Giving a crucial verdict in a matrimonial suit, the Supreme Court of India has held that a Magistrate who passes an order on settlement between parties under Section 125 of the Code of Criminal Procedure (CrPC) has the power to recall or set aside the Order if terms of the same are violated, and Section 362 of CrPC does not function as a bar on the same.

The judgement was pronounced in a case titled as Sanjeev Kapoor v. Chandana Kapoor & Ors.

What is Section 125 of the CrPC?

It bestows in the Magistrate of the first class the power to pass an order directing for the payment of a monthly allowance for the maintenance of wives, children, and parents of any person having sufficient means to provide the same.

What is Section 362 of the CrPC?

This, on the other hand, provides a bar on the authority of the Court to alter or review a judgement or final order which disposes of a case, except for the correction of a clerical or arithmetical mistake.

Therefore these two laws combined together put a question in front of the Court as to whether the setting aside of an order disposing of an application under Section 125 CrPC and consequently restoring the said application is contrary to Section 362 of the CrPC?

The Court took into consideration the legislative scheme behind the promulgation of Section 362 of the CrPC by breaking down the Section.

Section contains a 'Saving Clause'

The Bench stated that as the Section contains a Saving Clause, "the rigour as contained in Section 362 CrPC is relaxed in the following two conditions:

a. Save as otherwise provided by the Code of Criminal Procedure.

b. Any other law for the time being in force.

Stating the above, the Bench held:

"The legislature was aware that there are and may be situations where altering or reviewing of a criminal court judgment is contemplated in the Code itself or any other law for the time being in force."

The Bench then examined the exceptions provided by CrPC itself, and explored the legislative scheme of Section 125 CrPC:

"Section 125 CrPC is social justice legislation which orders for maintenance for wives, children, and parents. Maintenance of wives, children, and parents is a continuous obligation enforced."

In regard to the above statement, the case of Badshah v. Urmila Badshah Godse [(2014) 1 SCC 188] was cited.

This case allows for a purposive interpretation to be given to Section 125 as the purpose is to achieve the constitutional vision of social justice as is enshrined in the Preamble of the Constitution of India. Therefore, a duty is placed on the shoulders of the Court to advance the cause of social justice and therefore, during the course of interpretation, bridge the gap between the law and society.

In order to achieve the same, an approach towards "social justice adjudication/social context judging" must be adopted, as opposed to a mere "adversarial approach". As elaborated by Prof. Madhava Menon, this approach is "essentially the application of equality jurisprudence as evolved by the Parliament and the Supreme Court in myriad situations presented before courts where unequal parties are pitted in adversarial proceedings and where courts are called upon to dispense equal justice." As per Prof. Menon, in situations with socio-economic inequalities, an adversarial approach operates in a disadvantageous manner toward the weaker party. Therefore, it is incumbent upon the Judge to be sensitive toward such inequalities so as to not allow for miscarriage of justice.

Express provisions for alteration or cancellation under Section 125(1), Section 125(5) and Section 127 of the CrPC

The Bench stated:

"A closer look of Section 125 CrPC itself indicates that the Court after passing judgment or final order in the proceeding under Section 125 CrPC does not become functus officio. The Section itself contains express provisions where order passed under Section 125(1), Section 125(5) and Section 127 of CrPC."

The usage of the expression "as the Magistrate from time to time direct" in Section 125(1) contemplates the continuous jurisdiction that can be exercised by the Magistrate when the occasion arises and that the Magistrate does not become functus officio after passing an order under Section 125.

While Section 125(5) expressly empowers the Magistrate to cancel an order passed under Section 125(1) on fulfillment of certain conditions, Section 127 "discloses the legislative intendment where the Magistrate is empowered to alter an order passed under Section 125 CrPC".

COURT OBSERVATION 

The Bench then held that the embargo contained under Section 362 of the CrPC was relaxed in proceedings under Section 125 CrPC. As the submissions of the counsel for the Appellant were founded on this issue only, the Bench did not accept the same.

The Bench added:

 "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."

The judgement has been delivered by Justice Ashok Bhushan and Justice R. Subhash Reddy on 19-02-2020.

Read Judgement Here:

 

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