant

of maintenance on non-compliance by the appellant of the terms of settlement. The answer is obviously "No". Section 125 CrPC has to be interpreted in a manner as to advance justice and to protect a woman for whose benefit the provisions have been engrafted."

14. Now it is to be seen whether the petitioner has succeeded in carving

out a good ground for recalling the order or not. The only ground that

has been raised by the petitioner that due to demise of his father he

was in great distress and due to that reason he entered into a

settlement. This Court is of the view that it was not the case of the

petitioner that he suffered from any mental disorder or infirmity that

incapacitated him from thinking rationally. Rather the petitioner

agreed to pay maintenance to his wife and child by paying an amount

of Rs. 15,000/- per month as maintenance and it cannot be said that

because of his grief, the petitioner has not acted rationally and in fact

he has acted like a responsible father and husband as the case may be

by agreeing to pay the maintenance to his wife and child. In

judgment mentioned above, the Hon'ble Apex Court has observed

that the provisions of section 125(488) CrPC are to be interpreted

into a manner so as to advance justice and protect the woman for

whose benefit the provisions have been enacted and the learned

revisonal court has rightly come to the conclusion that the provisions

under section 488 CrPC are for the benefit of parents, wife and

children and they are required to be interpreted the manner that serve

the purpose and not defeat the purpose for which they have been

incorporated.

15. The last contention that has been raised by Mr. Koul is that the

petitioner has been forced to pay maintenance to major son. Needless

to say, that the petitioner can approach the trial court for alteration of

the order under section 489 Cr.PC. so as to demonstrate that the

major son is capable to maintain himself. There is nothing on record

to show that the major son of the petitioner is gainfully employed or

has attained such qualification so as to maintain himself, as such, the

petitioner is left free to avail remedy as available under law.

16. Viewed thus, there is no merit in this petition and the same is

dismissed.

(Rajnesh Oswal) Judge Jammu 02.09.2021 Rakesh

Whether the order is speaking: Yes/No Whether the order is reportable: Yes/No