TaxTMI 
TaxTMI 
TaxTMI 
2020 (2) TMI 1521
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....nd claiming maintenance for Respondent No. 1 as well as Respondent Nos. 2 and 3, minor daughter and son. On 14.10.2013 the Appellant filed a petition for divorce against Respondent No. 1. On the reconciliation efforts made by the Family Court parties settled the matter amicably on the terms and conditions recorded separately in the Court. As per the settlement the Appellant was to pay Rs. 25,000/- per month towards the maintenance of the Respondents with effect from July, 2015 upto April, 2017. With effect from May, 2017, the amount of Rs. 25,000/- per month was to be deposited directly in the account of Chandana Kapoor, Respondent No. 1 before 10th day of each month. The arrears were to be paid within six months. It was further contemplated that the Appellant and Respondent No. 1 shall file petition for divorce by mutual consent by incorporating the terms and conditions. The maintenance petition was, thus, disposed of by the Family Court by order dated 06.05.2017. 3. The Appellant from May, 2017 paid the maintenance only for four months i.e. Rs. 1,00,000/-. Respondent No. 1 filed an application in January, 2018 Under Section 125(3) Code of Criminal Procedure for enforcement of th....
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.... except to correct a clerical or arithmetical error. It is submitted that order dated 05.01.2019 of the Principal Judge, Family Court being contrary to Section 362 Code of Criminal Procedure is void. He submits that the High Court committed error in not setting aside the order dated 05.01.2019. 8. Learned Counsel for the Appellant in support of his submission has relied on several judgments of this Court which shall be noticed hereinafter. 9. The Respondent appeared through counsel on caveat. Learned Counsel for the Respondent supported the impugned judgment of the High Court. 10. We have considered the submissions of the learned Counsel for the parties and perused the records. 11. The only point to be determined in this appeal is as to whether the order passed by the Additional Principal Judge, Family Court dated 05.01.2019 setting aside the order dated 06.05.2017 disposing of the application Under Section 125 Code of Criminal Procedure and restoring the application Under Section 125 Code of Criminal Procedure was contrary to Section 362 Code of Criminal Procedure which provides that no Court can alter or review its judgment except for correcting a clerical or arithmetical mis....
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....pecifically prohibits the altering or reviewing of its order by a court. Inherent powers cannot be exercised to do what the Code specifically prohibits the court from doing. Shri Tripathi was competent to consider when the other party raised the objection whether the appeal was validly up for rehearing before him. He considered the question and decided it rightly. It is also urged for the Appellants Shri Tej Pal Singh had the jurisdiction to pass orders on the application presented by the Appellants on December 17, 1956, praying for the rehearing of the appeal and that therefore his order could not be said to have been absolutely without jurisdiction. We do not agree. He certainly had jurisdiction to dispose of the application presented to him, but when Section 369 of the Code definitely prohibited the court's reviewing or altering its judgment, he had no jurisdiction to consider the point raised and to set aside the order dismissing the appeal and order its rehearing. 13. Next judgment cited is Smt. Sooraj Devi v. Pyare Lal and Anr. AIR 1981 SC 736, where Section 362 Code of Criminal Procedure came for consideration. This Court laid down following: The Appellant points out ....
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....ok to Section 362 of the Code, which expressly provides that no court which has signed its judgment and final order disposing of a case, shall alter or review the same except to correct clerical or arithmetical error save as otherwise provided by the court. At this stage, the exercise of power Under Section 482 of the Code may be looked into. 17. Learned Counsel for the Appellant has also referred to judgment of this Court in Mahua Biswas (Smt.) v. Swagata Biswas and Anr. (1998) 2 SCC 359. In the above case, in the proceedings Under Section 125 Code of Criminal Procedure parties compromised and started living together but later fell apart. An objection was raised by the husband that order of maintenance could not be revived with which High Court agreed. This Court revived the maintenance application by allowing the appeal. In paragraph 3 following was held: 3. The matter can be viewed from either angle. It can be viewed that there was a genuine effort by the wife to rehabilitate herself in her matrimonial home but in vain. The previous orders of maintenance in a manner of speaking could at best be taken to have been suspended but not wiped out altogether. The other view can be th....
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.... Under Section 362 Code of Criminal Procedure prohibiting the court to alter or review its judgment or final order disposing the case applies to order passed Under Section 125 Code of Criminal Procedure is the question to be answered in the present case. 20. Section 362 Code of Criminal Procedure begins with the word "save as otherwise provided by this Code or by any other law for the time being in force". The above expression clearly means that rigour as contained in Section 363 Code of Criminal Procedure is relaxed in following two conditions: (i) Save as otherwise provided by the code of Criminal Procedure. (ii) any other law for the time being in force. 21. We need to first examine as to whether the orders passed in present case are covered by the exception i.e. "save as otherwise provided by the Code". Section 362 Code of Criminal Procedure, thus, although put embargo on the criminal Court to alter or review its judgment or final order disposing the case but engrafted the exceptions as indicated therein. The legislature was aware that there are and may be the situations where altering or reviewing of criminal court judgment is contemplated in the Code itself or any other l....
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....application of equality jurisprudence as evolved by Parliament and the Supreme Court in myriad situations presented before courts where unequal parties are pitted in adversarial proceedings and where courts are called upon to dispense equal justice. Apart from the social-economic inequalities accentuating the disabilities of the poor in an unequal fight, the adversarial process itself operates to the disadvantage of the weaker party. In such a situation, the Judge has to be not only sensitive to the inequalities of parties involved but also positively inclined to the weaker party if the imbalance were not to result in miscarriage of justice. This result is achieved by what we call social context judging or social justice adjudication. 15. The provision of maintenance would definitely fall in this category which aims at empowering the destitute and achieving social justice or equality and dignity of the individual. While dealing with cases under this provision, drift in the approach from "adversarial" litigation to social context adjudication is the need of the hour. 16. The law regulates relationships between people. It prescribes patterns of behaviour. It reflects the values of ....
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....the legislature while making a provision like Section 125 Code of Criminal Procedure, to fulfil its constitutional duty in good faith, had always intended to give relief to the woman becoming "wife" under such circumstances. This approach is particularly needed while deciding the issues relating to gender justice. We already have examples of exemplary efforts in this regard. Journey from Shah Bano to Shabana Bano guaranteeing maintenance rights to Muslim women is a classical example. 23. The closer look of Section 125 Code of Criminal Procedure itself indicates that the Court after passing judgment or final order in the proceeding Under Section 125 Code of Criminal Procedure does not become functus officio. The Section itself contains express provisions where order passed Under Section 125 Code of Criminal Procedure can be cancelled or altered which is noticeable from Section 125(1), Section 125(5) and Section 127 of Code of Criminal Procedure, which are to the following effect: 125(1). Order for maintenance of wives, children and parents. - (1) if any person having sufficient means neglects or refuses to maintain- (a) his wife, unable to maintain herself, or (b) his legitimate....
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....nce for the maintenance or interim maintenance, or ordered under the same Section to pay a monthly allowance for the maintenance, or interim maintenance, to his wife, child, father or mother, as the case may be, the Magistrate may make such alteration, as he thinks fit, in the allowance for the maintenance or the interim maintenance, as the case may be.] (2) Where it appears to the Magistrate that, in consequence of any decision of a competent Civil Court, any order made Under Section 125 should be cancelled or varied, he shall cancel the order or, as the case may be, vary the same accordingly. (3) Where any order has been made Under Section 125 in favour of a woman who has been divorced by, or has obtained a divorce from, her husband, the Magistrate shall, if he is satisfied that - (a) the woman has, after the date of such divorce, remarried, cancel such order as from the date of her remarriage. (b) the woman has been divorced by her husband and that she has received, whether before or after the date of the said order, the whole of the sum which, under any customary or personal law applicable to the parties, was payable on such divorce, cancel such order - (i) in the case whe....
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.... clearly enumerated the circumstances and incidents provided in the Code of Criminal Procedure where Court passing a judgment or final order disposing the case can alter or review the same. The embargo as contained in Section 362 is, thus, clearly relaxed in proceeding Under Section 125 Code of Criminal Procedure as indicated above. 27. The submissions which have been pressed by the learned Counsel for the Appellant were founded only on embargo of Section 362 and when embargo of Section 362 is expressly relaxed in proceeding Under Section 125 Code of Criminal Procedure, we are not persuaded to accept the submission of counsel for the Appellant that the Family Court was not entitled to set aside and cancel its order dated 06.05.2017 in facts and circumstances of the present case. 28. As noted above, the proceeding Under Section 125(1) Code of Criminal Procedure was disposed of on a settlement entered between the parties. The order passed by Family Court on 06.05.2017 is as follows: Reconciliation efforts made in this Chamber of the under signed. Parties have settled the matter amicably on the terms and conditions recorded separately in the court today. As per which, the Responden....