Smt. Sulochana Devi and Others vs Ram Kumar Chauhan and Another

P.N. Bakshi, J.—In proceedings u/s 125 Code of Criminal Procedure, the Resident Magistrate Haridwar passed an order directing Ram Kumar to pay Rs. 150/-to Jitendra Kumar, his minor son under the custody of his mother Smt. Sulochana Devi wife of Ram Kumar. Against that order a revision was filed by Ram Kumar before the Sessions Judge, Saharanpur, which was dismissed on 1st April, 1978. It appears that Ram Kumar failed to pay the maintenance allowance awarded by the court to his minor son, with the result that the minor had to apply to the court for execution of the order. On 28th August, 79, the Munsif-Magistrate directed warrants to be issued for the attachment of moveable property belonging to the opposite party. Aggrieved thereby a revision was filed before the Sessions Judge, Saharanpur, which has been allowed on 9th December, 79. Hence this revision.

It appears that in the instant case the application u/s 125 Code of Criminal Procedure was filed before the Executive Magistrate on 15th April, 1975. That application took about 3 years in that court, when ultimately the Resident Magistrate Haridwar passed his order in favor of the minor child on 4th June, 78. Ram Kumar thereafter filed a revision before the Sessions Judge. I have carefully perused the order of the Sessions Judge dated 1st April, 1978. Factual questions were argued before that court. The first question raised was that Jitendra Kumar was not the son of Ram Kumar. The revision court considered that question and concurred with the finding of the trial court that Jitendra Kumar is the son of Ram Kumar and that he is still minor aged about 6 years. He is thus entitled to maintenance allowance u/s 125(1) Code of Criminal Procedure.

The second question argued before the court of revision was that Smt. Sulochana Devi, the mother of the minor, had an independent source of livelihood and since the child was in her custody, she was bound to maintain him. This view of law was repelled rightly by the Sessions Judge.

The last question which was argued before the Sessions Judge was with regard to the quantum of maintenance allowance payable to the son. The Sessions Judge was of the opinion that the income of her husband was Rs. 700/- P.M. In view of that consideration, it confirmed the order of the trial court and granted maintenance allowance of Rs. 150/- per month to the minor. No other point appears to have been argued before the Sessions Judge. The jurisdiction of the Executive Magistrate to take cognizance of the application u/s 125 Code of Criminal Procedure and to pass suitable orders thereon was not challenged.

It appears that when the order of the Resident Magistrate was put into execution, for the first time an objection was taken by Ram Kumar that the order granting maintenance allowance passed by the Resident Magistrate was without jurisdiction and therefore, it can not be executed. The matter appears to have been referred to the Chief Judicial Magistrate, who passed an order transferring the execution to the Judicial Magistrate. The Judicial Magistrate, thereafter ordered the execution to proceed by issuing a recovery warrant for the attachment of the movables of the opposite party vide his Order dated 28th August, 1979. Aggrieved thereby Ram Kumar filed a revision in the court of Sessions Judge, Saharanpur, which has been allowed on 19th December, 79. The view taken by the Sessions Judge is that the Resident Magistrate had no jurisdiction to pass the order granting maintenance allowance and therefore, the execution could not proceed.

Vigorous arguments have been urged by counsel for both the parties. On the one hand, the applicants'' counsel has argued that this objection with regard to the jurisdiction has been taken at a very belated stage. It should not, therefore, be entertained. The Respondent''s counsel on the other hand, has argued that u/s 461(g) an order granting maintenance allowance can validly be passed only by the Judicial Magistrate and not by a Resident Magistrate. In support of his submission, learned Counsel has cited a Division Bench decision of our court, reported in Matoli v. Rukmoni 1978 AWC 436. That was a case u/s 488 Code of Criminal Procedure (old), in which an order had been passed for maintenance allowance. The matter was put into execution after the enforcement of the new Code of Criminal Procedure. A question arose whether the Executive Magistrate who had passed the original order for maintenance would have the jurisdiction to execute it or the powers of execution should be exercised by the Judicial Magistrate. The Division Bench held that in view of the amended Act of 1974 the Judicial Magistrate was the competent authority to execute that order. It is noticeable that inspite of the fact that the Division Bench of this Court expressed a view that the Judicial Magistrate was the competent authority to execute the order yet this Court refused to interfere observing that or "this will only entail further long drawn litigation and the consequent miseries to the already suffering and discarded wife." On this ground of equity, this Court did not interfere with the impugned order, even though it was illegal and without jurisdiction.

Guidance can also be taken from the observation of their Lordships of the Supreme Court in Tika Ram and sons Ltd. v. The Commissioner of Sates Tax 1978 SC page 1286. In that case, the Appellants had voluntarily submitted to the jurisdiction of the revision court Under the U.P. Sales Tax Act and also of the High Court on the question of validity of certain provisions of that Act. Subsequently they desired to challenge the jurisdiction of these authorities to deal with the matter. The Supreme Court held that "the Appellants having submitted to the jurisdiction and having taken a chance of judgment in their favour could not take exception to that jurisdiction of the High Court.

In the instant case, the application u/s 125 Code of Criminal Procedure was filed as far back as 15th April, 1975. It was dealt with by the Executive Magistrate, who passed an order granting maintenance allowance to the minor child aged about 6 years, vide his Order dated 1st April, 1978. Ram Kumar thereafter went up in Revision to the Sessions Judge, which was finally decided on 1st April, 1978. I have already detailed above, the three points which were argued before the revision court. Thus Ram Kumar took a full and complete chance of getting the order of the trial court reversed on the merits. He did not challenge the jurisdiction of the Executive Magistrate to pass the impugned order granting maintenance allowance. In my opinion, the Supreme Court decision applies on all fours to the present case. Ram Kumar can not now at this late stage be allowed to take up this objection of jurisdiction. Even if he is allowed, this Court would be extremely loathe to pass an order depriving the minor child aged 6 years, who has been litigating for the last 5 years of a paltry maintenance allowance for his subsistence. Courts of law are handmaids of justice. A court of revision in particular is not meant for interfering with impugned orders, merely on technicalities and illegalities. The primary consideration before the revision court is miscarriage of justice. In the instant case I am fully satisfied that it would be a travesty of justice, if this minor child aged 6 years is again directed to proceed from the initial stage and to file an application for the grant of maintenance u/s 125 Code of Criminal Procedure. The courts below have found that Ram Kumar is the father of this minor child. His deliberate avoidance in paying maintenance allowance speaks of the die hard attitude which he had adopted in refusing to maintain his child. I am informed by counsel for the applicant that inspite of the fact that no interim order was passed by the court, no payment has been given to the minor child by his father. In my opinion, the interest of justice do not warrant any interference with the impugned order, passed by the Judicial Magistrate directing execution of the order granting maintenance.

This revision application is accordingly allowed, and the impugned order passed by the Sessions Judge dated 19-12-1979 is set aside.