Court:Rajasthan High Court
Bench: JUSTICE R.R. Yadav
Nand Kumar Vs. Smt. Gayatri On 5 August 1999
Law Point:
Sections 126(2), 482 r/w Section 125(3), Proviso — Expression “shall” : Significance : Mandatory Duty upon Court to Record Evidence in Presence of Husband — If such person offers to maintain his wife on condition of her living with him and she refuses to live with him, Magistrate may consider grounds of refusal and make order notwithstanding such offer on his satisfaction — Section 126(2), Cr.P.C. imposes mandatory duty upon Court to record evidence in presence of husband — CJM directed to recall both witnesses i.e. wife and her father for cross-examination in presence of petitioner on payment of costs.
JUDGEMENT
1. The present revision petition under Section 397 read with Section 401, Code of Criminal Procedure has been filed against the order dated July 8, 1999 passed by learned Chief Judicial Magistrate, Jalore in Cr. Misc. Case No. 301/96 whereby the learned Magistrate refused to recall witnesses for cross-examination who were examined in absence of husband in a proceeding under Section 125, Cr.P.C.
2. Heard the learned Counsel for the revisionist.
3. Perused the order impugned.
4. It is true that the order impugned being an interlocutory order, no revision petition is maintainable within the meaning of Sub-section (2) of Section 397, Cr.P.C. However looking into the peculiar facts and circumstances of the case, this revision petition is converted into a petition under Section 482, Cr.P.C. Conversion of this revision into a petition under Section 482, Cr.P.C. becomes necessary in the present case to prevent abuse of the process of the Court and to secure the ends of justice.
5. The respondent Smt. Gayatri is the petitioner’s wife. She filed a petition under Section 125, Cr.P.C. against her husband in the Court of Chief Judicial Magistrate, Jalore. On 29.3.1999 (30.3.1999) she examined herself and her father in absence of her husband against the mandatory provisions of Sub-section (2) of Section 126, Cr.P.C. which clearly provides that all evidence in such proceedings shall be taken in the presence of the person against whom an order for payment of maintenance is proposed to be made or when his personal attendance is dispensed with in presence of his Pleader.
6. It appears that after the aforesaid two statements of Smt. Gayatri and her father had been recorded in absence of the petitioner-husband, an application under Sub-section (2) of Section 126, Cr.P.C. was moved by the petitioner to recall the aforesaid two witnesses for cross-examination but the learned Magistrate rejected the application and imposed a cost of Rs. 100/- on him for moving such application.
7. In the present case indisputably the attendance of the petitioner was not dispensed with either on 29.3.1999 or on 30.3.1999.
8. There is dispute about the date on which the statements of Smt. Gayatri Devi and her father were recorded. The learned Counsel for the revisionist has produced the certified copy of the statements recorded by the Magistrate of Smt. Gayatri and her father wherein at the top the date is written 29th of March, 1999 whereas at the end below the signature of the Magistrate on both the statements 30th March, 1999 is written. The learned Magistrate is directed to look into the matter and make the record straight.
9. It is strenuously urged by the learned Counsel for the revisionist that the term “shall” used under Sub-section (2) of Section 126, Cr.P.C. in its ordinary significance is mandatory and the learned Magistrate was under legal obligation to record the statement of the petitioner’s wife and her father in the presence of petitioner-husband.
10. Having heard the learned Counsel for the revisionist I am of the view that the expression “shall” used under Sub-section (2) of Section 126, Cr.P.C. in its ordinary significance is mandatory. Unless the ordinary interpretation leads to some absurd or inconvenient results or is contrary to the intention of the Legislature as envisaged in a particular statute, the ordinary interpretation of the term is normally adhered to as ruled by the Apex Court in the case of Bhikraj Jaipuria v. Union of India, reported in AIR 1962 SC 113 which reads thus :
“Where a statute requires that thing shall be done in the prescribed manner or form but does not set out the consequences of non-compliance, the question whether the provision was mandatory or directory has to be adjudged in the light of the intention of the Legislature as disclosed by the object, purpose and scope of the statute.”
11. In my humble opinion the expression “shall” used under Sub-section (2) of Section 126, Cr.P.C. is to be read with reference to proviso of Sub-section (3) of Section 125, Cr.P.C. which envisages that if such person offers to maintain his wife on condition of her living with him and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if he is satisfied that there is just ground for so doing. At this stage it is to be seen that if the expression “shall” used under Sub- section (2) of Section 126, Cr.P.C. is read with reference to Sub-section (3) of Section 125, Cr.P.C. it will lead towards an irresistible conclusion that the Legislature has insisted to record the evidence of wife in presence of her husband in a proceeding under Section 125 so that the husband may be provided with an indirect opportunity to patch up the differences with his wife and to effect a change of heart and restore a life of conjugal happiness by offering to maintain his wife. Not only this, it is also possible to envisage a situation where by the intervention of relations of either parties in such proceedings, the husband and wife may by mutual consent agree to live separately.
12. Thus, I am of the view that the use of the word “shall” used under Sub- section (2) of Section 126, Cr.P.C. imposes a mandatory duty upon the Court to record the evidence in the presence of the husband and in this view of the matter it is directed that the learned Chief Judicial Magistrate, Jalore shall now recall both the witnesses i.e. Smt. Gayatri and her father, for cross-examination in presence of the petitioner husband Nand Kumar on payment of Rs. 100/- as costs so that an indirect opportunity of change of heart of the petitioner with his wife may not be missed and it may also help in restoring a life of conjugal happiness.
With the aforesaid observations this revision petition is finally disposed of at admission stage without issuing notice to the other side so that delay in disposal of the proceedings initiated under Section 125, Cr.P.C. may be avoided.
Revision Petition disposed of.
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