Section 125
CrPC
CrPC Section 125
Court which passes order on settlement between parties has the power to recall/set aside the order if terms are violated
Criminal Procedure Code, 1973 (2 of 1974) – Section 125 - Court which passes order on settlement between parties has the power to recall/set aside the order if terms are violated - Order passed by Family Court reviving the maintenance application of the wife under Section 125 Cr.P.C. by setting aside order passed on settlement is not hit by the embargo contained in Section 362 Cr.P.C. #2020 SCeJ 76
Court can restore the petition under Section 125 - When the appellant-husband did not honour its commitment under settlement, can the wife be left in lurch by not able to press for grant of maintenance on non-compliance by the appellant of the terms of settlement - The answer is obviously ‘No’ - Section 125 Cr.P.C. has to be interpreted in a manner as to advance justice and to protect a woman for whose benefit the provisions have been engrafted - Court adopted the Course which avoided injustice to the wife. [Para 31, 29]
Held, 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. [Para 22]
Section 125 Cr.P.C. uses the expression used is “as the Magistrate from time to time direct”. The use of expression ‘from time to time’ has purpose and meaning. It clearly contemplates that with regard to order passed under Section 125(1) Cr.P.C., the Magistrate may have to exercise jurisdiction from time to time. Use of expression ‘from time to time’ in is exercise of jurisdiction of Magistrate in a particular case. Advanced Law Lexicon by P.Ramanatha Aiyar, 3rd edition defines ‘time to time’ as follows: - “Time to time. As occasion arises” [Para 24]
The above Legislative Scheme indicates that 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) Cr.P.C., Magistrate is expressly empowered to cancel an order passed under Section 125(1) Cr.P.C. on fulfilment of certain conditions. [Para 25]
Embargo of Section 362 is expressly relaxed in proceeding under Section 125 Cr.P.C.
Maintenance – Overlapping jurisdiction
Special Marriage Act, 1954 (43 of 1954) Section 36, 37 – Hindu Marriage Act, 1955 (25 of 1955) Section 24, 25 – Hindu Adoption and Maintenance Act, 1956 (78 of 1956) Section 18 – Criminal Procedure Code, 1974 (II of 1974) Section 125 – Protection of Women from Domestic Violence Act, 2005 (43 of 2005) Section 2 – Maintenance – Overlapping jurisdiction – To overcome the issue of overlapping jurisdiction, and avoid conflicting orders being passed in different proceedings, we direct that in a subsequent maintenance proceeding, the applicant shall disclose the previous maintenance proceeding, and the orders passed therein, so that the Court would take into consideration the maintenance already awarded in the previous proceeding, and grant an adjustment or set-off of the said amount - If the order passed in the previous proceeding requires any modification or variation, the party would be required to move the concerned court in the previous proceedings. (2020)200 PLR 793 (SC)