- The proceedings under Section 488 of the Old Code are quasi-civil in nature but that does not mean that the Magistrate dealing with them gets all the powers of a civil court or that all the rules governing the civil proceedings can be imported.
- Though Section 125 benefits a distressed father also, main thrust of the provision is to assist women and children in distress. That is fully consistent with Article 15(3) of the Constitution which states that the prohibition contained in the Article shall not prevent the State from making any special provision for women and children. We take note of Article 39 of the Constitution which states, inter alia, that the State shall, in particular, direct its policy towards securing that the citizens, men and women equally, have the right to an adequate means to livelihood, that children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and that childhood and youth are protected against exploitation and against moral and material abandonment. See Bai Tahira v. All Hussain Fissali, AIR 1979 SC 362 : (1979 Cri LJ 151) and Jagir Kaur v. Jaswant Singh, AIR 1963 SC 1521 : (1963 (2) Cri LJ 413). The provision is a measure of social justice and specially enacted to protect women and children. As the Supreme Court observed in Ramesh Chander v. Veena Kaushal, AIR 1978 SC 1807 : (1979 Cri LJ 3), the brooding presence of the constitutional empathy for the weaker sections like women and children must inform interpretation if it has to have social relevance.
- There can be no quarrel with the proposition that a person summoned under the Code has to be served in the manner provided in the aforesaid Sections 62 to 66 but there is no legal bar to the service of the summons on a person by a registered post in addition to the prescribed mode, as the whole object is to make the person summoned aware of the proceedings being taken against him. The same principle of law laid down in Sunil Kumar Phukan v. Mt. Pratima Buragohain, 1973 Cri LJ 401 (Gauhati). It is true that if the mode laid down in Sections 62 to 66 of the Code for effecting service is not at all resorted to by the Court, then an argument would be available that no proper service has been effected on the opposite party as the mode of service laid down in the Code had not been followed. But where not only the mode of service laid down in the Code is followed but in addition, some other process is also issued like sending the summons by registered post or by publication of the notice in the newspaper, it cannot be said that in such a case the ex parte order made against the opposite party would be invalid only on the ground that additional mode of service had been followed which is not contemplated by the Code.
- Before proceeding to hear and determine the case ex parte, the Magistrate has to apply his mind to the question whether the opposite party is wilfully avoiding service or wilfully neglecting to attend Court and be satisfied that there has been such wilful conduct on the part of the opposite party. The Magistrate cannot proceed ex parte without arriving at such satisfaction. It is desirable for the Magistrate to pass a formal order recording such satisfaction and giving reasons for such satisfaction. However, the condition precedent for proceeding ex parte is the satisfaction based on reasons and not the formal order. The satisfaction must be discernible from the circumstances evident from the record. Proviso to Sub-section (2) of Section 126 refers to satisfaction of the Magistrate that the opposite party is wilfully avoiding service or wilfully neglecting to attend the Court. The expression “service” is not defined in the Chapter or the Code. It is not stated that what has to be served is “summons” in the general sense of the word or summons as contemplated in the Code or a mere notice.
- The case does not deal with an offence. The person against whom the claim is made is not an offender or an accused. The order passed against him does not spell out a finding that he has committed an offence. There is no punishment imposed on him, though as a mode of recovery, imprisonment is provided for. He is not charged for the commission of a criminal offence. The object of the provision is not to punish him for the past neglect. The object is to prevent vagrancy and ameliorate distress. See In re Vithaldas Bhurabhai, AIR 1928 Bom 346 : (1928-29 Cri LJ 1051),Zainab Bibi v. Anwar Khan, AIR 1946 Pat 104 : (1946-47 Cri LJ 821), A. W. Khan v. Zaitunbi, AIR 1950 Nag 45 : (1950-51 Cri LJ 451), Seri Ram Reddy v. Chandramma, AIR 1952 Hyd 45, Nagendramma v. Ramakotayya, AIR 1954 Mad 713, KarnailSinghv. Mst. Bachan Kaur, AIR 1955 Punj 26 : (1955 Cri LJ 334), Jaswantsinghji v. Kesuba Harisinh, AIR 1955 Bom 108 ; (1955 Cri LJ 357), T. K. Thayumanuvar v. Asanambar Ammal, AIR 1958 Mys 190 : (1958 Cri LJ 1522) and Sew Kumher v. Mongru Kumharin, AIR 1959 Cal 454 : (1959 Cri LJ 834).
- Proceedings under Chap. IX of the Code, stand on a different footing. The person against whom claim for maintenance is made is not accused of any offence; nor can he be convicted or sentenced. The proceedings against him are essentially of a civil nature, since the claim against him is essentially of a civil nature. The Court, naturally, has a duty to inform him about the proceedings and of his right to appear and contest. The normal duty of the Court is to record evidence in the presence of the person against whom the claim is made. That does not and cannot mean that the Court can compel his appearance. Whether he should appear or not is a matter left to his own decision. A person against whom a claim is made may not desire to contest the case at all. He cannot be compelled to appear in Court and to be present during the recording of the evidence. If he cannot be so compelled, the Court cannot have power to compel his appearance. This is the rationale for the provision in the proviso to Section 126 (2) which empowers the Court under certain circumstances to proceed ex parte. The circumstances are where the Court is satisfied that the person against whom the claim for maintenance is made is wilfully avoiding service or wilfully neglecting to attend the Court. Of course, it is not mere avoidance of service or failure to attend the Court which attracts the operation of the proviso. Avoidance of service or failure to attend the Court must be wilful, that is, deliberate. Where such a person wilfully avoids service or neglects to attend the Court, the law enables the Magistrate to determine the case ex parte, after recording the evidence in his absence. This would also indicate that the Magistrate cannot compel appearance of such a person in the same manner in which he can compel appearance of an accused person by resorting to provisions relating to summons, warrant of arrest, proclamation and attachment contained in Chap. VI of the Code.
- As the proceedings are of a civil nature, the Code does not contemplate any preliminary enquiry.[Nand Lal Misra Vs Kanhaiya Lal Misra[SC 1960 April ]
- “But when this date of knowledge falls beyond the period of three months from the date of order, question of limitation arises, no doubt-In this connection it is worthy of note that there is no Article like Article 122 of the Limitation Act, 1963 prescribing limitation for application for setting aside ex parte orders under Section 125, Cr. P.C. In such circumstances aid of Section 5 of the Limitation Act, 1963 may be taken and non-service of notice may be pleaded as sufficient ground for condonation of delay. But in the present case no application has been made under Section 5 of the Limitation Act, 1963 for condonation of delay. The conclusion therefore, is inescapable that the application was time barred and the learned Magistrate was wrong in entertaining the petition”.
- “When an ex parte order under Section 126 of the Code is therefore made, the conclusion is inescapable that the learned Magistrate was satisfied not only regarding due service of process but also regarding opposite party’s wilful avoidance of service or wilful neglect to attend the court. Consequently, subsequent to such ex parte order the Magistrate should be slow and cautious to set aside the ex parte order. Only when cogent and convincing evidence is produced to satisfy that there was no wilful avoidance of service or wilful neglect to attend court the Magistrate will set aside the ex parte order. In the present case the husband did not depose before the learned Magistrate that the process server did not tender to him the notice of the case or that the postal peons did not offer to him the registered covers addressed to him. The endorsements of the postal peon on the registered covers attracted presumption of service under Section 27 of the General Clauses Act. Further who was more likely to influence the process server or postal peon, the husband or wife? According to the husband the wife is a maid-servant and her mother is also a maid-servant whereas he himself is a man of higher social status namely, an Assistant Engineer. Moreover in spite of some inaccuracy in the name of the father and village of the husband given in the petition it was not impossible to find out the husband from other particulars of him as given in the petition. The house of the husband located near Mohuri Mill Gate, P. S. Jagacha, P. O. AndulMohuri. The Police Officer who had been to the location to execute the warrant against the petitioner as a matter of fact found out the husband. So there is no reason to believe that the process-server or postal peon because of inaccuracies in the description of the husband failed to find him out. The learned Magistrate does not appear to have considered these aspects of the case. I am, therefore, convinced that the husband failed to make out good cause for setting aside the ex parte order. The learned Magistrate’s findings to the contrary-effect is untenable”.[
Calcutta High Court Bina Ganguli vs Rash Behari Ganguli on 20 July, 1983 citations: 1983 CriLJ 1672]
- In Jagir Singh v. Ranbir Singh, a revision against the order of the Magistrate was decided by a Sessions Judge and a second revision was sought to be made before the High Court. The Supreme Court clearly held that the object of Section 397(3) of the Code is to prevent a multiple exercise of revisional powers and to secure early finality to orders. Any person aggrieved by an order of an inferior Criminal Court is given the option to approach either the Sessions Judge or the High Court and once he exercises the option he is precluded from invoking the revisional jurisdiction of other authority. The language of Section 397(3) of the Code is clear and peremptory and it does not admit of any other interpretation. In another judgment of the Supreme Court in the case of Rajan Kumar Machananda v. State of Karnataka, (1987) 5 JT 637 (1), it has been now clearly laid down that resort to inherent powers of the High Court cannot be had if there is other remedy available in the Code to the aggrieved person.
- PLEADING-it is well settled that in the matter of criminal cases pleadings are not to be strictly construed. Even so, the combined effect of Ss. 125 to 128 of the Code leaves no room for doubt that the proceedings are quasi-civil in nature. Therefore, the rules of pleadings as apply to civil proceedings are not to be totally disregarded when dealing with applications under Chapter IX of the Code.The main rules in regard to pleadings applicable to civil proceedings are also applicable to proceedings for maintenance under Chapter IX of the Code.
- PAYMENT: Cr.P.C. S.125(3): There is no bar to commit a person under S.125(3), Cr.P.C. to commit a person defaulting in payment of maintenance amount to imprisonment and also simultaneously to proceed against his properties, be it movable or immovable for realisation of the maintenance amount -Smt. Kuldip Kaur Vs. Surinder Singh, AIR 1989 SC 232.