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Case Number

Criminal Revn. No. 513 of 1989

Attorney(S)

S.N.Chaudhary
P.C.Misra
Jitendra Pande

Judges

S.R Bhargava, J.

Acts

language.9. Section 488 of the old Criminal Procedure Code

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Smart Summary

Structured Summary of the Opinion (Revision under S. 397, Cr. P.C.)

Factual and Procedural Background

The revision arises from an application for maintenance under Section 125, Criminal Procedure Code (Cr. P.C.) filed in Etah by Smt. Shakuntala Devi, who claimed to be the step-mother of the revisionist, Ganga Saran Varshney. The revisionist is resident of Hathras (District Aligarh); Opposite Party No. 1 (Smt. Shakuntala Devi) is resident of District Etah.

The revisionist raised a preliminary objection before the Magistrate in Etah, challenging the jurisdiction of the Etah Court to entertain the maintenance petition. The Magistrate relied on Section 126(1), Cr. P.C. and held that a mother can institute proceedings under Section 125 only at the place where the son resides, and dismissed the application for want of jurisdiction.

The opposite party challenged the Magistrate’s decision in revision before the Sessions Judge, Etah. The Sessions Judge held that a mother can institute proceedings under Section 125 at the place of her residence and remanded the matter to the Magistrate for disposal on merits. Aggrieved, the revisionist approached the present Court under Section 397, Cr. P.C.; the matter was finally heard at the admission stage with the agreement of the parties.

Legal Issues Presented

Whether a mother (and, by the opinion's general reasoning, a father) can institute proceedings for maintenance under Section 125, Cr. P.C. in the district where she or he resides, notwithstanding the specific wording of clauses (b) and (c) of Section 126(1), Cr. P.C. which refer in terms to the wife or the mother of an illegitimate child.
Whether Section 462, Cr. P.C. (power to amend or disregard irregularities in the interests of justice) can be invoked to sustain the Sessions Judge's revisional order where a jurisdictional objection was taken at the initial stage and the Magistrate dismissed the petition for want of jurisdiction.

Arguments of the Parties

Revisionist's Arguments

A preliminary objection to jurisdiction was pressed: the Etah Court did not have jurisdiction because, the revisionist contended, a mother (or father) can institute proceedings under Section 125 only at the place where the son resides, given the wording of Section 126(1) clauses (b) and (c) which expressly mention the wife or the mother of an illegitimate child but omit the mother/father.
It was also contended (by reliance placed on Sarju Prasad v. Smt. Damyanti) that a stepmother cannot claim maintenance under Section 125; that contention was raised but the Court treated it as going to merits and not to the preliminary jurisdictional issue before the Court.

Opposite Party's Arguments

The Sessions Judge's view (adopted by the opposite party) was that a mother can institute proceedings under Section 125 at the place of her residence; this view formed the basis for allowing the revision and remanding the case for merits.
Reliance was placed on Section 462, Cr. P.C. to argue that even if the petition was instituted at an allegedly wrong place there was only an irregularity and that irregularity should be overlooked because no failure of justice was pleaded or proved.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Sarju Prasad v. Smt. Damyanti, 1984 ALL Cri R 219 : 1984 All LJ 642	Relied upon by the revisionist for the proposition that a stepmother cannot claim maintenance under Section 125, Cr. P.C.	The Court held this contention to be alien to the jurisdictional point before it and left the question of the stepmother's entitlement to be decided by the Magistrate on merits if occasion arises.
Bhagwan Dutt v. Smt. Kamla Devi, (1975) 2 SCR 483 : 1975 Cri LJ 40	Explication of the purpose and spirit of Section 125 (analogous to old Section 488) — to compel moral obligation and to prevent destitution; provisions to be understood as providing a simple, speedy and preventive remedy.	The Court relied on this case to explain the protective, preventive and humanitarian purpose of Section 125 and to support a liberal construction in favour of the helpless claimant.
Savitri W/O Govind Singh Rawat v. Govind Singh Rawat, (1985) 4 SCC 337 : AIR 1986 SC 984	Cited in conjunction with Bhagwan Dutt to support the understanding of Section 125’s purpose and to justify a liberal construction.	Used as supportive authority (via Bhagwan Dutt’s rationale) for interpreting Section 125 and Section 126(1) in a manner that advances the statute's social purpose.
Most. Jagir Kaur v. Jaswant Singh, AIR 1963 SC 1521 : 1963 (2) Cri LJ 413	Observation that proceedings under the relevant provision (old Section 488) are civil in nature, summary and should be liberally construed because the claimant is ordinarily helpless.	The Court invoked this decision to bolster the proposition that the words of the statute should be liberally construed in favour of the helpless claimant and to support the filling of the perceived lacuna in Section 126(1).
Ghulam Hussain v. Most. Hakam Bibi, AIR 1926 Lah 663 : 1926-27 Cri LJ 1009	Cases involving maintenance claims by wives and interpretation of Section 4(488(b)) of the old Code.	Characterised by the Court as distinguishable and not helpful for resolving the present question concerning a parent's right to institute proceedings at her/his residence.
Ram Babu v. Ganga Devi, 1969 All WR 16	Also a case involving maintenance claims by a wife and interpretation of the old Code’s provisions.	Also held to be distinguishable and not useful for answering the jurisdictional question in the present case.
Ananth Gopal Pal v. Gopal Narayan Pal, 1985 Cri LJ 152 (Kant)	Held that a father seeking maintenance can file an application at the place where he resides.	The Court expressly agreed with the reasoning in this case and relied on it as persuasive authority for permitting parents to institute proceedings where they reside.

Court's Reasoning and Analysis

The Court framed the issue as one arising from an apparent lacuna in Section 126(1), Cr. P.C.: Section 125 allows not only a wife and children (legitimate or illegitimate) but also a father or mother to claim maintenance, yet clauses (b) and (c) of Section 126(1) explicitly refer to where "he or his wife resides" or where "he last resided with his wife or ... with the mother of the illegitimate child", omitting any mention of a father or mother as claimants who may sue at their place of residence.

The Court analysed the matter in the light of the statutory purpose of Section 125 (analogous to old Section 488): the provision is intended to be a simple, speedy and limited remedy to compel moral obligations and to prevent destitution and vagrancy of neglected dependants. Because the statute is remedial and protective, its provisions should be liberally construed in favour of helpless claimants so as to effectuate the legislative purpose.

The Court reasoned that the cause of action for a maintenance claim arises where the person claiming maintenance is present and is at risk of destitution. Although it is true that an order, if passed, may be enforced at the defendant's residence, denying a parent the ability to sue at her or his place of residence would frustrate the protective purpose of Section 125: a destitute parent may be unable to pursue proceedings if required to sue only at the child's residence.

Observing that the omission of parents in clauses (b) and (c) was likely accidental or inadvertent, the Court concluded that the proper construction of Section 126(1)(b) is to permit a claimant generally (wife, child, illegitimate child, mother or father) to institute proceedings where she or he resides. The Court found support in the reasoning of prior decisions (Most. Jagir Kaur; Ananth Gopal Pal) that favoured liberal construction and the proposition that a parent may sue at his or her own residence.

On the contention invoking Section 462, Cr. P.C. (to cure any irregularity in the place of institution), the Court rejected its application in the present factual posture. Section 462 may apply to "other proceedings" to overlook irregularities where there has been a failure of justice. But in this case the jurisdictional objection was taken at the initial stage, the Magistrate decided jurisdiction as a preliminary issue and dismissed the petition; the Sessions Judge reversed on jurisdiction and remanded for merits. The Court held that a revisional finding confined to jurisdiction is not the kind of "finding" or order susceptible to being cured by Section 462: the statutory key is "failure of justice," and when a jurisdiction question is raised at the outset Section 462 does not apply to uphold an order that resolved only jurisdiction.

Holding and Implications

HOLDING: The Court dismissed the revision. Substantively, the Court held that the apparent lacuna in Section 126(1) must be filled to give effect to the intention of Parliament: clauses of Section 126(1) should be construed liberally so as to enable a claimant generally — whether wife, child, illegitimate child, mother or father — to institute proceedings under Section 125, Cr. P.C. in the district where she or he resides. The Court expressly concluded that a mother can file an application for maintenance under Section 125 in the district where she resides.

Direct effect on the parties: The revision by the son (revisionist) was dismissed and the Magistrate, who is already seized of the proceedings, was directed to proceed to decide the maintenance application on merits.

On broader implications: The Court's reasoning fills the identified lacuna in Section 126(1) by judicial construction in order to further the remedial and preventive purpose of Section 125; the opinion therefore affects the question of the appropriate forum for parents seeking maintenance by allowing parents to sue at their place of residence. The Court also clarified that Section 462, Cr. P.C. cannot be used to cure a jurisdictional error raised at the outset where no finding on merits has been made; thus the decision limits the use of Section 462 in such circumstances.

Note: The contention that a stepmother cannot claim maintenance (reliance on Sarju Prasad) was treated as a merits question and left for decision by the Magistrate on the merits; the Court did not decide that question in this revision.

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Ganga Sharan Varshney v. Shakuntala Devi

1. This revision underS. 397, Cr. P.C 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. Opp. Party No. 1 Smt. Shakuntala Devi is resident of District Etah. She filed application for maintenance under S. 125, Cr. P.C 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 S. 126(1), Cr. P.C and found that the mother can institute proceedings under S. 125, Cr. P.C only at the place where the son resides. Opp. Party Smt. Shakuntala Devi challenged the decision of the Maistrate in revision before the Sessions Judge, Etah, who held that the mother can institute proceedings under S. 125, Cr. P.C at the place of her residence also and so Etah Court has jurisdiction to hear the petition under S. 125, Cr. P.C Sessibns Judge allowed the revision and remanded the case to Magistrate for disposal on merits.

2. Being aggrieved the revisionist has come to this Court.

3. Before proceeding further it may be mentioned that one of the contentions raised on behalf of the revisionist was that a stepmother cannot claim maintenance under S. 125, Cr. P.C and reliance was placed on the case of Sarju Prasad v. Smt. Damyanti, 1984 ALL Cri R 219 : (1984 All LJ 642). 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.

4. Question arising in this case has attained importance because of lacuna in S. 126(1), Cr. P.C.S 125, Cr. P.C entitles not only the wife or legitimate or illegitimate children to claim maintenance but also father or mother unable to maitnain himself or herself Only the new Code has enabled father or mother to claim maintenance. S. 126(1), Cr. P.C runs as under:—

“(1) Proceedings under S. 125 may be taken against any person in any district—

(a) where he is, or

(b) where he or his wife resides, or

5. It is obvious that Cls. (b) and (c) are confined to wife or the mother of the illegitimate child. Although S. 125 enables father or mother to claim maintenance yet in Cls. (b) and (c) of S. 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 under S. 125, Cr. P.C only where the son is.

6. This contention is, however, repugnant to the spirit or the purpose of S. 125 which in spirit and purpose is analogous to S. 488 of the old Code. For ascertaining the purpose and spirit of S. 125, the case of Bhagwan Dutt v. Smt. Kamla Devi, (1975) 2 SCR 483 : (1975 Cri LJ 40) relied upon in the case of Savitri W/O Govind Singh Rawat; v. Govind Singh Rawat, (1985) 4 SCC 337 : AIR 1986 SC 984 : (1986 Cri LJ 41) can be cited with advantage (Para 5):—

“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 destituted on the scrap-heep of society and thereby driven to a life of vagrancy, immorality and crime for their subsistence. Thus S. 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.”

7. Generally speaking proceedings whether civil, quasi-civil or quasi-criminal can be instituted where cause of action arises. When the social purpose of S. 125, Cr. P.C is to prevent vagrancy and destitution the cause of action for proceedings under S. 125, Cr. P.C 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 principal should apply.

8. Case of Most. Jagir Kaur v. Jaswant Singh, AIR 1963 SC 1521 : (1963 (2) Cri LJ 413) was a case of maintenance between wife and husband. But even in this case with respect to the proceedings under S. 488 of the old Code it was observed (Para 5):—

“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.”

9. Section 488 of the old Criminal Procedure Code enabled only the wife, children or illegitimate children to claim maintenance against the husband or lather of the children. S. 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 illegilmate child.”

10. 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 prceedings where he or she resides and therefore in CI. (b) of S. 126(1) the Parliament introduced where he or his wife resides But in his 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, omission of mother or father in the said clause is accidental or inadvertent. 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.

11. Facts of the case of Most. Jagir Kaur v. Jaswant Singh, (1963 (2) Cri LJ 413 (SC)) (supra). Ghulam Hussain v. Most. Hakam Bibi, AIR 1926 Lah 663 : (1926-27 Cri LJ 1009) and Ram Babu v. Ganga Devi, 1969 All WR 16 are altogether distinguishable. They involve claim of maintenance by the wife from the husband and interpretation of S. 4(488(b) of the old Code. They do not render help in answering the question arising in this case.

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

13. in the case of Ananth Gopal Pal v. Gopal Narayan Pal, 1985 Cri LJ 152 (Kant), it was held that father seeking maintenance can file application at the place where he 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 pursue her case. On the other hand the son having pecuniary resources can certainly contest the case against herat the place where the mother resides. The intention of the legislature behind S. 125. Cr. P.C is to provide against vagrancy and, destitution.

14. Keeping in view the intention of the Parliament behind. CI. (b) of S. 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 under S. 125 of the new Cr. P.C in the district where she resides.

15. On behalf of the opposite party reliance was placed on S. 462. Cr. P.C 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 under 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. S. 462 of the new Code corresponding with S. 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 Session Judge took contrary view and passed order requiring the Magistrate to decide the maintenance application of the mother on merits. Proceeding under S. 125. Cr. P.C is no doubt, covered by ‘other proceedings’ as found in S. 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 S. 462. Keynote for applying S. 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, S. 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 under S. 462.

16. In result revision is dismissed. Learned Magistrate seized of the proceedings shall proceed to decide the case on merits.

17. Revision dismissed.

Ganga Sharan Varshney v. Shakuntala Devi

Structured Summary of the Opinion (Revision under S. 397, Cr. P.C.)

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Revisionist's Arguments

Opposite Party's Arguments

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Ganga Sharan Varshney v. Shakuntala Devi

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