Dr. Gh. Rasool Malik vs Mst. Amina and Others

A.B. Quadir Parray, J.—This revision is directed against the order dated 22-6-1995 passed by learned Sessions Judge, Baramulla in the

revision petition titled Ghulam Rasool Malik v. Mst. Amina and Ors.

In order to appreciate the matter in controversy in its real perspective, a brief resume of the facts of the case requires to be marshalled.

Non-applicants/respondents before me had filed an application u/s 488 Cr. P.C. in the Court of Judicial Magistrate, Ist, Class Baramullaon 12-

12-1990. This application was on behalf of Mst. Amina D/o Mohammad Sultan Nadroo, Razia (minor) alias Saira Banoo and Monisa (Minor)

daughters of Dr. Gh. Rasool R/o Mohalla Muslim Peer, Sopore, against the petitioner Dr. Ghulam Rasool Malik S/o Sonaullah Malik R/o

Galoora, tehsil Handwara, on the averments that the non-applicant/ petitioner before this Court had turned her out alongwith minor children from

his house and deserted the applicant and neglected them and failed to maintain them about more than a year before the institution of the application

for maintenance. Applicant No. 2 is stated to be studying in English medium school and applicant No. 3 at the time of filing a petition was only four

years' old. It is also averred that non-petitioner Mst. Amina is an unemployed woman and has no means of livelihood at all and for the reasons

mentioned above, she has been made to live a miserable life. On the other hand, petitioner before me is a well to do person and is a Doctor in the

Animal Husbandry Department. He is possessed of sufficient means and is in a position to maintain the non-petitioners and so on.

It seems that the non-applicant/petitioner before me was summoned. The records reveal that he despite service remained absent on 20-12-

1990 and exparte proceedings were ordered against him by the Trial Court. In-fact exparte order against the non-applicant seems to have been

passed on 26-12-1990 and the applicant/respondents before me was directed to lead evidence in support of her case in exparte.

The applicant has examined two witnesses namely Mohammad Ashraf and Mohammad Subhan, besides her statement. The case was reported

to have been adjourned for further orders and after having recorded art of evidence led by the applicant in exparte, the non-applicant/petitioner

before me is said to have moved an application for setting aside the exarte proceedings on 5-2-1991. It was vide order dated 9-3-1991 that the

exparte proceeding was set aside, but of-course subject to payment of costs of Rs. 150/- and the non-applicant was permitted to join the

proceedings. He was also directed to file his objections on or before 16-3-1991. Non-applicant is reported to have filed his objections on 4-5-

1991 and has resisted the application inter-alia on the following grounds :

The first point taken by the non-applicant/ petitioner before me is that the application merits rejection as the Court has no jurisdiction to try the

case; that the petitioner No. 1 is not entitled to receive any maintenance from the non-applicant because she stands divorced with effect from 20-

9-1989 and she being a Government employee, disentitles her from receiving maintenance allowance. Thirdly the non-applicant has stated that the

applicant remained his wife for a period of nine years and during this period, she remained with the non-applicant for a period of one year only. It

was due to rude, irresponsible, cruel and unnatural behaviour that the life of the petitioner was made miserable by the non-applicant and despite

requests and advices, she did not change her behaviour. Finally she left the house of the non-applicant and did not return to her matrimonial home

despite repeated requests by the non-applicant/petitioner. It was due to such behaviour that the petitioner had to divorce her and all her belongings

which she was entitled to receive under personal law were given to her.

It is also averred that at the time when applicant No. 1, Mst. Amina left her matrimonial abode, she took the applicant No. 3 while non-

applicant No. 2 remained with the non-applicant/ petitioner till March, 1991.

From the perusal of the records, it is also revealed that application for interim relief was also allowed by learned Judicial Magistrate Sub-Judge,

Baramulla vide order dated 20-7-1991 to the extent of minor daughters and they were allowed to receive an amount of Rs. 200/- per month each

from the date of institution of the application and to the extent of Mst. Amina, it was observed that the case shall be decided at the time of final

disposal of the application.

It is again brought on record that after the person of the petitioner before me had filed objections as non-applicant before the Court below, then

he again remained absent continuously and his counsel Mr. Gh. Mohi-ud-Din Wani sought adjournments on one or the other pretext and on

several occassions the witnesses brought by the applicant were returned for want of presence of the non-applicant. Finally vide order dated 9-3-

1992, the non-applicant was again set exparte and the applicant Mst. Amina was directed to lead evidence in exparte on 4-5-1992. Learned

counsel for the non-appliccant brought to the notice of the Court the fact that witnesses have already been examined and no more evidence is to be

led in the case and as such evidence of the applicant was closed.

Applicant Mst. Amina has deposed that she was married to the non-applicant/petitioner about 11 years ago and two daughters namely Razia

and Monisa were born out of the wedlock who are 9 and 4 years old respectively. Non-applicant has deserted her and his two daughters for the

last over three years and since then she alongwith her two minor daughters has sought refuge in her parental home. Her parents have died and she

is living with her poor brother. She is living miserable life and she has to maintain Razia who is studying in a Public School, while Monisa has been

admitted in St. Joseph School, Baramulla in Nursery class. She has no means to defray the charges of the fee and maintenance of the minors. The

non-applicant did not provide her any maintenance for her or for her children and she has been compelled to approach the Court.

The witnesses produced by her have also suported the contentions of the applicant. Learned Magistrate after appreciating the evidence and the

objections filed, has passed the order which is also impugned in this case, wherein he has allowed the application of Amina and her minor

daughters and has held applicant Amina to be entitled to receive an amount of Rs. 500/- per month as maintenance from the date of institution of

the application viz. 12-12-1990 till 4-5-1991 i.e. the date of filing of objections by the non-applicant, where in the non-applicant has disclosed that

he has divorced the applicant Mst. Amina. Applicants Razia and Monisa are held entitled to receive an amount of Rs. 400/- each per month from

the non-applicant from the date of application till they would live separately from him. This order was passed on 20-5-1992 by Judicial Magistrate,

Baramulla.

From the records, it is also revealed that application came to be filed by the petitioner before the Trial Court on 7-11 -1992 praying therein

that the exparte order passed against him u/s 488 Cr. P.C. on 20-5-1992 be set aside. The exparte order passed against him was being sought to

be set aside on the plea that some parallel proceedings were instituted by the applicant Mst. Amina in some Shariyat Board and as such, she

assured the petitioner that she will not proceed u/s 488 Cr. P.C. It is alleged that when the applicant after being dragged to the Shariyat Board had

every reason to believe that the non-applicant No. 1 will not press the application u/s 488 Cr. P.C. It was in this back ground that the exparte

proceedings were initiated against the petitioner and the impugned order was passed.

It is further submitted that the application for setting aside exparte order passed by the learned Judicial Magistrate was being sought to be set

aside, when application for setting aside said exparte proceedings has not been made within the stipulated period as envisaged under Sub-section

(6) of Section 488 Cr. P.C. The petitioner had also filed an application for condonation of delay in not filing the application within three months for

setting aside the order made against him in exparte, as provided under Sub-section (6) of Section 488 Cr. P.C.

The contention of the petitioner before the Court below seeking for setting aside the exparte order, of which he received notice as per his

averments on 7-11-1992, regarding the order having been passed on 20-5-1992, is being sought by praying in the condonation of delay

application that he was being persuaded by different organizations regarding the controversy between the parties and different organizations have

intervened in the matter. He has also placed some photostat copies of documents of different organizations on record.

This application of the petitioner has been resisted by the respondents herein, inter alia on the grounds that the story sought to be set up by the

applicant regarding the matter having been pending before Shariyat Board is concocted and false. The applicant has many times resorted to these

tactics only to pressurise the respondents so that she would resile and back out from proceeding against him. In- fact the petitioner had knowledge

of the proceedings pending before the Court below and of order passed against him.

Ld. Magistrate after having perused the whole record and hearing learned counsel for the parties and as per his observations, has not allowed

the application for setting aside the exparte order on the count that the application is not maintainable at all because the applicant has contested

earlier application for 1 1/2 year and there-after absented himself. The learned Magistrate has also observed that the provisions of Sub-section 6

of Section 488 Cr. P.C. are only attracted in a case where non-applicant has neglected to appear or failed to appear in consequence of the

summons and the Court proceeds in exparte against the non-applicant and finally makes an exparte order. But in a case where the non-applicant

has appeared and has the knowledge about the pendency of the proceedings and infact has filed his objections also, the provisions of Sub-section

(6) of Section 488 Cr. P.C. are not attracted and applicable and the provisions as such do not come to the rescue of the petitioner. Learned

Magistrate while returning his finding, has made reliance on Osman Gani Vs. Tahurannessa Begum, wherein identical facts were before their

lordships and they have also observed that proviso to Sub-section (6) of Section 488 Cr.P.C. only applies where service on the non-applicant has

been wilfully neglected or the non-applicants neglects to attend the Court i.e. where the non-applicant cannot be made to appear before the Court

or attend at all, then he may come within three months from the date of such order, having been passed against him for setting aside the same.

Ld. trial Magistrate has also observed that the statutory period provided under the same section which is self contained, is three months

prescribed under Sub-section (6) of Section 488 Cr. P.C. and there is no scope for introducing the element of knowledge into the statute which

will be amounting to violating and making in roads to the statute and accordingly learned trial Magistrate has rejected the prayer for setting aside

exparte proceedings initiated against the petitioner before me.

Further more petitioner in the Court below had raised an objection that the Court had no jurisdiction to hear the matter. The question is that of

one territorial jurisdiction, as because it is provided under Sub-section (8) of Section 488 as under: -

Proceedings under this Section may be taken against any person in any District where he resides or is, or where he last resided with his wife, or as

the case may be, matter of illegitimate child.

On this count, petitioner alleges that as because he was residing in District Kupwara because he is resident of Handwara, so it was in the

district of Kupwara that the matter should have been heard and not in the Court of District Baramulla, namely judicial Magistrate, Baramulla.

Though this objection has been pleaded by the petitioner but he has never pursued it subsequently. From the orders passed by the trial Magistrate

on 20-7-1991 while disposing of the interim relief application for grant of interim maintenance, has observed that he does not agree with learned

counsel for the non-applicant regarding objection of jurisdiction and differs with him for the reason that application u/s 488 of Cr. P.C. can be

made before any Magistrate in the District in which applicant resides. The findings given by learned Magistrate at that time have not been put to

challenge by the non-applicant, in case he would have been honestly pursuing the case.

It seems that he has been persuing the case casually and that is why it resulted in taking exparte proceedings against him and the casual manner in

which he then approached the trial Magistrate for setting aside the exparte proceedings has met the fate in the Court below.

So these two points seem to have been agitated before the revisional Court:

i. Whether the trial Magistrate while passing the impugned order has not adhered to the objection raised by the non-applicant regarding territorial

jurisdiction of the case?

ii. Whether person of the non-applicant when he has appeared in the proceedings u/s 488 in response to the notice issued to him and then

subsequently absented himself from the proceedings which necessitated initiating exparte proceedings against the non-applicant can be given

benefit of Sub-section (6) of Section 488 Cr.P.C?

Both the above points have been elaborately discussed and determined against the person of the petitioner before me by the revisional Court

i.e. Sessions Judge, Baramulla. He has given cogent reasons for passing the impugned order and even then the petitioner before me has put the

findings arrived at the revisional Court to challenge before this Court.

It may not be out of place to reiterate that the period prescribed under Sub-sections (6) of Section 488 Cr. P.C. is only three months from the

date of passing of such exparte order which is sought to be set aside and that too for a good cause to be shown on an application to be made to

the Court from the date thereof. This period of limitation is within the provisions contained in proviso to Sub-section (6) of Section 488 Cr. P.C.

So under the provisions of Sub-section (2) of Section 29 of the Limitation Act, the period applicable to such application will not be extended by

any stretch of imagination as because Sub-section (2) of Section 29 of the Limitation Act reads:

Where any special or local law prescribes for any suit, appeal or application, a period of limitation differs from the period prescribed therefore by

the Ist. Schedule, the provisions of Section 3 shall apply as if such period was prescribed therefore in that schedule and for the purpose of

determining any period of limitation prescribed for any suit, appeal or application by any special or local law...

So the period which has-been prescribed by the Special Law namely in the present circumstances, Criminal Procedure Code, proviso to Sub-

section (6) of Section 488 Cr.P.C. cannot be extended u/s 5 of the Limitation Act of the State. There is no word that such period 'shall' start from

the date of knowledge. Legislature has been definite and specific in mentioning ""provided that if the Magistrate is satisfied that he is wilfully avoiding

service or wilfully neglects to attend the Court, the Magistrate may proceed, hear and determine the case exparte. Any orders so made may be set

aside for good cause shown, on an application within three months from the date thereof.

So by no stretch of imagination, Section 5 of the Limitation Act will be applicable. It is excluded from the very saving clause of the Limitation

Act as referred to hereinabove.

It may be noted that the Revisional jurisdiction of Sessions Judge as well as of the High Court is concurrent in such matters. Once one

revisional Court has been moved, there is no necessity of moving another revisional Court unless mis-carriage of justice appears to have been done

or the revisional Court has not appreciated the matter in controversy in its correct perspective.

It may also be noted that this Court can suo-motu also look to the verasity of the findings arrived at and the illegality and irregularity of the

proceedings but that must be manifestly clear from the records.

When I go through the conclusions arrived at and the appreciations made by the learned Revisional Court, I do not feel that there is any

requirement to interfere in the order passed by the Court below i.e. the trial Magistrate or the revisional Court of Sessions Judge, Baramulla.

Cogent reasons and the elaborate findings arrived at by learned Sessions Judge and the law discussed by him and the appreciation given does not

require any interference. Thus the points urged by the petitioner before this Court also do not find favour with this Court and are accordingly

rejected.

Now the question remains as to the fact that if for arguments sake, as per provisions of Sub-section (8) of Section 488 Cr. P.C. the matter has

been adjudicated by the Court having no territorial jurisdiction as per averments, can be said defective if any, be deemed to have been cured or is

curable under the provisions of Section 531 of Cr. P.C. which reads:

No findings, sentence or order of any criminal Court shall be set aside merely on the ground that inquiry, trial or other proceedings in the course of

which it was arrived at or passed took place in a wrong Sessions Division, District, sub-Division or other local area, unless it appears that such

error has in fact occassioned failure of justice.

So the provisions of Section 531 Cr. P.C. are evident. Merely alleging that the Court of Judicial Magistrate had no territorial jurisdiction to

adjudicate the matter will not make the order passed by the Court of Judicial Magistrate, Baramulla illegal. It is not shown that the order passed by

Judicial Magistrate has caused or occassioned in failure of justice, by the petitioner. In fact the protracted litigation entered into by the petitioner

before me has occassioned in failure of justice to be given to the claimant of the maintenance for herself and her destitute/deserted children born

out of the wedlock of the parties. The very purpose of Section 488 Cr. P.C. stands defeated in such protracted proceedings, to which resort has

been made by the petitioner. Petitioner could claim that it has resulted in failure of justice in case he was not given a chance to appear before the

Court or allowed to file his objections or called upon to show cause why order for maintenance should not be passed against him. All these

proceedings seem to have been done in the Court below.

The petitioner no-doubt appeared before Court below, filed his objections, but then did not persue the same to its logical conclusions. His

casual way of dealing with the matter has resulted in protracting of proceedings and in virtual denial of justice to the person of the non-

applicant/claimant for maintenance. This is never the purpose of the procedure or the law. So on this count also, the plea taken by the petitioner

that defect, if any caused due to lack of territorial jurisdiction of the learned Judicial Magistrate, Baramulla is not curable u/s 531 Cr. P.C. is not

well founded.

Even if there is any lack of territorial jurisdiction that is curable and this Court views it in that view. Had the matter been that the Judicial

Magistrate, Baramulla was lacking inherent jurisdiction to hear the matter, then the matter may be deemed that it is not curable u/s 531 Cr. P.C. To

elucidate for example it is the only Court of Judicial Magistrate Ist. class who can entertain application u/s 488 Cr. P.C. as it is the Judicial

Magistrate, Ist. Class who is empowered to hear and dispose of such applications including the Chief Judicial Magistrate. But in case application

u/s 488 Cr. P.C. is moved before an Executive Magistrate to deal with such matter and the Executive Magistrate has no inherent jurisdiction to

hear such applications and in case such Magistrate passes an order of maintenance or otherwise in such matter u/s 488 Cr. P.C. such order passed

by such Magistrate lacks inherent jurisdiction and is not curable u/s 531 Cr. P.C.

Here in the present case, the Court of Judicial Magistrate, Baramulla is having inherent jurisdiction to entertain and deal with such applications,

but for the reasons mentioned hereinabove, the order passed by him does not suffer on any count and is not bad, inexecutable in the eyes of law

only because there is lack of territorial jurisdiction under the provisions of Sub-section (8) of Section 488 Cr. P.C, which in the close scrutiny also

seems to be discretionary and not mandatory provision because the very word of Sub-section (8) do speak :

That proceedings under this Section may be taken....

Had the word been that the proceedings 'shall' be taken, then it was mandatory. There can be a case where parties having entered wedlock or

posted in far flung areas in the State and then differences arose between the couple and they separated, for example at Tangdar and Gurez the wife

along with children may come back to her parental house to Srinagar or to any other place other than the place where they were posted and lived

together before their relations becames trained, the provisions of law envisage that any proceedings for claiming maintenance are to be lodged in

the place where he last resided with his wife. That means that she will have to go to the Court at Tangdar or Burez, which will naturally result in

mis-carriage of justice because the claimant who has been made a destitute or deserted alongwith her children by unscrupulous husband will be

denied the right of maintenance under the pretext that she has to file the petition at the place where they last resided, which may be either far flung

area like Gurez or Tangdar which is inaccessible or the residence of the person of the husband may be a far flung District like Bhaderwah and

Poonch and the wife may be belonging to Srinagar or any other local area, but the stand taken by the unscrupulous husband in order to frustrate

the claim of such women-folk can take resort that as because the husband belongs to Poonch or Bhaderwah so proceedings against him should be

initiated in the District of Bhaderwah or Poonch by a woman residing at Srinagar or Baramulla. So in this context, it can never be the intention of

legislature that the proceedings should necessarily be taken in District where they last resided or in the District where non-applicant resides.

The Legislature has enshrined the word 'may' which means that discretion has been left with the claimant to file the proceedings and as such is

only a discretionary and not mandatory. On this count also, the argument projected by the petitioner's counsel do not hold substance.

So this revision petition fails on the count that there is no illegality or irregularity or procedural or lack of jurisdiction involved which calls for an

interference by the revisional Court and more so when already revision petition has been heard and considered by one of the revisional Court, no

necessity under law arises that second revision should have been filed before this Court. Even otherwise also, from the perusal of the records; this

Court does not find that there is an irregularity or illegality of procedure followed by the trial Magistrate or the bindings arrived at by the Trial Court

or procedural iregularities which calls for an interference by this Court.

In-fact recording reveal that even recoveries are being effected and the arrears of maintenance have in fact been recovered which stands

deposited with the Trial Court and its payment has been inferred to the claimant under the pretext and garb of these revision in this Court.

For the foregoing reasons, this revision petition is mis-conceived and is rejected accordingly. It is directed that the amounts which have been

deposited with the Trial Court and having been duly recovered in the process of recovery for such arrears of maintenance be paid to the claimant

immediately without any further delay. Records be remitted back to the Trial Court for further proceedings under law. Revision file be consigned to

records.