JUDGMENT
D.P. Wadhwa, J.
(1) The petitioner husband has filed this petition-seeking to quash the proceedings against him filed under Section 125 of the Code of Criminal Procedure (for short the Code) by his wife and his daughter the respondents herein. The circumstances leading to the filing of the present petition are that the first respondent and the second respondent through the first respondent filed a petition under Section 125 of the Code- against the petitioner in the court of metropolitan magistrate on the ground that the petitioner though having sufficient means had neglected to maintain the respondents being his wife and the daughter, they being unable to maintain themselves. This petition under Section 125 of the Code was dismissed in default of non-appearance of the first respondent on 3-7-86. The first respondent applied for restoration of this petition on the ground that she was under the bona fide belief that the date ol’ hearing was 30-7-86 which was. also the date noted in the diary of her counsel. It could not be questioned that there was sufficient cause for non-appearance of the first respondent on 3-7-86. The application of the first respondent for restoration of her petition under Section 125 of the Code was allowed by order dated 3-3-87 by the learned magistrate. He rejected the contention of the petitioner husband that the magistrate had no jurisdiction to restore the petition dismissed in default. Against (hat order a revision was filed by the petitioner husband in the court of Sessions which was also dismissed by order dated 17-8-87 of the Court holding that the magistrate had jurisdiction to restore the petition. Against that order the present petition has been filed.
(2) In support of his submission that the magistrate could not have restored a petition under Section 125 of the Code dismissed in default Mr. Sen learned counsel for the petitioner referred to the few decisions principally that of the Supreme Court in Maj Genl. A.S. Gauraya and another v. S.N. Thakar and another, . InSmt. Harbhajan Kaur v. Major Sant Singh, . this Court held while referring to the provisions of Article 134CI)(c) of the Constitution that proceedings under Section 125 of the Code (Section 488 of the Old Code of 1898) were criminal and were not civil proceedings and further that expression “criminal proceedings” under Article 134 was wide enough to include proceedings under Section 125. There could not be any dispute to this proposition. Reference was also made to an old Division Bench decision of the Calcutta High Court in Hakimi Jan Bibi v. Mouze All, 1905 Vol 11 Criminal Law Journal Reports 213. In a similar petition by the wife seeking maintenance the magistrate issued notice for a certain date. On that date the husband appeared and offered to maintain the wife if she agreed to live with him. The petitioner, however, failed to appear on that date and her petition was dismissed. She applied to the magistrate for restoration of her case alleging that her non-appearance was doe to illness. The magistrate refused to restore the case holding that there was no power given to him by the Court to restore a case of that nature. The High Court observed that the husband had admitted the petitioner to be his wife and had offered to maintain her on the condition of her living with him and that in Sub-section (3) of Section 488 of the old Code if the wife refused to live with him the magistrate would have 10 consider any ground of refusal stated by her and that far from staling any ground for refusal to live with her husband she herself stated in the petition that she was willing to live with her husband. The Court was thus of the view that the magistrate could not have made an order under Section 488 of the old Code. Under those circumstances it was held that she did not appear on the hearing to satisfy the magistrate on that point and nor did she send any one to ask for adjournment on the ground of illness, therefore, there was nothing illegal in any of the orders made by the magistrate. This decision does help the petitioner in the present case to some extent but I find that it has to be confined to the facts of that case as Court was influenced by an offer of the husband to maintain the wife provided she lived with him and the wife in her petition had herself stated that she was willing to live with her husband.
(3) It appears that this decision of the Calcutta High Court was relied upon by the Punjab High Court in Bhagwan Singh v. Mst. Gurnam Kaur and another’,1965(68) Plr 127. The Court observed that in the absence of any provision in the Code itself, the power of restoration could not be spelled out from the general provisions. The Court in this connection also referred to its earlier decision rendered under Section 145 of the Code in Babu Ram v.RamjiLal and others, 1964 (66) Plr 196. In this it was held that if once a magistrate passed an order dismissing for default an application under Section 145 of the Code the proceedings could not be restored.
(4) Advancing his arguments further Mr. Sen said that he did not dispute the position that second petition under Section 125 of the Code in the present case would be maintainable. He referred to Sub-section (2) of Section 126 which provided that all evidence in proceedings under Section 125 shall be taken in the presence of the husband and if he willfully avoided service or willfully neglected to attend the Court the magistrate might nevertheless hear and determine the case ex-parte. The Section, however, also provides that any such ex-parte order may be set aside for good cause shown on an application made within three months from the date of making of the order. The argument was that there was no similar provision for restoration of the petition dismissed in default of appearance of the petitioner to prosecute her petition. Mr. Sen said that there was no inherent powers vested in the magistrate to restore the petition. In A.S. Gauraya’s case (supra) the question posed was whether a sub-ordinate criminal court had any inherent jurisdiction out side the provisions of the Code of Criminal Procedure. In this case there was a complaint filed under Sections 67 and 72C(I)(a) of the Mines Act, 1952 and on a certain date fixed for appearance of the accused neither the complainant nor the accused was present and the magistrate dismissed the complaint “in default and for want of prosecution”. Subsequently on an application by the complainant the complaint was restored. Against that order the accused filed a revision in the Court of Additional Chief Judicial Magistrate, New Delhi, which was dismissed and of that a revision was taken to the Delhi High Court which also was dismissed. It could not be disputed that the magistrate had power to dismiss the complaint in default. The Court observed that the second complaint was permissible in law within certain limitations but that filing of a second complaint was not the same thing as reviving a dismissed complaint after recalling the earlier order of dismissal and the Code did not contain any provision enabling the criminal court to exercise such an inherent power. The Supreme Court observed that what the magistrate had to see was not whether the Code contained any provision prohibiting him from entertaining an application to restore a dismissed complaint but the task should be to find out whether the said Code contained any provision enabling a magistrate to exercise inherent jurisdiction which he otherwise did not have. The Court further observed that so far as the accused was concerned, dismissal of a complaint for non-appearance of the complainant or his discharge or acquittal on the same ground was a final order and in the absence of any specific provision in the Code a magistrate could not exercise any inherent jurisdiction. The aforesaid observations of the Supreme Court prima facie may lend support to the view conversed by Mr. Sen. But then this judgment has been rendered on the question if a complaint dismissed in default could be restored. Considerations are different while examining the question if the magistrate has power to restore a petition under Section 125 of the Code which is dismissed in default, particularly when there are sufficient grounds for non-appearance of the petitioner on the date when the petition is dismissed in default. For one thing fat petition under Section 125 is not a complaint. Nor the husband against whom the petition has been filed is accused of any offence. Preamble of the Code shows that it is an Act to consolidate and amend the law relating to criminal procedure. Basically procedure prescribed is for investigation of offences under the Indian Penal Code and offences under other laws, inquiry and trial of the cases, though special provisions also exist like order for maintenance of wives, children and parents (Chapter 9), maintenance of public order and tranquillity (Chapter 10). In Mst. Jagir Kapur and another v. Jaswant Singh, , the Supreme Court held that proceedings under Section 488 of the old Code (Sections 125 and 126 of the Code) “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”. Chapter 9 of the Code providing for maintenance of wives, children and parents intends to serve a social purpose. Sections 125 and 126 prescribe alternative forums to enable a deserted wife or helpless child to get urgent relief. The maximum maintenance that could be awarded under Section 125 is Rs. 500.00 per month. It is only if the order is made for grant of maintenance and there is a default in complying with the order that the magistrate can issue warrants for levying the amount due in the manner provided for levying fines and can even 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 so not made. These provisions regarding recovery of the maintenance as fine and also sentencing the person against whom the order is made for imprisonment only provided teeth to these provisions. It would appear that Chapter 9 containing Sections 125 to 128 is a complete Code in itself. There is a provision for alteration in allowance as well if there are changed circumstances. The important point which is to be noted is that the maintenance or the allowance is payable from the date of the order, or if so ordered, from the date of the application for maintenance (Sub-section 2 of Section 125). A dismissal of complaint may lead to discharge or acquittal of the accused. No such consequence flows if a petition under Section 125 is dismissed. Procedure for hearing of a petition under Section 125 is no where similar to that of a complaint whether in a summons or warrant case I think it is unnecessary to draw further distinction between a petition under Section 125 and the complaint which may be instituted under the Code. Mr. D.R.Sethi, learned counsel for the respondent said that the object behind the enactment of Chapter 9 in the Code is laudable and in this connection he referred to a decision of the Supreme Court in Bai Tahira v. Ali Hussain Fissalli Chothia and another, , where the Supreme Court observed that these provisions were benign enacted to ameliorate the economic conditions of neglected wives and discarded divorcees. The Court further observed that the welfare laws must be so read as to be effective delivery systems of the salutary objects sought to be served by the Legislature and when the beneficiaries are the weaker sections, like destitute women, the spirit of Art. 15(3) of the Constitution must belight the meaning of the Section. The Constitution is a pervasive omnipresence brooding over the meaning and transforming the values of every measure. So, Section 125 and sister clauses must receive a compassionate expansion of sense that the words used permit. I think the decision of the Supreme Court inSmt.SavUri v. Govind Singh Rawat, Air 1986 Sc 985, is a complete answer to the submission of the petitioner. In this connection he question before the Supreme Court was whether a magistrate before whom a petition under Section 125 of the Code was pending could make an interim order directing the person against whom the petition was made under that Section to pay reasonable maintenance to the petitioner concerned pending disposal of the petition. There is no such specific provision for grant of interim maintenance either under Section 125 or in other section falling under Chapter 9 or under any other provision of the Code. The Court nevertheless held that having regard to the nature of the jurisdiction exercised by magistrate under Section 125 of the Code the provisions should be interpreted as conferring power by necessary implication on the magistrate to pass such an order for grant of interim maintenance. It was observed that the Court should interpret the provisions under Chapter 9 of the Code in such a way that the constructions placed on them would not defeat the very object of the Legislation and further that “in the absence of any express prohibition, it is appropriate to construe the provisions in Chapter 9 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 further observed that every court must be deemed to possess by necessary intendment all such powers as are necessary to make its order effective. The Supreme Court also observed that civil courts bad inherent powers to grant interim maintenance pending disposal of the suit for maintenance and a criminal court shall also be held to have such an inherent power.
(5) Thus keeping in view the aforesaid principles and 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 them selves 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 ear her been dismissed in default of appearance of the petittoner. In Smt. Prema Jain v. Sudhir Kumar Jain, 1979 CC. Cases 74 (Delhi), this Court went to the extent of holding that the crder dismissing a petition under Section 125 of the Code in default of the appearance of the petitioner was in the nature of an administrative order other than a judicial one and the magistrate could review the same. It would be noted that an order on a petition under Section 125 of the Act even after recording of the evidence and hearing the parties is never always a final order and that the Court has power to alter the same if there are change in circumstances.
(6) I, therefore, do not find any merit in thi present petition and the same is dismissed accordingly.
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