No Acts & Articles mentioned in this case
1
A.F.R.
Neutral Citation No. 2024:AHC:89029
Court No. 80
Case : MATTERS UNDER ARTICLE 227 No. 6584 of 2023
Petitioner : Smt. Hema And Another
Respondent : State of U.P. and Another
Counsel for Petitioner : Sujan Singh
Counsel for Respondent : G.A.,Niharika Dubey,Vishakha Dubey
Hon'ble Dr. Yogendra Kumar Srivastava,J.
1. Heard Sri Sujan Singh, learned counsel for the petitioners, Sri
Pankaj Saxena, learned A.G.A.I appearing for the State
respondent and Ms. Niharika Dubey, learned counsel appearing for
the respondent no. 2.
2. The present petition has been filed seeking to assail the order
dated 02.01.2023 passed by the Principal Judge, Family Court,
Agra in Misc. Case No. 2053 of 2022, under Section 125 Cr.P.C.,
arising out of Maintenance Case No. 783 of 2014 (Smt. Hema and
another Vs. Dhirendra Pratap Singh).
3. The order dated 02.01.2023, which is subject matter of
challenge in the present petition, was passed upon an application
No. 3A filed by the petitioners seeking a recall of an earlier order
dated 29.10.2022 and to restore the case to its original number.
4. The aforesaid application was dismissed by the Principal Judge,
Family Court stating that after dismissal of an application under
Section 125 Cr.P.C., no application seeking restoration of the case
was entertainable. It was also observed that the petitioner could
file a second application under Section 125 Cr.P.C.
5. Attention of the Court has been drawn to the factual aspects of
the case by pointing out that the proceedings under Section 125
2
Cr.P.C. were instituted by filing a maintenance petition on
05.09.2014, which was allowed exparte by an order dated
08.09.2016, in terms whereof an amount of Rs. 10,000/ per
month had been awarded in favour of the petitioner no. 1, and an
amount of Rs. 2,000/ in favour of the petitioner no. 2.
6. It is stated that the aforesaid ex parte order was recalled by a
subsequent order dated 26.11.2018, upon an application by the
respondent no. 2.
7. It is submitted that, on 29.10.2022, which was the date fixed in
the case, the petitioner upon reaching the court was informed that
the case had been taken up and an order had been passed
dismissing the maintenance petition for nonprosecution.
Immediately thereupon, on the same date, the petitioners are
stated to have moved a restoration application seeking recall of the
order. The restoration application was taken up, on 02.01.2023,
and the same was dismissed.
8. Aggrieved by the aforesaid order, the present petition has been
preferred.
9. Contention of the counsel for the petitioners is that there was
no want of bona fides or lack of diligence on part of the petitioners
and the conclusion drawn by the court to the contrary, is
erroneous.
10. It is submitted that the restoration application having been
moved, on the same date, the court concerned ought to have
allowed the same, in the interest of justice.
11. As regards the conclusion drawn by the court concerned with
regard to the restoration application being not entertainable, in
proceedings under Section 125 Cr.P.C., it is urged that same
3
would not be legally sustainable. To support the aforesaid
submission, reliance, in this regard, has been placed on decisions
in Kusum Devi Vs. Ram Chandra Maurya
1
; Kehari Singh Vs.
State of U.P.
2
; Jagmohan Arora Vs. Saroj Arora
3
; Suhird Kamra
Vs. Neeta and Another
4
and Sanjeev Kapoor Vs. Chandana
Kapoor and Others
5
.
12. Counsel appearing for the respondent no. 2 has sought to
contend that the petitioners having moved a second application
seeking maintenance, which is pending, there would be no
plausible reason for them to seek restoration of the earlier
application.
13. In this regard, learned counsel for the petitioners has drawn
attention of the Court to the specific assertion in the petition
wherein the petitioners have undertaken that in the event of the
earlier maintenance petition being restored to its original number,
the petitioners would withdraw the second application filed for the
purpose.
14. The principal question, which falls for consideration, is as to
whether, in proceedings under Section 125 Cr.P.C., upon an order
having been made, the court concerned can be held to be functus
officio for the purposes of entertaining an application seeking
recall, and that any application which has been moved for recall of
an order rejecting the maintenance petition for nonprosecution,
would amount alteration of the judgment so as to barred by
Section 362 Cr.P.C.
15. For ease of reference, the provisions contained under Sections
1 2004 1 Crimes(HC) 153
2 2005 0 CrLJ 2330
3 2011 LawSuit(Del) 2381
4 1988 (14) DRJ 282
5 (2020) 13 SCC 172
4
125(1), 125(5) and 127 Cr.P.C. relating to orders for maintenance
of wives, children and parents, under ChapterIX of the Cr.P.C. are
being extracted below:
"125. 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 or illegitimate minor child, whether married or not,
unable to maintain itself, or
(c) his legitimate or illegitimate child (not being a married daughter)
who has attained majority, where such child is, by reason of any
physical or mental abnormality or injury unable to maintain itself, or
(d) his father or mother, unable to maintain himself or herself,
a Magistrate of the first class may, upon proof of such neglect or
refusal, order such person to make a monthly allowance for the
maintenance of his wife or such child, father or mother, at such
monthly rate, as such Magistrate thinks fit, and to pay the same to
such person as the Magistrate may from time to time direct:
Provided that the Magistrate may order the father of a minor female child
referred to in clause (b) to make such allowance, until she attains her
majority, if the Magistrate is satisfied that the husband of such minor female
child, if married, is not possessed of sufficient means:
Provided further that the Magistrate may, during the pendency of the
proceeding regarding monthly allowance for the maintenance under this sub
section, order such person to make a monthly allowance for the interim
maintenance of his wife or such child, father or mother, and the expenses of
such proceeding which the Magistrate considers reasonable, and to pay the
same to such person as the Magistrate may from time to time direct:
Provided also that an application for monthly allowance for the interim
maintenance and expenses of proceeding under the second proviso shall, as
far as possible, be disposed of within sixty days from the date of the service of
the notice of the application to such person.
Explanation. – For the purposes of this Chapter, –
(a) "minor" means a person who, under the provisions of the Indian
Majority Act, 1875 (9 of 1875) is deemed not to have attained his
majority;
(b) "wife" includes a woman who has been divorced by, or has
obtained a divorce from, her husband and has not remarried.
* * *
(5) On proof that any wife in whose favour an order has been made under
this section is living in adultery, or that without sufficient reason she refuses
5
to live with her husband, or that they are living separately by mutual consent,
the Magistrate shall cancel the order.
127. Alteration in allowance. – (1) On proof of a change in the
circumstances of any person, receiving, under section 125 a monthly
allowance 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 where such sum was paid before such order, from
the date on which such order was made,
(ii) in any other case, from the date of expiry of the period, if
any, for which maintenance has been actually paid by the
husband to the woman;
(c) the woman has obtained a divorce from her husband and that she
had voluntarily surrendered her rights to maintenance or interim
maintenance, as the case may be after her divorce, cancel the order
from the date thereof.
(4) At the time of making any decree for the recovery of any maintenance or
dowry by any person, to whom monthly allowance for the maintenance and
interim maintenance or any of them has been ordered to be paid under
section 125, the civil court shall take into account that sum which has been
paid to, or recovered by, such person as monthly allowance for the
maintenance and interim maintenance or any of them, as the case may be, in
pursuance of the said.”
16. Section 362 of the Cr.P.C., which creates an embargo on the
court not to alter the judgment, would also be required to be
adverted, and the same is reproduced below:
"Section 362.Court not to alter judgement. Save as otherwise provided by
this Code or by any other law for the time being in force, no Court, when it
6
has signed its judgment or final order disposing of a case, shall alter or review
the same except to correct a clerical or arithmetical error."
17. Section 125(1) Cr.P.C. which empowers the Magistrate to pass
an order for maintenance of wives, children and parents, uses the
expression 'as the Magistrate may from time to time direct', which
is indicative that while passing an order under Section 125(1)
Cr.P.C., the Magistrate may have to exercise jurisdiction, as
required, from time to time
18. Section 127(1) Cr.P.C. contains a provision relating to
alteration in allowance, and in terms thereof, the Magistrate is
empowered to alter an order passed under Section 125. In terms
of sub section (2) of Section 127, the Magistrate is empowered to
cancel or vary the order passed under Section 125 Cr.P.C.
19. The legislative scheme contained under Section 125 and 127
Cr.P.C., referred to above, indicates that that while making an
order for maintenance under Section 125(1) Cr.P.C., the
Magistrate may be required to exercise jurisdiction, from time to
time, upon fulfillment of the conditions specified thereunder.
Section 127 Cr.P.C. contemplates situations wherein the
Magistrate may pass an order cancelling or varying the earlier
order made under Section 125 Cr.P.C.
20. The aforementioned provisions under Sections 125(1) and 127
Cr.P.C., which empower the Magistrate to exercise jurisdiction for
passing of orders from time to time, as the occasion requires, and
also varying or cancelling the order, would go to show that as per
the legislative scheme contained under Sections 125 and 127
Cr.P.C., the Magistrate after passing of the judgment or final order,
in proceedings under Section 125 Cr.P.C., cannot be said to have
become functus officio.
7
21. This brings us to the question as to whether the embargo
contained in Section 362 Cr.P.C. prohibiting the court to alter or
review its judgment or final order disposing of the case, would be
applicable to an order of maintenance under Section 125 Cr.P.C.
22. In Sanjeev Kapoor Vs. Chandana Kapoor and others
6
, after
examining the legislative scheme as delineated by Sections 125
and 127 Cr.P.C., and the express provisions where an order passed
thereunder can be cancelled or altered, it was held that the
embargo as contained in Section 362 Cr.P.C. is relaxed in
proceedings under Section 125 Cr.P.C. The observations made in
the judgment, in this regard, are as follows:
"25. In Section 125 CrPC the expression used is "as the Magistrate may from
time to time direct". The use of the expression "from time to time" has purpose
and meaning. It clearly contemplates that with regard to the order passed
under Section 125(1) CrPC, the Magistrate may have to exercise jurisdiction
from time to time. Use of the expression "from time to time" is in exercise of
jurisdiction of the Magistrate in a particular case. Advanced Law Lexicon by P.
Ramanatha Aiyar, 3rd Edn. defines "time to time" as follows:
"Time to time. As occasion arises."
26. The above legislative scheme indicates that the Magistrate does not
become functus officio after passing an order under Section 125 CrPC, as and
when the occasion arises the Magistrate exercises the jurisdiction from time to
time. By Section 125(5) CrPC, the Magistrate is expressly empowered to
cancel an order passed under Section 125(1) CrPC on fulfilment of certain
conditions.
27. Section 127 CrPC also discloses the legislative intendment where the
Magistrate is empowered to alter an order passed under Section 125 CrPC.
Subsection (2) of Section 127 CrPC also empowers the Magistrate to cancel
or vary an order under Section 125. The legislative scheme as delineated by
Sections 125 and 127 CrPC as noted above clearly enumerated the
circumstances and incidents provided in the Code of Criminal Procedure
where the court passing a judgment or final order disposing of the case can
alter or review the same. The embargo as contained in Section 362 is, thus,
clearly relaxed in the proceedings under Section 125 CrPC as indicated
above."
23. The scope of Section 362 Cr.P.C. was also considered, and it
was held that the rigour contained in the section, is relaxed in two
6 (2020) 13 SCC 172
8
conditions, that is to say, where power to alter or review a
judgment or final order is provided either; (i) by the Code of
Criminal Procedure itself, or (ii) any other law for the time being
in force. As regards the embargo put on the criminal court to alter
or review its judgment, it was observed that the same is with a
purpose and object. Referring to the earlier decisions in Sankatha
Singh v. State of U.P.
7
, Sooraj Devi vs. Pyare Lal
8
, Simrikhia v.
Dolley Mukherjee
9
, Hari Singh v. Harbhajan Singh Bajwa
10
,
State v. K.V. Rajendran
11
, Mahua Biswas v. Swagata Biswas
12
;
and the law summarized therein, it was observed that criminal
justice delivery system does not clothe criminal courts with power
to alter or review a judgment or final order disposing of a case
except to correct the clerical or arithmetical errors.
24. In order to examine the extent to which the rigour of the
embargo as contained in Section 362 Cr.P.C., would be relaxed in
the context of the powers to be exercised in proceedings relating
to passing of maintenance orders under Section 125 Cr.P.C., it
would be necessary to take a view of the legislative scheme
contained in Sections 125 to 127 Cr.P.C.
25. The scope of the legislation relating to maintenance under
Section 125 Cr.P.C. and its social objective was examined in
Badshah v. Urmila Badshah Godse
13
and applying the principle
of purposive interpretation, it was held that in the context of a
'social justice legislation', the Court must give effect to that
construction, which would be responsible for smooth functioning
of the system for which the statute had been enacted. It was
7 AIR 1962 SC 1208
8 (1981) 1 SCC 500
9 (1990) 2 SCC 437
10 (2001) 1 SCC 169
11 (2008) 8 SCC 673
12 (1998) 2 SCC 359
13 (2014) 1 SCC 188
9
observed as follows:
"13.3. ... in such cases, purposive interpretation needs to be given to
the provisions of Section 125 Cr.P.C. While dealing with the application of a
destitute wife or hapless children or parents under this provision, the Court is
dealing with the marginalised sections of the society. The purpose is to
achieve "social justice" which is the constitutional vision, enshrined in the
Preamble of the Constitution of India. The Preamble to the Constitution of
India clearly signals that we have chosen the democratic path under the rule
of law to achieve the goal of securing for all its citizens, justice, liberty,
equality and fraternity. It specifically highlights achieving their social justice.
Therefore, it becomes the bounden duty of the courts to advance the cause of
the social justice. While giving interpretation to a particular provision, the
court is supposed to bridge the gap between the law and society.
14. Of late, in this very direction, it is emphasised that the courts have
to adopt different approaches in "social justice adjudication", which is also
known as "social context adjudication" as mere "adversarial approach" may
not be very appropriate. There are number of social justice legislations giving
special protection and benefits to vulnerable groups in the society. Prof.
Madhava Menon describes it eloquently:
'It is, therefore, respectfully submitted that “social context judging” is
essentially the 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 socialeconomic 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.'
14
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.”
26. The role and duty of Court, in the context of change in law
with change in society, was explained, and referring to the
observations made by Benjamin N. Cardozo
15
, and also the
observations made in Gray's Lectures on 'The Nature and
14Keynote address on “Leagal Education in Social Context” delivered at National Law
University, Jodhpur on October 12, 2005.
15 Benjamin N. Cardozo: The Nature of Judicial Process
10
Sources of the Law
16
, the following observations were made:
16. The law regulates relationships between people. It prescribes
patterns of behaviour. It reflects the values of society. The role of the court is
to understand the purpose of law in society and to help the law achieve its
purpose. But the law of a society is a living organism. It is based on a given
factual and social reality that is constantly changing. Sometimes change in
law precedes societal change and is even intended to stimulate it. In most
cases, however, a change in law is the result of a change in social reality.
Indeed, when social reality changes, the law must change too. Just as change
in social reality is the law of life, responsiveness to change in social reality is
the life of the law. It can be said that the history of law is the history of
adapting the law to society's changing needs. In both constitutional and
statutory interpretation, the court is supposed to exercise discretion in
determining the proper relationship between the subjective and objective
purposes of the law.
17. Cardozo acknowledges in his classic
'… no system of jus scriptum has been able to escape the need of it.'
and he elaborates:
'It is true that codes and statutes do not render the Judge superfluous,
nor his work perfunctory and mechanical. There are gaps to be filled. …
There are hardships and wrongs to be mitigated if not avoided. Interpretation
is often spoken of as if it were nothing but the search and the discovery of a
meaning which, however obscure and latent, had nonetheless a real and
ascertainable preexistence in the legislator's mind. The process is, indeed,
that at times, but it is often something more. The ascertainment of intention
may be the least of a Judge's troubles in ascribing meaning to a statute. …
Says Gray in his lectures:
"The fact is that the difficulties of socalled interpretation arise when
the legislature has had no meaning at all; when the question which is raised
on the statute never occurred to it; when what the Judges have to do is, not
to determine that the legislature did mean on a point which was present to its
mind, but to guess what it would have intended on a point not present to its
mind, if the point had been present." '
18. The court as the interpreter of law is supposed to supply omissions,
correct uncertainties, and harmonise results with justice through a method of
free decision — libre recherch
é scientifique
i.e. "free scientific research". We are
of the opinion that there is a nonrebuttable presumption that the legislature
while making a provision like Section 125 Cr.P.C., 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.”
27. The proposition that for construing an enactment effort should
be made to give effect to the legislative purpose, has been
16 John Chipman Gray: The Nature and Sources of the Law
11
consistently followed. In this regard, reference may be had to the
decision in R (on the application of Quintavalle) Vs. Secretary
of State for Health
17
, wherein the following observations were
made:
"8. The basic task of the Court is to ascertain and give
effect to the true meaning of what Parliament has said in
the enactment to be construed. ... Every statute other
than a pure consolidating statute is, after all, enacted to
make some change, or address some problem, or remove
some blemish, or effect some improvement in the
national life. The Court's task, within the permissible
bounds of interpretation, is to give effect to Parliament's
purpose. So the controversial provisions should be read
in the context of the statute as a whole, and the statute
as a whole should be read in the historical context of the
situation which led to its enactment.''
28. Similar observations were made in Stock Vs. Frank Jones
(Tipton) Ltd.
18
, wherein wherein referring to the rule in Hydon's
case, it was held as follows:
''Words and phrases of the English language have an
extraordinary range of meaning. This has been a rich
resource in English poetry (which makes fruitful use of
the resonances, overtones and ambiguities), but it has a
concomitant disadvantage in English law (which seeks
unambiguous precision, with the aim that every citizen
shall know, as exactly as possible, where he stands under
the law). The first way says Lord Blackburn, of
eliminating legally irrelevant meanings is to look to the
statutory objective. This is the wellknown canon of
construction . . . which goes by the name of ''the rule in
Heydon's Case'' (1584) 3 Co. Rep. 7b. (Nowadays we
speak of the ''purposive'' or ''functional'' construction of a
statute.)''
29. The provisions with regard to grant of maintenance under
Section 125 Cr.P.C. and the duty of the husband towards the wife
in regard thereof, came up for consideration in the case of
Bhuwan Mohan Singh vs. Meena & others
19
, and referring to the
earlier decisions in Smt. Dukhtar Jahan v. Mohammed Farooq
20
,
17(2003) 2 All ER 113 (UK House of Lords)
18(1978) 1 WLR 231 (UK House of Lords)
19(2015) 6 SCC 353
20(1987) 1 SCC 624
12
Vimala (K.) v. Veeraswamy (K.)
21
and Kirtikant D. Vadodaria v.
State of Gujarat
22
it was held that the proceedings are summary
in nature and they intend to provide a speedy remedy and achieve
a social purpose. The observations made in the judgement in this
regard are as follows :
"7. We are obliged to reiterate the principle of law how a
proceeding under Section 125 of the Code has to be dealt
with by the court, and what is the duty of a Family Court
after establishment of such courts by the Family Courts Act
1984. In Smt. Dukhtar Jahan v. Mohammed Farooq (1987)
1 SCC 624, the Court opined that: (SCC p. 631, para 16)
"16. .....Proceedings under Section 125 of the
Code, it must be remembered, are of a summary
nature and are intended to enable destitute wives
and children, the latter whether they are
legitimate or illegitimate, to get maintenance in a
speedy manner."
8. A threeJudge Bench in Vimala (K.) v. Veeraswamy (K.)
(1991) 2 SCC 375, while discussing about the basic
purpose under Section 125 of the Code, opined that: (SCC
p. 378, para 3)
"3. Section 125 of the Code of Criminal Procedure
is meant to achieve a social purpose. The object is
to prevent vagrancy and destitution. It provides a
speedy remedy for the supply of food, clothing
and shelter to the deserted wife.
9. A twoJudge Bench in Kirtikant D. Vadodaria v. State of
Gujarat (1996) 4 SCC 479, while adverting to the
dominant purpose behind Section 125 of the Code, ruled
that: (SCC p. 489, para 15)
"15. ... While dealing with the ambit and scope of
the provision contained in Section 125 of the
Code, it has to be borne in mind that the
dominant and primary object is to give social
justice to the woman, child and infirm parents
etc. and to prevent destitution and vagrancy by
compelling those who can support those who are
unable to support themselves but have a moral
claim for support. The provisions in Section 125
provide a speedy remedy to those women,
children and destitute parents who are in
distress. The provisions in Section 125 are
21(1991) 2 SCC 375
22(1996) 4 SCC 479
13
intended to achieve this special purpose. The
dominant purpose behind the benevolent
provisions contained in Section 125 clearly is that
the wife, child and parents should not be left in a
helpless state of distress, destitution and
starvation."
30. The principle of applying a liberal construction to a remedial
legislation such as the one above, has been emphasised in the
Construction of Statues by Crawford
23
in the following terms:
"...Remedial statutes, that is, those which supply defects,
and abridge superfluities, in the former law, should be
given a liberal construction, in order to effectuate the
purposes of the legislature, or to advance the remedy
intended, or to accomplish the object sought, and all
matters fairly within the scope of such a statute be
included, even though outside the letter, if within its spirit
or reason."
31. To a similar effect is the observation made by Blackstone in
Construction and Interpretation of Laws
24
, which is as under:
"It may also be stated generally that the courts are more
disposed to relax the severity of this rule (which is really a
rule of strict construction) in the case of statutes
obviously remedial in their nature or designed to effect a
beneficent purpose."
32. In the context of 'beneficial construction' as a principle of
interpretation, it has been observed in Maxwell on The
Interpretation of Statutes
25
, as follows:
"...where they are faced with a choice between a wide
meaning which caries out what appears to have been the
object of the legislature more fully, and a narrow meaning
which carries it out less fully or not at all, they will often
choose the former. Beneficial construction is a tendency,
rather than a rule."
33. The principle of applying a liberal construction to a beneficial
legislation having a social welfare purpose was reiterated in the
case of Allahabad Bank & Anr. Vs. All India Allahabad Bank
23The Constitution of Statutes by Earl T. Crawford, pp. 492493
24Construction and Interpretation of Laws by Blackstone
25Maxwell on The Interpretation of Statutes, 12
th
Edition by P. St. J. Langan
14
Retired Employees Association
26
, and it was observed as
follows:
"16. ...Remedial statutes, in contradistinction to penal
statutes, are known as welfare, beneficent or social justice
oriented legislations. Such welfare statutes always receive
a liberal construction. They are required to be so
construed so as to secure the relief contemplated by the
statute. It is well settled and needs no restatement at our
hands that labour and welfare legislation have to be
broadly and liberally construed having due regard to the
Directive Principles of State Policy. The Act with which
we are concerned for the present is undoubtedly one such
welfare oriented legislation meant to confer certain
benefits upon the employees working in various
establishments in the country."
34. Reference may also be had to the case of Bharat Singh Vs.
Management of New Delhi Tuberculosis Centre, New Delhi &
Ors.
27
, where purposive interpretation safeguarding the rights of
havenots was preferred to a literal construction in interpreting a
welfare legislation, and it was held as follows:
"11. ...the court has to evolve the concept of purposive
interpretation which has found acceptance whenever a
progressive social beneficial legislation is under review.
We share the view that where the words of a statute are
plain and unambiguous effect must be given to them.
Plain words have to be accepted as such but where the
intention of the legislature is not clear from the words or
where two constructions are possible, it is the court's duty
to discern the intention in the context of the background
in which a particular Section is enacted. Once such an
intention is ascertained the courts have necessarily to give
the statute a purposeful or a functional interpretation.
Now, it is trite to say that acts aimed at social
amelioration giving benefits for the havenots should
receive liberal construction. It is always the duty of the
court to give such a construction to a statute as would
promote the purpose or object of the Act. A construction
that promotes the purpose of the legislation should be
preferred to a literal construction. A construction which
would defeat the rights of the havenots and the underdog
and which would lead to injustice should always be
avoided..."
26(2010) 2 SCC 44
27(1986) 2 SCC 614
15
35. The Court's function, in view of the foregoing discussion,
would thus be to construe the words used in an enactment, so far
as possible, in a way which best gives effect to the purpose of the
enactment.
36. Chapter IX of the Code of Criminal Procedure, 1973 contains
provisions for making orders for maintenance of wives, children
and parents. The subject matter of the provisions contained under
the chapter though essentially of a civil nature, the justification for
their inclusion in the Cr.P.C., is to provide a more speedy and
economical remedy than that available in civil courts for the
benefit of the persons specified therein.
37. The proceedings for maintenance under Section 125 Cr.P.C.
are of a summary nature and the purpose and object of the same is
to provide immediate relief to the applicant.
38. The legislative scheme contained under Sections 125 to 127
Cr.P.C. being in the nature of a benevolent provision having a
social purpose with the primary object to ensure social justice to
the wife, child and parents, who are unable to support themselves
so as to prevent destitution and vagrancy, the provisions contained
therein have to be interpreted in a beneficent way so as to
subserve the object of the enactment rather that to negate it.
39. The embargo under Section 362 Cr.P.C., when read in the
context of the provisions of Sections 125127 Cr.P.C., would have
to be understood in a manner so as to advance the social object of
the legislation rather than to whittle it down. It may be noticed
that the embargo put by Section 302 on the court to alter or
review its judgment or final order disposing of the case, is subject
to certain exceptions contained therein. The legislature, was,
16
perhaps conscious that there may arise situations where altering or
reviewing of a judgment would be contemplated under the
provisions of the Code itself or any other law for time being in
force, which is perhaps the reason that the exceptions to the
general embargo, have been engrafted in the section itself.
40. In a situation where there is possibility of adopting differing
constructions of a statutory provision, the duty of the court,
applying the principle of purposive construction, would be to give
effect to that construction which would advance the object for
which the enactment has been made rather than to adopt that
construction which would reduce the legislation to a futility.
41. It is beyond question, the duty of courts, in construing statutes,
to give effect to the intent of the law makers and to seek for that
intent in every way. The object and interpretation of construction
of statutes is to ascertain the meaning of the legislation and to
ensure that the provisions are interpreted so as to subserve that
intent. There is a general presumption that an enactment has to be
given a purposive interpretation with a construction that best gives
effect to the purpose of the enactment.
42. The provision relating to orders for maintenance under Section
125 Cr.P.C., being in the nature of a 'social justice legislation', the
role and duty of the Courts, in the said context, would be to
understand the purpose of the enactment and to help the law
achieve its objective.
43. Taking into the view the social objective of the legislative
scheme with regard to grant of orders for maintenance, under
Chapter IX of the Cr.P.C., and applying the principle of purposive
construction, the provisions contained under Sections 125127
17
when read in conjunction with Section 362, would lead to the
conclusion that the embargo contained under Section 362, is
expressly relaxed in proceedings under Section 125 Cr.P.C.
44. The embargo contained in Section 362 having been held to be
relaxed in proceedings under Section 125 and the court having not
become functus officio after passing of the final order, the recall
application which had been filed seeking restoration of the case,
could not have been rejected by assigning a reason that the Court
was not empowered to entertain the same.
45. The order dated 02.01.2023 passed by the Principal Judge,
Family Court, Agra in Misc. Case No. 2053 of 2022, in
Maintenance Case No. 783 of 2014, is therefore unsustainable,
and is, accordingly, set aside.
46. The matter is remitted to the court concerned for passing of a
fresh order on the recall application, in the light of the
observations made above.
47. The court concerned would be expected to make an endeavour
to dispose of the recall/restoration application as expeditiously as
possible.
48. The petition stands allowed to the extent as indicated
above.
Order Date : 16.5.2024
Arun K. Singh/Aiman
[Dr. Y.K. Srivastava, J.]
Legal Notes
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