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Sanjeev Kapoor v. Chandana Kapoor - (Supreme Court) (19 Feb 2020)

A Magistrate who passes an order on settlement under Section 125 of CrPC has power to recall or set aside the Order, if terms of the same are violated



Present appeal has been filed against the judgment of the High Court filed by the Appellant for setting aside the order passed by the Additional Principal Judge, Family Court. The High Court dismissed the petition filed under Section 482 of Code of Criminal Procedure, 1973 (CrPC) by the Appellant.

The Appellant submits that, the application under Section 125 of CrPC filed by Respondent No.1 having been finally decided by order by the learned District Judge, Family Court, Family Court had no jurisdiction to set aside the order. The impugned order is without jurisdiction and is in the teeth of provision of Section 362 of CrPC. Whether the embargo contained in under Section 362 of CrPC prohibiting the Court to alter or review its judgment or final order disposing the case applies to order passed under Section 125 of CrPC is the question to be answered in the present case.

Section 125 of CrPC is a social justice legislation which order for maintenance for wives, children and parents. Maintenance of wives, children and parents is a continuous obligation enforced. The closer look of Section 125 of CrPC itself indicates that, the Court after passing judgment or final order in the proceeding under Section 125 of CrPC does not become functus officio. The Section itself contains express provisions where order passed under Section 125 of CrPC can be cancelled or altered.

Magistrate does not become functus officio after passing an order under Section 125 Cr.P.C., as and when occasion arises the Magistrate exercises the jurisdiction from time to time. By Section 125(5) CrPC, Magistrate is expressly empowered to cancel an order passed under Section 125(1) of CrPC on fulfilment of certain conditions.

It has come on the record that after passing of the order on settlement, the Appellant according to his own case has paid only an amount of One Lakh Rupees, i.e. maintenance of four months after May 2017. The arrears from July, 2015 to April 2017 has not been paid by the Appellant within six months which was time allowed by the Court. The Appellant did not honour its commitment under settlement. wife cannot be left in lurch by not able to press for grant of maintenance on non-compliance by the Appellant. Section 125 of CrPC has to be interpreted in a manner as to advance justice and to protect a woman for whose benefit the provisions have been engrafted.

The order passed in present case by Family Court reviving the maintenance application of the wife under Section 125 of CrPC by setting aside order passed on settlement is not hit by the embargo contained in Section 362 of CrPC. The submission of learned senior counsel for the Appellant that Section 362 of CrPC prohibit the Magistrate to pass the order cannot be accepted.

The High Court did not commit an error in rejecting the application filed by appellant under Section 482 of CrPC. The inherent powers of the High Court given under Section 482 of CrPC are to be exercised to secure the ends of justice. The Family Court in passing order has done substantial justice in reviving the maintenance application of the wife which needs no interference by the High Court. The appeal is dismissed.


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