Kamla Devi and ors. vs Mehma Singh

J. S. Sekhon, J.

The sole controversy in this criminal revision petition directed against the order of Shri M. S. Luna. Additional Sessions Judge, Patiala, is whether the trial Court can restore the execution application of an order passed under Section 125 of the Code of Criminal Procedure (hereinafter referred to as the Code) which was dismissed in default on sufficient grounds.

In brief, the facts are that Mst. Kamla Devi wife was granted maintenance allowance at the rate of Rs. 100/ per month while her two minor daughters, Neelam and Guddi, were granted maintenance allowances at the rate of Rs. 50/ each from the date of application i. e. 2391980, vide order dated 25101982 passed by Shri T. R. Bansal, Judicial Magistrate Ist Class, Rajpura. On the failure of the husband to pay the maintenance allowance, Mst. Kamla Devi, petitioner, filed first execution application on 19101983 claiming arrears of maintenance allowance with effect from 2391980 to 23.10.1983. This application was dismissed in default on 1951984. Subsequently on 481984, this application was restored by the learned Judicial Magistrate. During the pendency of these proceedings, she also filed another execution application dated 1951984 for realising the arrears of maintenance allowance from 1.3.1984 to 3131985. The learned Judicial Magistrate disposed of both these applications vide his order dated 2531987 and the husband was sentenced to undergo 12 months imprisonment subject to the condition that he shall be released if he makes the payment of the amount due sooner. It was further held that the amount recoverable from him was Rs. 10,000/. Being aggrieved against the said order of the trial Court, the husband went in revision petition which was disposed of by the learned Additional Sessions Judge Patiala, vide impugned order by holding that there being no provision in the Code for restoration of the execution application dismissed in default, the order of the Judicial Magistrate to that extent was not justifiable. However, the imprisonment of the husband for the arrears of maintenance allowance claimed vide second execution application dated 2931985 was upheld. The wife being aggrieved against the said order of the learned Additional Sessions Judge has come up in this criminal revision before this Court. During the pendency of this revision petition, the husband has paid the arrears of maintenance allowance adjudged in second execution application.

I have heard Shri Gur Rattanpal Singh, Advocate, learned counsel for the petitioner, and Shri Jagmohan Singh, Advocate learned counsel for the respondent and have perused the record.

The learned Additional Sessions Judge by relying upon the decision of this Court in Bhagwan Singh v. Mst. Gurnam Kaur, 1966 Current Law Journal 129, as well as of the Supreme Court in Major General A.S. Gaurava and another v. S.N. Thakar and another (1986 Criminal Appeals Reporter (Supreme Court) (17: 1987(1) CLR 408] came to the conclusion that there being no provision for restoration of the execution application of the order of maintenance passed under Section 125 of the Code dismissed in default, the above referred order of the executing Court dated 4.8.1984 restoring the execution application was not justifiable. The decision of the Delhi High Court in Smt. Prema Jain v. Sudhir Kumar Jain, 1980 Marriage Law Journal 17. to the effect that application dismissed in default under Section 125 of the Code could be restored being an administrative order was not followed in view of the binding nature of the above referred decisions of this Court as well as of the Supreme Court.

There is absolutely no doubt that in Chapter 9 of the Code specific provisions had been enacted by the Legislature in the shape of Sections 125 to 128 in order to provide expeditious remedy of maintenance allowance to the destitute wives, children and parents of the person concerned. In a way it can be well said that maintenance proceedings are in the nature of civil proceedings. Their Lordships of the Supreme Court in Nand Lal Misra v. Kanhaiya Lal Misra, AIR 1960 Supreme Court 882, had observed that these proceedings are of a civilnature as no preliminary enquiry is needed in the application filed under section 488 of the old Code as in the case of a complainant. The Kerala High Court in N. E. Vasudevan Nair v. Kalyani Amma Gouri Amma and others, 1970 Criminal Law Journal 1173, had also taken a similar view by holding that the proceedings under Section 488 of the old Code are not in the nature of criminal proceedings but are civil proceedings dealt with summarily in criminal Court with the object of speedy disposal for reasons of convenience and social order. The perusal of Section 125 of the Code further shows that the Legislature had laid down the procedure for disposing of application filed by destitute and deserted wife etc. for maintenance under this section. Section 126 further provides that all evidence in such proceedings shall be taken in the presence of the person against whom an order for payment is proposed to be made or in the presence of his pleader where his personal attendance has been dispensed with. The proviso to subsection 2 of this section further provides the taking of exparte proceedings against the person concerned and for setting aside such exparte order for good cause being shown. Section 127 of the Code further empowers the Magistrate to make alteration in the quantum of allowance subject to the maximum limit of Rs 500/ per month or vary its order in view of the decision of a competent civil Court regarding maintenance etc. or on some other ground like the divorced woman living in adultery etc. etc. Section 128 of the Code lays down the procedure of enforcement of the order of maintenance. The only ground mentioned therein is the satisfaction of the Magistrate regarding the identity of the parties and the nonpayment of allowance due. The proviso to subsection 3 of the Section 125 further limits the right to realise the arrears of maintenance allowance to a period of one year from the date on which it becomes due. No doubt, there is no provision in the Code regarding the restoration of the application filed under section 125 of the Code dismissed in default or the application for execution of the order of the maintenance dismissed in default on good cause being shown.

Mr. Justice M. S. Joshi, Judge of the Delhi High Court, in Smt. Prema Jain''s case (supra) after elaborate discussion had taken the view that such an order is only administrative one and could be reviewed by the Magistrate on sufficient cause being shown on the analogy of the provisions of JUDGMENT 9 of the Code of Civil Procedure. He has further held that provisions of Section 362 of the Code simply bars the Court from altering or reviewing the judgement or final order after it has been signed except to the extent of correcting a Clerical or arithmetical error but it would not cover an order of dismissal in default for nonappearance of the petitioner of an application under Section 125 of the Code. In the above referred judgment, the view taken by this High Court in Bhagwan Singh''s case (Supra) was discussed and not followed on the ground, that this precedent was based on the early decision of this Court in Babu Ram v. Ramji Lal and others, AIR 1964 Punjab 444 wherein the controversy pertained to proceedings under Section 145 of the Code besides holding that this aspect of the matter whether the order of dismissal was an administrative matter was not brought to the notice of the Court.

In Major General A. S. Gaurava''s case (supra) the controversy related to the complaint dismissed in default of appearance of the complainant and it was held that there is no inherent jurisdiction enabling the Magistrate to restore the complaint. The controversy did not involve the restoration of the application under Section 125 of the Code which was dismissed in default. The provisions of Section 249 of the Code specifically empower the Magistrate to discharge the accused when the complainant is absent but there is no corresponding provision for dismissal of an application under Section 125 of the Code or the execution application under Section 128 of the Code. Moreover, the complaint dismissed in default can be filed again and the Complainant does not suffer any loss except in some cases where it may become barred by time but in that contingency, the complainant would be at liberty to prove sufficient cause for his nonappearance on the fateful day, in order to condone the period of limitation. On the other hand, in proceedings under Sections 125 and 128 of the Code, the party concerned would be left helpless and destitute in claiming maintenance for a period of more than one year in cases where the person liable to payment has to be confined in jail. Thus the ratio of this decision of the Supreme Court is not attracted to the facts of the case in hand especially when their Lordships of the Supreme Court in Nand Lal Misra''s case (supra) had held that the proceedings under Section 488 of the old Code cannot be equated with the criminal complaint. The Calcutta High Court in Hakimi Jan Bibi v. Mouze Ali, 1985(2) Criminal Law Journal 213, had also taken the view that application for maintenance under Section 488 of the old Code dismissed. in default of the non appearance of the wife could not be restored due to lack of any provision in the Code but at that time in the provisions of Section 362 of the old Code, the word final order did not figure but the Legislature in enacting the corresponding provisions of Section 362 of the new Code had specifically mentioned the word final order or judgment.

In view of the divergent, views of the Single Bench of this Court and of the Delhi High Court besides the factum that the very intent of the Legislature in providing expeditious remedy of maintenance to wife and children etc. would be frustrated if it if held that the trial Court has no jurisdiction to restore such application dismissed in default, it is considered a fit case where the Hon''ble Chief Justice be requested for constituting a larger Bench for the decision of this controversy involving a question of vital importance in meeting the challenges of social justice. The reference to the larger Bench is posed as under :

Whether the Judicial Magistrate can restore the execution application of an order passed under Section 125 of the Code which was dismissed in default of non appearance of the petitioner on sufficient cause being shown.

JUDGMENT(January 5, 1989) of (Division Bench)

(S.S. Dewan & A.L. Bahri, JJ.

A. L. Bahri, J. Jai Singh Sekhon, J. vide his order dated October 11, 1988 referred the following question of law to the larger Bench:

"Whether the Judicial Magistrate can restore the execution application of an order passed under Section 125 of the Code which was dismissed in default of nonappearance of the petitioner on sufficient cause being shown."

The facts of the case, in brief, are as under:

Smt. Kamla Devi filed an application under Section 125 of the Code of Criminal Procedure for the grant of maintenance for herself as well as for her two minor children against her husband Mehma Singh Vide order dated October 25, Judicial Magistrate Ist Class, Rajpura allowed maintenance at the rate of Rs. 100/ per mensem to Smt. Kamla Devi and at the rate of Rs. 50/ per mensem to each of the minor daughters Neelam and Guddi. The maintenance was payable with effect from the date of the institution of the application i. e. September 23, 1980. On the failure of Mehma Singh to pay the maintenance as ordered, Smt. Kamla Devi moved an application for execution of the order of maintenance on October 29, 1983. She claimed arrears of maintenance for the period of September 23, 1980 to October 23, 1983. The said application for execution was dismissed in default by the Magistrate on May 19, 1984. Subsequently, the Judicial Magistrate restored the application dismissed in default vide his order dated August 4, 1984. In the meantime, Smt Kamla Devi filed another application for execution for recovery of arrears of maintenance for the period March 1, 1934 to March 31, 1985. Both these applications were disposed of vide order dated March 25, 1987. Meham Singh was ordered to undergo twelve months imprisonment subject to the condition that he would be released if he would make the payment of the amount of arrears earlier. A finding was also recorded that a sum of Rs. 10,000/ was in arrears. Mehma Singh took up the matter in revision before the Additional Session Judge, Patiala who vide his order dated August 27 1987 set aside the order of the Judicial Magistrate restoring the application which was dismissed in default holding that the Judicial Magistrate had no jurisdiction to do so. Otherwise, the order passed on the second application, as noticed above, was maintained. Smt. Kamla Devi and minor children filed the present criminal revision petition in this Court against the order of the Additional Sessions Judge.

Chapter IX of the Code of Criminal Procedure contains provisions for the grant of order for maintenance of wives, children and parents. This chapter consists of four sections such as sections 125 to 128. Section 125 provides that a Magistrate of the first class may, on fulfilment of certain conditions, pass anorder for the grant of maintenance to wives, children and parents. Subsection (3) of section 125 further provides that on failure of the person to comply with the order of the maintenance, the Magistrate could, for every breach of the order, issue a warrant for levying the amount due in the manner provided for levying fines and may sentence such person for the whole or any part of each month''s allowance remaining unpaid after the execution of the warrant to imprisonment for a term which may extend to one month or until payment if sooner made. Certain conditions are also mentioned therein where the Magistrate shall not pass such an order in execution. Section 126 of the Code of Criminal Procedure provides for territoral jurisdiction of the Court where such an application under section 125 of the Code can be instituted. Subsection (2) of Section 126 provides for evidence to be recorded in such proceedings in the presence of the person against whom an order for payment of maintenance is proposed to be made or where his personal attendance is dispensed with in the presence of his pleader. It further provides that where such a person is avoiding appearance, an ex parte order can be passed. The Court was also given power to make such orders as to costs is may be deemed fit. Section 127 of the Code provides contingencies when order passed under section 125 of the Code of Criminal Procedure could be modified, varied or cancelled. Section 128 provides fourm where order passed under section 125 of the Code can be enforced.

In a way, the aforesaid provisions in Chapter IX of the Code of Criminal Procedure constitute a Code of Procedure by itself. However questions cropped up as to whether, these, proceedings are criminal in nature or civil or that orders passed under section 125 of the Code of Criminal Procedure (section 488 of the old Code) are administrative orders, interim orders and could be reviewed by the Magistrate on fulfilment of the conditions as mentioned in these provisions and that the general provision that no criminal Court can review its order would not be attracted to these proceedings. The Calcutta High Court in Hakimi Jan Bibi v. Mouze Ali (1905)2 Cr. LJ 213 : 1 CLJ 214, noticed an earlier decision in Jamoti v. Gadalo Kumar, (1877)1 CLR 89, wherein it was held that where the application had been dismissed by a fully empowered Magistrate after hearing the evidence the District Magistrate could not entertain the complaint de navo. The Calcutta High Court held that the above case did not lay down the proposition that where a petition for maintenance has been dismissed in default of the appearance of the applicant, it is not open to the applicant to present a fresh petition. The application to rehear the petition already dismissed does not appear to have been made under any section of the Code giving the Magistrate any power to set aside his previous order and hear the case over again. The aforesaid observations of the Division Bench of the Calcutta High Court were noticed by Gurdev Singh, J. in Babu Ram v. Ramji Lal and others, 1964 PLR 196, in which it was held that if once a Magistrate passes an order dismissing for default an application under section 145 of the Code of Criminal Procedure, the proceedings could not be restored. These two decisions were further noticed and relied upon by Shamsher Bahadur J. in Bhagwan Singh v. Mst. Gurnam Kaur and another. 1966

Current Law Journal 129. It was observed that there was no provision In the Code of Criminal Procedure which could justifiably empower the Magistrate to restore for hearing an application which was dismissed in default by a Magistrate. The contention that the Court in its inherent powers could also review its judgment and the Magistrate''s action in restoring the petition when the petitoner reappeared on the day when it was dismissed in default was repelled observing that the power of restoration could not be spelled out from the general provisions. In Nand Lal Misra v. Kanhaiya Lal Misra, AIR 1960 SC 882 the Supreme Court while interpreting section 488 (6) of the old Code of Criminal Procedure observed that the provisions of Chapter XXXVI (of the old Co&) were a selfcontained Code and a distinction was drawn that those proceedings were not criminal in the sense of a trial of an accused person on a charge. Such proceedings were of a civil nature. Delhi High Court in Harbhajan Kaur v. Major Sant Singh, AIR 1969 Delhi 298, construing the observations of the Supreme Court in Nand Lal''s case (supra) observed that such maintenance proceedings were criminal proceedings designed by way of summary process to provide to deserted wives and neglected children adjudication of their civil right of maintenance upto a limited amount enforceable through criminal Courts to avoid the notorious delays of civil proceedings which may still be utilised for fuller relief under the general law in the ordinary civil Courts. The Orissa High Court in Norbet Kispatta v. Mst. Tersa Kerketa, 1971 Crl. LJ 1496, while commenting upon the provisions of sections 488 of the old Code, observed that such proceedings are not civil proceedings so as to attract the provisions of Civil Procedure Code as such proceedings are wholly governed by the provisions of Criminal Procedure Code Thus the provisions of JUDGMENTs VI, VII and VIII of the Code of Civil Procedure relating to pleadings in civil suits did not apply to a petition under section 488 of the old Code of Criminal Procedure. The matter was considered by the Karnataka High Court in Smt. Malan v. Baburao Yashwant Jadhav 1981 Criminal Law Journal 184, wherein it was observed that the strict rules of pleadings applicable to the pleadings in a civil suit cannot be applied to a petition under section 125 of the new Code of Criminal Procedure. The Allahabad High Court in Bishambar Dass v. Smt. Anguri and another, 1978 Criminal Law Journal 385, did not allow amendment of application filed under section 125 of the Code of Criminal Procedure to include the plea, that the petitioner (wife) was unable to maintain herself on the ground that there, was no provision in the Criminal Procedure Code to do so. However, the case was remanded to the trial Court to lead evidence on the said point.

A Division Bench of this Court consisting of S. S. Sandhawalia, the then CJ and D. S. Tewatia, J. in Chanan Singh v. Jangir Kaur 1983 All India Criminal Law Reporter 51 : 1983(1) Recent Criminal Reports 307 , while noticing some of the decisions, as referred to above, held that the proceedings under Chapter IX specially contained in the Code of Criminal Procedure are criminal in nature. The niceties of construing formal civil pleadings would not be attracted to an application under section 125 of the Code., Even assuming that a written application may be necessary thereunder, the said section does not prescribe its contents or any formal mode of presentation. the same is not to be verified as a formal civil pleading. Consequently, neither the Code of Civil Procedure or the principles thereunder could in any way be attracted, nor the strict rules of civil law viz. evidence beyond pleadings should be ignored can come into play. The question before the Division Bench was to whether the technicalities of construing civil pleadings were actually attracted to an application for maintenance by a wife under section 125 of the Code of Criminal Procedure. The Division Bench answered the question in the negative.

6 In Savitri v. Govind Singh Rawal, 1985 Marriage Law Journal 561 : 1986(1) CLR 331 : 1986(1) Recent Criminal Reports 83 the Supreme Court construed the scope of section 125 of the Code of Criminal Procedure on the question of making interim order. One of the principles laid down by the Supreme Court was as under :

"Whenever anything is required to be done by law and it is found impossible to do that thing unless something not authorised in express terms be also done then that something else will be supplied by necessary intendment.

It was further held as under:

"That in the absence of any express prohibition, it is appropriate to construe the provision in Chapter IX as conferring an implied power on the magistrate to direct the person against whom an application is made under section 125 of the Code to pay some reasonable sum by way of maintenance to the applicant pending final disposal of the application. It is quite common that applications made under section 125 of the Code also take several months for being disposed of finally. In order to enjoy the fruits of the proceedings under section 125, the applicant should be alive till the date of the final order and that the applicant can do in a large number of cases only if an order for payment of interim maintenance is passed by the Court. Every Court must be deemed to possess by necessary intendment all such powers as are necessary to make its orders effective."

It was further held that:

"Having regard to the nature of the jurisdiction exercised, by a magistrate under section 125 of the Code, the said provision should be interpreted as conferring power by necessary implication on the magistrate to pass an order directing a person against whom an application is made under it to pay a reasonable sum by way of interim maintenance subject to the other conditions referred to therein pending final disposal of the application."

The observations of the Supreme Court in Shri Bhagwan Dutt v. Smt. Kamla Devi and another, (1975)2 SCR 483, were noticed in Savitri''s case (supra) which are as under:

"These provisions (sections 488, 48) and 490 of the old Code of Criminal Procedure) are intended to fulfil a social purpose. Their object is to compel a man to performthe 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 destitued 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. As pointed out in Thompson''s case, 6 NWP 205, the scope of the Chapter XXXVI is limited and the Magistrate cannot, except as thereunder provided, usurp the jurisdiction in matrimonial disputes possessed by the civil Courts. Subsection (2) of section 489 expressly makes orders passed under Chapter XXXVI of the Code subject to any final adjudication that may be made by a civil Court between the parties regarding their status and civil rights."

A direct question as to whether an application filed under section 125 of the Code of Criminal Procedure dismissed in default could be restored was under consideration of the Delhi High Court in Smt. Prema Jain v. Sudhir Kumar Jain (1980) Vol. 3 Marriage Law Journal 17. (It was held that such an order of dismissal did not amount to final order and the Magistrate had the jurisdiction to restore the said application which was dismissed in default.) The provisions of section 362 of the Code of Criminal Procedure were not attracted as the order of dismissal in default was not a final order. It was further held that the application filed under section 125 of the Code of Criminal Procedure could neither be considered as complaint nor a police report under section 173 of the Code of Criminal Procedure. A clear cut distinction was drawn with respect to the application filed under section 125 of the Code and Criminal complaint and it was observed as under:

"It is not possible to equate maintenance proceedings contemplated by Chapter IX of the New Code with other proceedings under the Code, say, for instance, those covered by Chapters XIX and XX, for a variety of reasons. Failure to maintain a wife or a child has not been made by the statute liable to punishment; the respondent is not to be treated as an offender, the petition under section 125 of New Code is not a complaint and no preliminary inquiry is to be held before the issue of a process in pursuance thereof. Unlike a criminal trial, here the Court can proceed against the respondent exparte due to his nonappearance and can pass a final order behind his back. The provision for maintenance has been incorporated in the Code of Criminal Procedure only with the aim of making available to helpless persons a swift and speedy remedy, otherwise it would seem here to be quite out of place. In the case of an accused person there is a presumption of innocence unless there is proof to the contrary and the slant in the matter of interpretation is, therefore, against the prosecution. On the other hand, the provision in section 125 being a benevolent one, it has to be construed in favour of the persons who seek shelter the reunder. A petition under section 125 and a complaint to have someone sentenced for a crime are not expected, therefore, to be meted out the same treatment."

The matter was again considered by the Delhi High Court in Suhird Kamra v. Smt. Neeta and another, 1988 Marriage Law Journal 193 : 1988(1) Recent Criminal Reports 401 . The case of Smt. Prema Jain (supra) as well as of the Supreme Court in Smt. Savitri''s case (supra) were noticed along with other cases and it was observed as under:

"Keeping in view the fact that proceedings under Chapter 9 are in nature of civil proceedings and enacted for providing urgent and effective reliefs it cannot be said that the magistrate has no power to restore, on sufficient cause shown, a petition under section 125 of the Code which had been dismissed in default. It is a matter of common knowledge that petitions under section 125 are disposed of not in terms of months but sometimes in years and the Court is empowered to fix maintenance from the date of the petition. A great deal of misery will be caused to destitute women and helpless children or even parents who cannot maintain themselves if the provisions are to be read to mean that a petition dismissed in default cannot be restored. This could never be the intention of the Legislature. There could be no other interpretation lest it be said that there is so much law yet there is no room for justice. It has therefore to be held that a criminal Court while considering a petition under section 125 of the Code has power to restore the same on its file on sufficient cause being shown if the petition had earlier been dismissed in default of appearance of the petitioner."

There is no specific provision in Chapter IX of the Code of Criminal Procedure dealing with application for grant of maintenance to wives, children and parents to dismiss such applications for nonappearance of the petitioner. Since such applications are not to be equated with criminal complaints which necessarily are to be dismissed for nonappearance of the complainant in view of section 256 of the Code of Criminal Procedure, it is only in the exercise of inherent power of the Court that for nonappearance of the petitioner, application under section 125 of the Code is dismissed. If that is so, there is no reason why there should not beinherent power with the Court to restore such applications dismissed in default on showing sufficient cause by the petitioner for his nonappearance.

The nature of the proceedings in Chapter IX of the Code is inherently concerning civil rights i. e. grant of maintenance to wivies, children and the parents. All these orders passed under different provisions of Chapter IX, as briefly noticed above, are interim in nature and can be modified, varied or cancelled on the grounds mentioned therein. Furthermore such orders are subject to final orders, if any, passed by the civil Courts regarding grant of maintenance. The Code of Criminal Procedure provides a swift and speedy remedy to the petitioners claiming maintenance who are being neglected. It is only in the matter of implementation of such orders that a stringent provision is made for recovery of such amount as recovery of fine or by sending the person against whom order is made to imprisonment for a certain period till payment is made. This remedy cannot be throttled by procedural technicalities such as nonappearance of the petitioner on a particular day. Such nonappearance in a given case may be beyond the control of the petitioner. In other words, there may be sufficient and cogent reason for the petitioner not to put in appearance when the case was actually called. In such circumstances not to restore the application dismissed in default would result in miscarriage of justice. On a sufficient cause being shown the Court would have inherent power in such like cases to restore such applications dismissed in default.

As observed by the Supreme Court in Nand Lal Misra''s case (supra), proceedings under Chapter IX of the Code of Criminal Procedure are not of criminal nature but are primarily of a civil nature. Although technicalities of procedure as provided in different provisions of the Code of Civil Procedure may not ipso facto apply to proceedings initiated under section 125 of the Code of Criminal Procedure, however, such of the provisions of the Code of Civil Procedure which help in advancing the cause of justice can legitimately be adopted in the proceedings initiated under section 125 of the Code of Criminal Procedure. The provision of restoration of application dismissed in default is such which enhances the cause of administration of justice and such power is inherent with the Court while deciding an application under section 125 of the Code of Criminal Procedure in view of the analogy of the decision of the Supreme Court in Savitri''s case (supra).

In Babu Ram''s case (supra) this Court was considering the scope of proceedings under section 145 of the Code of Criminal Procedure which relates to apprehension of breach of peace in connection with the possession of land or property and as such are basically different from proceedings under section 125 of the Code of Criminal Procedure. The view expressed in Bhagwan Dutt''s case (supra) is overruled. Technical rules of procedure, as laid down in the Code of Civil Procedure, cannot be applied to the proceedings under section 125 of the Code of Criminal Procedure. To that extent, view expressed in Chanan Singh''s case and other case''s referred to above is correct. However. the view expressed in Chanan Singh''s case (supra) by Division Bench of this Court that proceedings under section 125 of the Code of Criminal Procedure are criminal cannot be accepted in view of the decision of the Supreme Court in Nand Lal Misra''s case referred to above.

We respectfully agree with the view expressed by the Delhi High court in Suhird Kumar''s case (supra) and Smt. Prema Jain''s case (supra). The question referred is, therefore, answered in the affirmative.

The matter is directed to be placed before the Single Judge for decision of the criminal revision petition according to law.

JUDGMENTDATE AUGUST 7, 1989

S. S. Dewan, J. This revision petition at the instance of Kamla Devi petitionerwife (hereinafter referred to as the wife) of Mehma Singh respondenthusband (hereinafter referred to as the husband) arises out of a petition for maintenance under Section 125 of the Code of Criminal Procedure.

Smt. Kamla Devi wife was granted maintenance allowance at the rate of Rs. 100/ per month while her two minor daughters, Neelam and Guddi, were granted maintenance allowance at the rate of Rs. 50/ each from the date of application i. e. 2391980. On the failure of the husband to pay the maintenance allowance, Smt. Kamla Devi petitioner filed first execution application on 19101983 claiming the arrears of maintenance allowance with effect from 2391980 to 23101983. This application was dismissed in default on 1951984. Subsequently, on 4.1.1984 this application was restored by the learned Judicial Magistrate. During the pendency of these proceedings, she also filed another execution application dated 29.3.1985 for realising the arrears of maintenance allowance from 131984 to 3131985. The learned Judicial Magistrate disposed of both the applications vide his order dated 2531987 and the husband was sentenced to undergo 12 months imprisonment subject to the condition that he shall be released if he makes the payment of the amount due sooner. It was further held that the amount recoverable from him was Rs. 10,000/. In the revision filed by the husband the learned Additional Sessions Judge, Patiala, set aside the impugned order by holding that there being no provision in the Code for restoration of the execution application dismissed in default, the order of the Judicial Magistrate to that extent was not justifiable. Wife being aggrieved by the said order of the Additional Sessions Judge came up in revision before this Court. Since there was a conflict of authorities in various Courts on this point, Jai Singh Sekhon J. formulated the following question and referred it for decision to a larger Bench:

"Whether the Judicial Magistrate can restore the execution application of an order passed under section 125 of the Code which was dismissed in default of nonappearance of the petitioner on sufficient cause being shown ?"

The Division Bench to which I was a party vide order dated January 5, 1989, answered the question posed in the affirmative holding that a Criminal Court while considering a petition under Section 125 of the Code has the power to restore the same on its file on sufficient cause being shown if the petition had earlier been dismissed in default of appearance of the petitioner.

The legal question having been settled in favour of the petitioner, this revision petition succeeds. The impugned order dated 2781987 is accordingly set aside and the order made by the trial Court Magistrate on 2531987 is hereby restored.

JUDGMENT accordingly.