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Rajasthan State Judicial Academy 2020 0 AIR(SC) 1064; 20 11/10/2020 SANJEEV KAPOOR VS CHANDANA KAPOOR This product is Licensed to : Rajasthan State Judicial Academy Jodhpur; Rajasthan State Judicial Academy 2020 0 AIR(SC) 1064; 2020 1 ALD(Cri)(SC) 730; 2020 2 CTC 740; 2020 2 KHC 345; 2020 2 PLJR(SC) 19; 2020 2 Supreme 611; 2020 0 Supreme(SC) 180; SUPREME COURT OF INDIA ASHOK BHUSHAN, R. SUBHASH REDDY, JJ. SANJEEV KAPOOR – APPELLANT VERSUS CHANDANA KAPOOR & ORS. – RESPONDENTS CRIMINAL APPEAL NOS.286 OF 2020 (ARISING OUT OF SLP(CRL.)NO.1041 OF 2020) Decided On : 19-02-2020 Criminal Procedure Code, 1973 – Sections 125, 127 and 362 – Restoration of order of maintenance – Section 125 Cr.P.C. 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 – Court after passing judgment or final order in proceeding under Section 125 Cr.P.C. does not become functus officio – Order passed under Section 125 Cr.P.C. can be cancelled or altered – With regard to order passed under Section 125(1) Cr.P.C., Magistrate may have to exercise jurisdiction from time to time – Magistrate does not become functus officio after passing order under Section 125 Cr.P.C., as and when occasion arises Magistrate exercises jurisdiction from time to time – By Section 125(5) Cr.P.C., Magistrate is expressly empowered to cancel an order passed under Section 125(1) Cr.P.C. on fulfilment of certain conditions – Embargo as contained in Section 362 is clearly relaxed in proceeding under Section 125 Cr.P.C. – Section 125 Cr.P.C. has to be interpreted in a manner as to advance justice and to protect a woman for whose benefit provisions have been engrafted – Order passed in present case by Family Court reviving maintenance application of wife under Section 125 Cr.P.C. by setting aside order passed on settlement is not hit by embargo contained in Section 362 Cr.P.C. – High Court did not commit error in rejecting application filed by appellant under Section 482 Cr.P.C. – Inherent powers of High Court given under Section 482 Cr.P.C. are to be exercised to secure ends of justice – Appeal dismissed. (Paras 22, 23, 24, 25, 26, 29, 31, 32 and 33) Facts of the case: Additional Principal Judge, Family Court by order dated 05.01.2019 set aside order dated 06.05.2017 restoring petition under Section 125 Cr.P.C. Challenging order dated 05.01.2019 passed by Family Court, appellant had filed application under Section 482 Cr.P.C. in High Court which has been rejected by High Court by order dated 05.11.2019. Aggrieved by order dated 05.11.2019 of High Court the appellant has filed this appeal. Only point to be determined in this appeal is as to whether the order passed by Additional Principal Judge, Family Court dated 05.01.2019 setting aside the order dated 06.05.2017 disposing of the application under Section 125 Cr.P.C. and restoring the application under Section 125 Cr.P.C. was contrary to Section 362 Cr.P.C. which provides that no Court can alter or review its judgment except for correcting a clerical or arithmetical mistake. Findings of the Court: Order passed in present case by Family Court reviving the maintenance application of the wife under Section 125 Cr.P.C. by setting aside order dated 06.05.2017 passed on settlement is not hit by the embargo contained in Section 362 Cr.P.C. The submission of learned senior counsel for the appellant that Section 362 Cr.P.C. prohibit Magistrate to pass the order dated 05.01.2019 cannot be accepted. Result : Appeal dismissed. Acts Referred: CRIMINAL PROCEDURE CODE : S.125(1), S.125(5), S.127, S.482, S.125, S.125(3), S.362, S.369, S.424, S.145 1/9 11/10/2020 SANJEEV KAPOOR VS CHANDANA KAPOOR Cases Referred: Sankatha Singh vs. State of U.P., 1962 AIR 1208 – Referred [Para 12] Smt. Sooraj Devi vs. Pyare Lal and another, AIR 1981 SC 736 – Referred [Para 13] Mostt. Simrikhia vs. Smt. Dolley Mukherjee @ Smt. Chhabimukherjee & another, AIR 1990 SC 1605 – Referred [Para 14] Hari Singh Mann vs. Harbhajan Singh Bajwa & others, 2001 (1) SCC 169 – Referred [Para 15] State vs. K.V. Rajendran and others, 2008(8) SCC 673 – Referred [Para 16] Mahua Biswas (Smt.) vs. Swagata Biswas and another, (1998) 2 SCC 359 – Relied [Para 17] Badshah versus Urmila Badshah Godse and another, (2014) 1 SCC 188 – Relied [Para 22] IMPORTANT POINTS (1) Court after passing judgment or final order in proceeding under Section 125 Cr.P.C. does not become functus officio – Order passed under Section 125 Cr.P.C. can be cancelled or altered. (2) Inherent powers of High Court given under Section 482 Cr.P.C. are to be exercised to secure ends of justice. JUDGMENT ASHOK BHUSHAN, J. This appeal has been filed against the judgment of the High Court of Punjab and Haryana at Chandigarh dated 05.11.2019 in CRM-M-4663 of 2019 filed by the appellant for setting aside the order dated 05.01.2019 passed by the Addl. Principal Judge, Family Court, Faridabad. The High Court dismissed the petition filed under Section 482 Cr.P.C. by the appellant. 2. Brief facts of the case necessary for deciding this appeal are: The appellant was married to respondent No.1 on 04.11.1998. On 17.08.199 a daughter was born and on 18.07.2005 a son was born out of their wedlock. An application under Section 125 Cr.P.C. was filed by respondent No.1 on 09.07.2013 against her husband 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) Cr.P.C. for enforcement of the order dated 06.05.2017 being Execution Petition No.240 of 2018. The Execution Petition filed by respondent No.1 was rejected by the Additional Principal Judge, Family Court, Faridabad vide order dated 16.07.2018. The Court held that order dated 06.05.2017 being purely conditional and was subject to the fulfilment of the respective obligations by the parties which they have not performed, the application under Section 125(3) Cr.P.C. was not maintainable. 4. After the application filed by respondent No.1 for execution of the order was rejected, respondent No.1 filed an application for recall the order dated 06.05.2017 on 31.07.2018. Respondent No.1 stated in the application that the appellant did not deposit the arrears of the amount as agreed and total amount paid by the appellant was only Rs.75,000/- towards maintenance. Respondent No.1 prayed that order 06.05.2017 may be recalled and application under Section 125(3) Cr.P.C. be restored and decided on merits after hearing the parties. The application filed by respondent No.1 was objected by the appellant by filing objection. In the 2/9 11/10/2020 SANJEEV KAPOOR VS CHANDANA KAPOOR objection, it was stated that the appellant had made payment of some amount as per terms since the respondent backed out, the payment was stopped. 5. The learned Additional Principal Judge, Family Court by order dated 05.01.2019 set aside the order dated 06.05.2017 restoring the petition under Section 125 Cr.P.C. Challenging the order dated 05.01.2019 passed by the Family Court, the appellant had filed application under Section 482 Cr.P.C. in the High Court which has been rejected by the High Court by order dated 05.11.2019. Aggrieved by the order dated 05.11.2019 of the High Court the appellant has filed this appeal. 6. Shri Subodh Markandeya, learned senior counsel for the appellant submits that the application under Section 125 Cr.P.C. filed by respondent No.1 having been finally decided by order dated 06.05.2017 by the learned District Judge, Family Court, Family Court had no jurisdiction to set aside the order. The impugned order dated 05.01.2019 is without jurisdiction and is in the teeth of provision of Section 362 Cr.P.C. 7. It is submitted that according to the Section 362 Cr.P.C. the Court cannot alter or review the judgment 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 Cr.P.C.
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