Ganga Sharan Varshney vs Smt. Shakuntala Devi and Another

S.R. Bhargava, J.—This revision u/s 397 Code of Criminal Procedure involves a short legal point and has been finally heard at admission stage with agreement of the parties.

Revisionist Ganga Saran Varshney is resident of Hathras, Distt. Aligarh. Opposite party No. 1 Smt. Shakuntala Devi is resident of District Etah. She filed application for maintenance u/s 125 Code of Criminal Procedure against revisionist in Etah Court, claiming herself to be step-mother of the revisionist. On behalf of the revisionist preliminary objection to jurisdiction of Etah court was raised before the Magistrate concerned. Learned Magistrate placed reliance on Section 126(1) Code of Criminal Procedure and found that the mother can institute proceedings u/s 125 Code of Criminal Procedure only at the place where the for resides. Opposite party Smt Shakuntala Devi challenged the decision of the Magistrate in revision before the Sessions Judge, Etah, who held that the mother can institute proceedings u/s 125 Code of Criminal Procedure at the place of her residence also and so Etah court has jurisdiction to hear the petition u/s 125 Code of Criminal Procedure. Sessions Judge allowed the revision and remanded the case to Magistrate for disposal on merits.

Being aggrieved the revisionist has come to this Court.

Before proceeding further it may be mentioned that one of the contentions raised on behalf of the revisionist was that a step-mother cannot claim maintenance u/s 125 Code of Criminal Procedure and reliance was placed on the case of Sarju Prasad v. Smt. Damyanti 1984 Allahabad Criminal Rulings 219. But this contention is alien to the point arising in the revision. It touches the merit of the application brought by the step-mother and is left to be decided by the Magistrate concerned at the time of decision on merits, if occasion arises.

Question arising in this case has attained importance because of lacuna in Section 126(1) Code of Criminal Procedure Section 125 Code of Criminal Procedure entitles not only the wife or legitimate or illegitimate children to claim maintenance but also father or mother unable to maintain himself or herself. Only the new code has enabled father or mother to claim maintenance. Section 126(1) Code of Criminal Procedure runs as under:

(1) Proceedings u/s 125 may be taken against any person in any district--

(a) where he is, or

(b) where he or his wife resides, or

(c) where he last resided with his wife, or as the case may be, with the mother of the illegitimate child.

It is obvious that Clauses (b) and (c) are confined to wife or the mother of the illegitimate child. Although Section 125 enables father or mother to claim maintenance yet in Clauses (b) and (c) of Section 126(1) father or mother is omitted. Taking advantage of this silence it was vehemently argued on behalf of the revisionist that father or mother can institute proceedings u/s 125 Code of Criminal Procedure only where the son is.

This contention is, however, repugnant to the spirit or the purpose of Section 125 which in spirit and purpose is analogous to Section 488 of the old Code. For ascertaining the purpose and spirit of Section 125, the case of Shri Bhagwan Dutt Vs. Smt. Kamla Devi and Another, relied upon in the case of Savitri Rawat Vs. Govind Singh Rawat, can be cited with advantage:

These provisions are intended to fulfil a special purpose. Their objection is to compel a man to perform the moral obligation which he owes to society in respect of his wife and children. By providing a simple, speedy but limited relief, they seek to ensure that the neglected wife and children are not left beggared and destitute on the scrapheap of society and thereby driven to a life of vagrancy, immorality and crime for their subsistence. Thus Section 488 is not intended to provide for a full and final determination of the status and personal rights of the parties. The jurisdiction conferred by the section on the Magistrate is more in the nature of a preventive rather than a remedial jurisdiction it is certainly not punitive.

Generally speaking proceedings whether civil, quasi-civil or quasi-criminal can be instituted where cause of action arises. When the social purpose of Section 125 Code of Criminal Procedure is to prevent vagrancy and destitution the cause of action for proceedings u/s 125 Code of Criminal Procedure arises at the place where the person claiming maintenance is and is apt to face vagrancy and destitution. It is, no doubt true that proceedings can be instituted at the place where the Defendant resides because that would be the place where ultimately the order of maintenance, if passed, would be enforced. Where the Code is silent on the point whether the father or the mother can institute proceedings at the place where he is, the general principle should apply.

Case of Jagir Kaur and Another Vs. Jaswant Singh, was a case of maintenance between wife and husband. But even in this case with respect to the proceedings u/s 488 of the old Code it was observed:

Proceedings under this section are in the nature of civil proceedings, the remedy is a summary one and the person seeking that remedy, as we have pointed out, is ordinarily a helpless person. So the words, should be liberally construed without doing any violence to the language.

Section 488 of the old Code of Criminal Procedure enabled only the wife, children or illegitimate children to claim maintenance against the husband or father of the children. Section 488(8) provided--

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, the mother of the illegitimate child.

Thus it is obvious that the old Code did not specifically provide that the helpless person may claim maintenance at the place where she or he is. It only specified that the person from whom maintenance is claimed ''resides'', is'' and where he last resided with his wife. In the new Code the Parliament clearly intended that the helpless person should be allowed to institute proceedings where he or she resides and. therefore, in Clause (b) of Section 126(1) the Parliament introduced ''where he or his wife resides''. But in this clause the Parliament omitted mother or father. When the Parliament intended to give facility to helpless person to claim maintenance at the place where he or she resides, ommission of mother or father in the said clause is accidental or iuadvertant. The intention of the Parliament is clear that the helpless person should be given facility of claiming maintenance at the place where he or she resides.

Facts of the case of Mst. Jagir Kaur v. Jaswant Singh (supra), Gulam Hussian v. Mst. Hakam Bibi AlR 1926 Lah 663 and Ram Babu v. Ganga Devi 1969 AWR 16 are altogether distinguishable. They involve claim of maintenance by the wife from the husband and interpretation of Section 488(8) of the old Code. They do not render help in answering the question arising in this case.

In the instant case no violence to the language of Section 126 is intended. Only this much need be observed that there is lacuna in the section and that has to be filled up according to intention of the Parliament.

In the case of Ananth Gopal Pai v. Gopal Narayan Pai 1985 Cri.L.J. 152, it was held that a father seeking maintenance can file application at the place where be resides. I find myself in agreement with the reasons given in the case. A statute has to be construed in a manner to carry out the intention of the legislature and even a modification or contradiction of the language of the legislature is permissible in order to square with the intention. If the destitute or vagrant mother is compelled to institute proceedings only at the place where the son resides, she may not at all be in a position to persue her case. On the other hand the son having pecuniary resources can certainly contest the case against her at the place where the mother resides. The intention of the legislature behind Section 125 Code of Criminal Procedure is to provide against vagrancy and destitution.

Keeping in view the intention of the Parliament behind, Clause (b) of Section 126(1) of the new Code should be liberally construed and should mean to enable the claimant in general whether wife, or child, or illegitimate child or mother or father to claim maintenance at the place where she or he resides. Hence it is concluded that a mother can file application for maintenance u/s 125 of the new Code of Criminal Procedure in the district where she resides

On behalf of the opposite party reliance was placed on Section 462 Code of Criminal Procedure and it was argued that even if there has been irregularity, namely, institution of the application for maintenance at wrong place, that irregularity in face of the impugned revisional order should be overlooked u/s 462 of the new Code because no failure of justice has been pleaded or proved. I am of the opinion that in the circumstances of the instant case, Section 462 of the new Code corresponding with Section 531 of the old Code cannot be applied. In the instant case objection to jurisdiction was taken at the very initial stage. Magistrate decided the question of jurisdiction as a preliminary issue and dismissed the application for want of jurisdiction. In revision the Sessions Judge took contrary view and passed order requiring the Magistrate to decide the maintenance application of the mother on merits. Proceeding u/s 125 Code of Criminal Procedure is, no doubt, covered by ''other proceedings'' as found in Section 462. But there has been no finding or order on the merits of the maintenance application. Finding of the revisional court confined to the question of jurisdiction, cannot be ''finding'' as contemplated in Section 462. Key note for applying Section 462 is ''failure of justice''. Where simply a question of jurisdiction has been decided by the lower revisional court, it cannot be said that reversal of the decision of the lower revisional court shall result into ''failure of justice''. When question of jurisdiction has been raised at the beginning of the proceeding, Section 462 is not attracted. Hence, if this Court would have taken the view that mother is entitled to claim maintenance at the place only where the son resides, this Court would not have upheld the impugned revisional order u/s 462.

In result revision is dismissed.

Learned Magistrate seized of the proceedings shall proceed to decide the case on merits.