# Smt. Hema & Anr v. State of U.P. & Anr

- **Citation:** (2024) 5 ILRA 858
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-05-16
- **Case number:** Matter Under Article 227 No. 6584 of 2023
- **Bench:** Dr. Yogendra Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-hema-anr-v-state-of-u-p-anr-52083
- **Pages:** 12

## Headnote

Civil Law - Code of Criminal Procedure,
1973 - Sections 125, 127 & 362 - Scope
of Section 362 Cr.P.C in maintenance -
Maintenance petition was filed u/s 125
Cr.P.C - Allowed ex-parte, an amount of
Rs. 10,000/- pm had been awarded in
favour of petitioner no. 1, and an amount
of Rs. 2,000/- in favour of petitioner no.
2 - Respondent no. 2 filed recall
application, allowed - During subsequent
proceedings, maintenance petition was
dismissed for non-prosecution - On the
same
date,
the
petitioners
moved
restoration application - Dismissed -
Impugned order - Held, proceedings for
maintenance u/s 125 Cr.P.C. are of a
summary nature, object of the same is to
provide immediate relief to applicant
- The embargo contained in Section 362
held to be relaxed in proceedings u/s
125, and the court having not become
functus officio after passing of final
order, the recall application filed seeking
restoration of case, could not be rejected
by assigning a reason that Court was not
empowered to entertain the same -
Hence, impugned order was set aside and
matter was remitted for passing fresh
order. (Para 5, 6, 37, 44, 46)

Petition partly allowed. (E-13)

List of Cases cited:

## Text

858 INDIAN LAW REPORTS ALLAHABAD SERIES
2021 without pre deposit of 50% of the
amount payable under the order of Rent
Authority. In case original order is not
under
challenged,
only
order
of
review/recall as discussed herein above is
under challenge without deposit of 50%
amount, original order shall not be treated
under challenge and any interim order
granted in appeal against review/recall order
shall not be treated stay of original order. It
would also be open for the applicant to
initiate execution proceedings, if advised.

15. Registrar General is directed to
circulate the copy of this order to all Rent
Authority and Rent Tribunal of State of
Uttar Pradesh for necessary compliance at
the earliest.
----------
(2024) 5 ILRA 858
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 16.05.2024

BEFORE

THE HON'BLE DR. YOGENDRA KUMAR
SRIVASTAVA, J.

Matter Under Article 227 No. 6584 of 2023

Smt. Hema & Anr. ...Petitioners
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Petitioners:
Sujan Singh

Counsel for the Respondents:
G.A., Niharika Dubey, Vishakha Dubey

Civil Law - Code of Criminal Procedure,
1973 - Sections 125, 127 & 362 - Scope
of Section 362 Cr.P.C in maintenance -
Maintenance petition was filed u/s 125
Cr.P.C - Allowed ex-parte, an amount of
Rs. 10,000/- pm had been awarded in
favour of petitioner no. 1, and an amount
of Rs. 2,000/- in favour of petitioner no.
2 - Respondent no. 2 filed recall
application, allowed - During subsequent
proceedings, maintenance petition was
dismissed for non-prosecution - On the
same
date,
the
petitioners
moved
restoration application - Dismissed -
Impugned order - Held, proceedings for
maintenance u/s 125 Cr.P.C. are of a
summary nature, object of the same is to
provide immediate relief to applicant
- The embargo contained in Section 362
held to be relaxed in proceedings u/s
125, and the court having not become
functus officio after passing of final
order, the recall application filed seeking
restoration of case, could not be rejected
by assigning a reason that Court was not
empowered to entertain the same -
Hence, impugned order was set aside and
matter was remitted for passing fresh
order. (Para 5, 6, 37, 44, 46)

Petition partly allowed. (E-13)

List of Cases cited:

1. Kusum Devi Vs Ram Chandra Maurya, 2004 1
Crimes(HC) 153

2. Kehari Singh Vs St. of U.P., 2005 0 CrLJ 2330

3. Jagmohan Arora Vs Saroj Arora, 2011
LawSuit(Del) 2381

4. Suhird Kamra Vs Neeta & anr., 1988 (14) DRJ
282

5. Sanjeev Kapoor Vs Chandana Kapoor & ors.,
(2020) 13 SCC 172

6. Sankatha Singh Vs St. of U.P., AIR 1962 SC
1208

7. Sooraj Devi Vs Pyare Lal, (1981) 1 SCC 500

8. Simrikhia Vs Dolley Mukherjee, (1990) 2 SCC
437

9. Hari Singh Vs Harbhajan Singh Bajwa, (2001)
1 SCC 169

10. St. Vs K.VS Rajendran, (2008) 8 SCC 673
5 All. Smt. Hema & Anr. Vs. State of U.P. & Anr.
859
11. Mahua Biswas Vs Swagata Biswas, (1998) 2
SCC 359

12. Badshah Vs Urmila Badshah Godse, (2014) 1
SCC 188

13. R (on the application of Quintavalle) Vs
Secretary of St. for Health, (2003) 2 All ER 113
(UK House of Lords)

14. Stock Vs Frank Jones (Tipton) Ltd., (1978) 1
WLR 231 (UK House of Lords)

15. Bhuwan Mohan Singh Vs Meena & others,
(2015) 6 SCC 353

16. Smt. Dukhtar Jahan Vs Mohammed Farooq,
(1987) 1 SCC 624

17. Vimala (K.) Vs Veeraswamy (K.), (1991) 2 SCC
375

18.Kirtikant D. Vadodaria Vs St. of Gujarat,
(1996) 4 SCC 479

19. Allahabad Bank & Anr. Vs All India Allahabad
Bank Retired Employees Association, (2010) 2
SCC 44

20. Bharat Singh Vs Management of New Delhi
Tuberculosis Centre, New Delhi & Ors, (1986) 2
SCC 614

(Delivered by 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 Cr.P.C. were instituted by filing
a maintenance petition on 05.09.2014,
which was allowed ex-parte 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
860 INDIAN LAW REPORTS ALLAHABAD SERIES
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 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 Maurya1;
Kehari
Singh Vs.
State
of
U.P.2;
Jagmohan Arora Vs. Saroj Arora3;
Suhird Kamra Vs. Neeta and Another4
and Sanjeev Kapoor Vs. Chandana
Kapoor and Others5.

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 non-prosecution,
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
125(1), 125(5) and 127 Cr.P.C. relating to
orders for maintenance of wives, children
and parents, under Chapter-IX 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,
5 All. Smt. Hema & Anr. Vs. State of U.P. & Anr.
861
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 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,
862 INDIAN LAW REPORTS ALLAHABAD SERIES
(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 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.

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.
5 All. Smt. Hema & Anr. Vs. State of U.P. & Anr.
863
22. In Sanjeev Kapoor Vs.
Chandana Kapoor and others6, 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. Sub-section
(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 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 Lal8, Simrikhia v. Dolley
Mukherjee9, Hari Singh v. Harbhajan
Singh Bajwa10, State v. K.V. Rajendran11,
Mahua Biswas v. Swagata Biswas12; 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
864 INDIAN LAW REPORTS ALLAHABAD SERIES
Cr.P.C. and its social objective was
examined in Badshah v. Urmila Badshah
Godse13 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
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.
Cardozo15, and also the observations made
in Gray's Lectures on 'The Nature and
Sources of the Law16, 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
5 All. Smt. Hema & Anr. Vs. State of U.P. & Anr.
865
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 pre-existence 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 recherché scientifique i.e. "free scientific
research". We are of the opinion that there is a
non-rebuttable
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
consistently followed. In this regard, reference
may be had to the decision in R (on the
application of Quintavalle) Vs. Secretary of
State for Health17, 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,
866 INDIAN LAW REPORTS ALLAHABAD SERIES
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 well-known
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 & others19, and referring
to the earlier decisions in Smt. Dukhtar
Jahan v. Mohammed Farooq20, Vimala
(K.) v. Veeraswamy (K.)21 and Kirtikant
D. Vadodaria v. State of Gujarat22 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 three-Judge 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 two-Judge 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 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
5 All. Smt. Hema & Anr. Vs. State of U.P. & Anr.
867
in the Construction of Statues by
Crawford23 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
Laws24, 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 Statutes25, 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 Retired Employees Association26,
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
have-nots 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
868 INDIAN LAW REPORTS ALLAHABAD SERIES
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 have-nots 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 have-nots and the underdog and which
would lead to injustice should always be
avoided..."

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 125-127 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,
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
5 All. Rajiv Malhotra Vs. State of U.P. & Anr.
869
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 125-127 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.
----------
(2024) 5 ILRA 869
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 06.05.2024

BEFORE

THE HON'BLE ARUN KUMAR SINGH
DESHWAL, J.

Application U/s 482 No. 11995 of 2024

Rajiv Malhotra ...Petitioner
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Petitioner:
Sri Abhay Mani Tripathi, Sri Nipun Singh

Counsel for the Respondent:
G.A.

A. Criminal Law-Criminal Procedure Code,
1973-Section 482-Negotiable Instrument
Act,
1881-Section
138-quashing
of
summoning order-complaint of opposite
party was dismissed in default-Proceeding
under section 138 NI Act is quasi civil in
nature, therefore a bar of section 362 CrPC
will not apply if the complaint is dismissed
for want of prosecution at the initial stagethe Apex court observed that if the order
was not passed on merit, the same could be
recalled by the same court-even if there is
a condition that before presentation of
cheque, notice should be given to the
drawer of cheque, even then on bouncing
of such conditional cheque, offence u/s
138 NI Act will be attracted if no