Holding

Section 362 CrPC does not prohibit alteration of maintenance orders because Sections 125, 125(5) and 127 CrPC expressly provide for cancellation, variation or alteration, so the Family Court's order was valid and the High Court was correct in rejecting the Section 482 petition.

Summary

The husband and wife filed a maintenance petition under Section 125 of the CrPC, which the Family Court disposed of by a settlement order directing monthly maintenance and a mutual consent divorce. The husband paid only four months' maintenance; the wife filed an execution petition which was rejected as the order was deemed conditional. She then applied to recall the settlement order, and the Family Court set aside the settlement and revived the maintenance application. The husband challenged this by filing a petition under Section 482 in the High Court, which was dismissed. The Supreme Court examined whether Section 362 CrPC bars a court from altering its own order and held that the provisions of Sections 125, 125(5) and 127 CrPC expressly empower the magistrate to cancel, vary or alter maintenance orders, thereby relaxing the embargo of Section 362. Consequently, the Family Court acted within its jurisdiction and the High Court was correct in rejecting the Section 482 petition. The appeal was dismissed.

Issues considered

The applicability of Section 362 CrPC's embargo on altering or reviewing a court's judgment to orders passed under Section 125 CrPC.
Whether the Family Court had jurisdiction to set aside its earlier settlement order and revive the maintenance application.
Whether the High Court could entertain a petition under Section 482 CrPC challenging the Family Court's order.

Legislation cited

Code of Criminal Procedure, 1898s. 369
Code of Criminal Procedure, 1973s. 125, s. 125(5), s. 127, s. 362, s. 482

Subjects

MaintenanceSection 125 CrPCSection 362 CrPCFunctus officioInherent powersSection 482 CrPCFamily CourtSettlement orderRevocationSocial justiceGender justice

Judgment

[2020] 1 S.C.R. 663 663

SANJEEV KAPOOR A
v.
CHANDANA KAPOOR & ORS.
(Criminal Appeal No. 286 of 2020)
FEBRUARY 19, 2020 B
[ASHOK BHUSHAN AND R. SUBHASH REDDY, JJ.]
Code of Criminal Procedure, 1973: s.362 – Court not to alter
judgment – In the instant case, the Family Court disposed of the
maintenance petition under s.125 CrPC filed by respondent-wife
C
directing appellant-husband to pay monthly maintenance and the
parties to the dispute to file petition for divorce by mutual consent –
Husband paid the maintenance for four months only – Respondent-
wife filed execution petition for enforcement of the order for payment
of maintenance – Family Court rejected the execution petition
holding that the order of maintenance was purely conditional and D
was subject to the fulfillment of respective obligations by the parties
which they did not perform and, therefore, application under
s.125(3) was not maintainable – Wife filed application for recalling
the order passed in s.125 petition – Family Court restored the s.125
petition – Husband challenged the same by filing s.482 petition –
E
High Court rejected the s.482 petition – On appeal, held: The
Magistrate does not become functus officio after passing an order
under s.125 – The section clearly contemplates that the Magistrate
may have to exercise jurisdiction from time to time – The order passed
in instant case by Family Court reviving the maintenance application
of the wife under s.125 by setting aside order passed on settlement F
is not hit by the embargo contained in s.362 – Plea of husband that
s.362 prohibited the Magistrate to restore the maintenance
application was not tenable – High Court did not commit an error
in rejecting the application under s.482 – The inherent powers of
the High Court given under s.482 are to be exercised to secure the
G
ends of justice – Family Court did substantial justice in reviving the
maintenance application of the wife – High Court erred in interfering
in exercise of its jurisdiction under s.482 Cr.P.C. – Family law –
Maintenance – Code of Criminal Procedure, 1898 – s.369.

H
663
664 SUPREME COURT REPORTS [2020] 1 S.C.R.

A Dismissing the appeal, the Court
HELD: 1. The Legislative Scheme as delineated by Section
369 of Code of Criminal Procedure, 1898, as well as Legislative
Scheme as delineated by Section 362 of Code of Criminal
Procedure, 1973 is one and the same. The embargo put on the
B criminal court to alter or review its judgment is with a purpose
and object. The criminal justice delivery system does not cloth
criminal court with power to alter or review the judgment or final
order disposing the case except to correct the clerical or
arithmetical error. After the judgment delivered by a criminal
Court or passing final order disposing the case, the Court becomes
C functus officio and any mistake or glaring omission is left to be
corrected only by appropriate forum in accordance with law.
Section 362 Cr.P.C. begins with the word “save as otherwise
provided by this Code or by any other law for the time being in
force”. The above expression clearly means that rigour as
D contained in Section 362 Cr.P.C. is relaxed in following two
conditions: - i) Save as otherwise provided by the Code of Criminal
Procedure. ii) any other law for the time being in force. [Paras
18, 20][672-B-F]
2. The closer look of Section 125 Cr.P.C. itself indicates
E that the Court after passing judgment or final order in the
proceeding under Section 125 Cr.P.C. does not become functus
officio. The Section itself contains express provisions where order
passed thereunder can be cancelled or altered which is noticeable
from Section 125(1), Section 125(5) and Section 127 of Cr.P.C. In
Section 125 Cr.P.C., the expression used is “as the Magistrate
F 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.
By Section 125(5) Cr.P.C., Magistrate is expressly empowered
G to cancel an order passed under Section 125(1) Cr.P.C. on
fulfilment of certain conditions. Section 127 Cr.P.C. also discloses
the legislative intendment where the Magistrate is empowered
to alter an order passed under Section 125 Cr.P.C. Section 127(2)
Cr.P.C. also empower the Magistrate to cancel or vary an order
under Section 125. The Legislative Scheme as delineated by
H
SANJEEV KAPOOR v. CHANDANA KAPOOR & ORS. 665

Sections 125 and 127 Cr.P.C. clearly enumerated the A
circumstances and incidents provided in Cr.P.C. where Court
passing a judgment or final order disposing the case can alter or
review the same. The embargo as contained in Section 362 is,
thus, clearly relaxed in proceeding under Section 125 Cr.P.C.
[Paras 23-26][675-G-H; 678-D-H; 679-A]
B
3. It came on the record that after passing of the order on
settlement, the appellant according to his own case paid
maintenance of four months only. The arrears were not paid by
the appellant within the time allowed by the Court. When the
appellant did not honour its commitment under settlement, the
wife cannot be left in lurch by not able to press for grant of C
maintenance on non-compliance by the appellant of the terms of
settlement. 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. [Para 29][680-B-D]
Badshah v. Urmila Badshah Godse and another (2014) D
1 SCC 188 : [2013] 10 SCR 259; Mahua Biswas(Smt.)
v. Swagata Biswas and another (1998) 2 SCC 359 –
relied on.
Sankatha Singh v. State of U.P. 1962 AIR 1208 : [1962]
Suppl. SCR 817; Smt. Sooraj Devi v. Pyare Lal and E
another AIR 1981 SC 736 : [1981] 2 SCR 485; Mostt.
Simrikhia v. Smt. Dolley Mukherjee @ Smt.
Chhabimukherjee & another AIR 1990 SC 1605 :
[1990] 1 SCR 788; Hari Singh Mann v. Harbhajan
Singh Bajwa & Others (2001) 1SCC 169 : [2000] 4 F
Suppl. SCR 313; State v. K.V. Rajendran and Others
(2008) 8 SCC 673 : [2008] 12 SCR 1141 – referred to
Case Law Reference
[1962] Suppl. SCR 817 referred to Para 12
G
[1981] 2 SCR 485 referred to Para 13
[1990] 1 SCR 788 referred to Para 14
[2000] 4 Suppl. SCR 313 referred to Para 15

H
666 SUPREME COURT REPORTS [2020] 1 S.C.R.

A [2008] 12 SCR 1141 referred to Para 16
(1998) 2 SCC 359 relied on Para 17
[2013] 10 SCR 259 relied on Para 22
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
B 286 of 2020.
From the Judgment and Order dated 05.11.2019 of the High Court
of Punjab and Haryana at Chandigarh in CRM-M-4663-2019.
Subodh Markandeya, Sr. Adv., Pramit Saxena, Rahul Aggarwal,
Amit Pratap Singh, Advs. for the Appellant.
C
Rishabh Jain, Adv. for the Respondents.
The Judgment of the Court was delivered by
ASHOK BHUSHAN, J.
1. This appeal has been filed against the judgment of the High
D 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.
E 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
F 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
G 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
H for divorce by mutual consent by incorporating the terms and conditions.
SANJEEV KAPOOR v. CHANDANA KAPOOR & ORS. 667
[ASHOK BHUSHAN, J.]

The maintenance petition was, thus, disposed of by the Family Court by A
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 B
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. C

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/- D
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
objection, it was stated that the appellant had made payment of some E
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 F
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 G
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. H
668 SUPREME COURT REPORTS [2020] 1 S.C.R.

A 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. is
void. He submits that the High Court committed error in not setting
aside the order dated 05.01.2019.
B
8. Learned counsel for the appellant in support of his submission
has relied on several judgments of this Court which shall be noticed
hereinafter.
9. The respondent appeared through counsel on caveat. Learned
C counsel for the respondent supported the impugned judgment of the High
Court.
10. We have considered the submissions of the learned counsel
for the parties and perused the records.
11. The only point to be determined in this appeal is as to whether
D the order passed by the 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
E clerical or arithmetical mistake. Section 362 Cr.P.C. contained in Chapter
XXVII “THE JUDGMENT” is to the following effect:
“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
F order disposing of a case, shall alter or review the same except to
correct a clerical or arithmetical error.”
12. We may first notice the judgments which have been relied by
the learned counsel for the appellant in support of his submission. The
first judgment which has been relied by the learned counsel for the
appellant is in Sankatha Singh vs. State of U.P., 1962 AIR 1208. In
G
the above case when a criminal appeal came for hearing before the trial
court, the trial court dismissed the appeal, noticing that the appellants
have been absent, and their counsel has not appeared to argue the appeal.
The Court also observed that it had perused the judgment of the Magistrate
and seen the record and there is no ground for interference. An application
H was filed before the Appellate Court for restoration of the appeal which
SANJEEV KAPOOR v. CHANDANA KAPOOR & ORS. 669
[ASHOK BHUSHAN, J.]

was allowed by the learned Sessions Judge. However, when the appeal A
was again listed for hearing the learned Judge took the view that the
Appellate Court had no power to review or restore an appeal which had
been disposed of. The appeal was dismissed. The criminal revision was
filed in the High Court which too was dismissed. This Court in the above
case had occasion to consider Section 369 of Criminal Procedure Code,
B
1898 which is now Section 362 of Criminal Procedure Code, 1973. This
Court held that Section 369 of the Code prohibited the Courts from
reviewing or altering its judgment. Following was laid down by this Court:
“It has been urged for the appellants that Shri Tej Pal Singh
could order the rehearing of the appeal in the exercise of the
inherent powers which every court possesses in order to further C
the ends of justice and that Shri Tripathi was not justified in any
case to sit in judgment over the order of Shri Tej Pal Singh, an
order passed within jurisdiction, even though it be erroneous.
Assuming that Shri Tej Pal Singh, as Sessions Judge, could exercise
inherent powers, we are of opinion that he could not pass the D
order of the rehearing of the appeal in the exercise of such powers
when Section 369, read with Section 424 of the Code, specifically
prohibits the altering or reviewing of its order by a court. Inherent
powers cannot be exercised to do what the Code specifically
prohibits the court from doing. Shri Tripathi was competent to
consider when the other party raised the objection whether the E
appeal was validly up for rehearing before him. He considered
the question and decided it rightly.
It is also urged for the appellants Shri Tej Pal Singh had the
jurisdiction to pass orders on the application presented by the
appellants on December 17, 1956, praying for the rehearing of F
the appeal and that therefore his order could not be said to have
been absolutely without jurisdiction. We do not agree. He certainly
had jurisdiction to dispose of the application presented to him, but
when Section 369 of the Code definitely prohibited the court’s
reviewing or altering its judgment, he had no jurisdiction to consider G
the point raised and to set aside the order dismissing the appeal
and order its rehearing.”
13. Next judgment cited is Smt. Sooraj Devi vs. Pyare Lal and
another, AIR 1981 SC 736, where Section 362 Cr.P.C. came for
consideration. This Court laid down following: H
670 SUPREME COURT REPORTS [2020] 1 S.C.R.

A “The appellant points out that he invoked the inherent power
of the High Court saved by Section 482 of the Code and that
notwithstanding the prohibition imposed by Section 362 the High
Court had power to grant relief. Now it is well settled that the
inherent power of the court cannot be exercised for doing that
which is specifically prohibited by the Code (Sankatha Singh v.
B
State of U.P.). It is true that the prohibition in Section 362 against
the court altering or reviewing its judgment is subject to what is
“otherwise provided by this Court or by any other law for the time
being in force”. Those words, however, refer to those provisions
only where the court has been expressly authorised by the Code
C or other law to alter or review its judgment. The inherent power
of the court is not contemplated by the saving provision contained
in Section 362 and, therefore, the attempt to invoke that power
can be of no avail.”
14. Next judgment relied is Mostt. Simrikhia vs. Smt. Dolley
D Mukherjee @ Smt. Chhabimukherjee & another, AIR 1990 SC
1605, in which this Court held:
“Section 362 of the Code expressly provides that 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
E arithmetical error save as otherwise provided by the Code. Section
482 enables the High Court to make such order as may be
necessary to give effect to any order under the Code or to prevent
abuse of the process of any court or otherwise to secure the ends
of justice. The inherent powers, however, as much are controlled
by principle and precedent as are its express powers by statute.
F If a matter is covered by an express letter of law, the court cannot
give a go-by to the statutory provisions and instead evolve a new
provision in the garb of inherent jurisdiction.”
15. To the same effect, is the judgment of this Court reported in
Hari Singh Mann vs. Harbhajan Singh Bajwa & others, 2001 (1)
G SCC 169, which has been relied by the appellant.
16. Next case relied is State vs. K.V. Rajendran and others,
2008(8) SCC 673. This Court had occasion to consider Section 362
and Section 482 Cr.P.C. In the above case relying on the judgment of
this Court in Mostt. Simrikhia vs. Smt. Dolley Mukherjee (supra)
H this Court laid down in paragraph 18:
SANJEEV KAPOOR v. CHANDANA KAPOOR & ORS. 671
[ASHOK BHUSHAN, J.]

“18. Keeping the principles, as laid down by the aforesaid A
decisions of this Court in mind, let us now look to Section 362 of
the Code, which expressly provides that no court which has signed
its judgment and final order disposing of a case, shall alter or
review the same except to correct clerical or arithmetical error
save as otherwise provided by the court. At this stage, the exercise
B
of power under Section 482 of the Code may be looked into.”
17. Learned counsel for the appellant has also referred to judgment
of this Court in Mahua Biswas (Smt.) vs. Swagata Biswas and
another, (1998) 2 SCC 359. In the above case, in the proceedings
under Section 125 Cr.P.C. parties compromised and started living together
but later fell apart. An objection was raised by the husband that order of C
maintenance could not be revived with which High Court agreed. This
Court revived the maintenance application by allowing the appeal. In
paragraph 3 following was held:
“3. The matter can be viewed from either angle. It can be
viewed that there was a genuine effort by the wife to rehabilitate D
herself in her matrimonial home but in vain. The previous orders
of maintenance in a manner of speaking could at best be taken to
have been suspended but not wiped out altogether. The other view
can be that the maintenance order stood exhausted and thus she
be left to fight a new litigation on a fresh cause of action. Out of E
the two courses, we would prefer to adopt the first one, for if we
were to resort to the second option, it would lead to injustice. In a
given case the wife may then be reluctant to settle with her husband
lest she lose the order of maintenance secured on his neglect or
refusal. Her husband on the other side, would jump to impromptu
devices to demolish the maintenance order in duping the wife to a F
temporary reconciliation. Thus, in order to do complete justice
between the parties, we would in the facts and circumstances
activate the wife’s claim to maintenance and put her in the same
position as before. Evidently, she has obtained a maintenance order
at a figure which was taken into account by the Court of the G
C.J.M. Taking that into account, we order the husband to pay to
his wife and the daughter a sum of Rs 1000 each, effective from
1-10-1997. The sum of Rs 12,000 which was earlier ordered by
this Court to be paid to the wife and her daughter as arrears of
maintenance shall be taken to have been duly paid uptil 30-9-
H
672 SUPREME COURT REPORTS [2020] 1 S.C.R.

A 1997, irrespective of the rate of maintenance. This streamlines
the dispute between the parties. It is made clear that it is open to
the parties to claim such other relief as may be due to him/her by
raising a matrimonial dispute before the matrimonial court.”
18. The Legislative Scheme as delineated by Section 369 of Code
B of Criminal Procedure, 1898, as well as Legislative Scheme as delineated
by Section 362 of Code of Criminal Procedure, 1973 is one and the
same. The embargo put on the criminal court to alter or review its
judgment is with a purpose and object. The judgments of this Court as
noted above, summarised the law to the effect that criminal justice
delivery system does not cloth criminal court with power to alter or
C review the judgment or final order disposing the case except to correct
the clerical or arithmetical error. After the judgment delivered by a criminal
Court or passing final order disposing the case the Court becomes functus
officio and any mistake or glaring omission is left to be corrected only by
appropriate forum in accordance with law.
D 19. In the present case, we are concerned with the order passed
by the Court under Section 125 Cr.P.C. Whether the embargo contained
in under Section 362 Cr.P.C. prohibiting the court to alter or review its
judgment or final order disposing the case applies to order passed under
Section 125 Cr.P.C. is the question to be answered in the present case.
E 20. Section 362 Cr.P.C. begins with the word “save as otherwise
provided by this Code or by any other law for the time being in
force”. The above expression clearly means that rigour as contained in
Section 363 Cr.P.C. is relaxed in following two conditions: -
i) Save as otherwise provided by the code of Criminal Procedure.
F
ii) any other law for the time being in force.
21. We need to first examine as to whether the orders passed in
present case are covered by the exception i.e. “save as otherwise
provided by the Code”. Section 362 Cr.P.C., thus, although put embargo
on the criminal Court to alter or review its judgment or final order disposing
G
the case but engrafted the exceptions as indicated therein. The legislature
was aware that there are and may be the situations where altering or
reviewing of criminal court judgment is contemplated in the Code itself
or any other law for the time being in force. We since in the present
case are concerned only with Section 125 Cr.P.C., we need to examine
H
SANJEEV KAPOOR v. CHANDANA KAPOOR & ORS. 673
[ASHOK BHUSHAN, J.]

as to whether Section 145 Cr.P.C. in any manner relaxed the rigour of A
Section 362 Cr.P.C.
22. Before we proceed to look into the Legislative Scheme of
Section 125 Cr.P.C., we need to notice few rules of interpretation of
statutes when court is concerned with interpretation of a social justice
legislation. Section 125 Cr.P.C. is a social justice legislation which order B
for maintenance for wives, children and parents. Maintenance of wives,
children and parents is a continuous obligation enforced. This Court had
occasion to consider the interpretation of Section 125 Cr.P.C. in Badshah
versus Urmila Badshah Godse and another, (2014) 1 SCC 188. In
paragraphs 13.3 to 18, following has been laid down: -
C
“13.3. Thirdly, 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 D
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 E
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.
F
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 G
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
H
674 SUPREME COURT REPORTS [2020] 1 S.C.R.

A 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 social-economic inequalities accentuating the
disabilities of the poor in an unequal fight, the adversarial
B
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
C social context judging or social justice adjudication.”
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
D in the approach from “adversarial” litigation to social context
adjudication is the need of the hour.
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
E 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 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
F 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
G 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
H the need of it.” and he elaborates:
SANJEEV KAPOOR v. CHANDANA KAPOOR & ORS. 675
[ASHOK BHUSHAN, J.]

“It is true that codes and statutes do not render the A
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
B
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:
C
“The fact is that the difficulties of so-called
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 D
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 E
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” F
under such circumstances. This approach is particularly
needed while deciding the issues relating to gender justice.
We already have examples of exemplary efforts in this regard.
Journey from Shah Bano to Shabana Bano guaranteeing
maintenance rights to Muslim women is a classical example.
G
23. The closer look of Section 125 Cr.P.C. itself indicates that the
Court after passing judgment or final order in the proceeding under Section
125 Cr.P.C. does not become functus officio. The Section itself contains
express provisions where order passed under Section 125 Cr.P.C. can
be cancelled or altered which is noticeable from Section 125(1), Section
125(5) and Section 127 of Cr.P.C., which are to the following effect: - H
676 SUPREME COURT REPORTS [2020] 1 S.C.R.

A “125(1). 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
B 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
C
(d) his father or mother, unable to maintain himself or herself,
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
D 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
E
of sufficient means:
[Provided 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,
F
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
G second proviso shall, as far as possible, be disposed of within
sixty days from the date of the service of notice of the application
to such person.]
Explanation. – For the purposes of this Chapter, -

H
SANJEEV KAPOOR v. CHANDANA KAPOOR & ORS. 677
[ASHOK BHUSHAN, J.]

(a) “minor” means a person who, under the provisions of the A
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.
125(5). On proof that any wife in whose favour an order has B
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 C
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 D
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 E
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 – F
(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 G
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,
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678 SUPREME COURT REPORTS [2020] 1 S.C.R.

A 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
B 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
C 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.”
D 24. In 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
E case. Advanced Law Lexicon by P.Ramanatha Aiyar, 3rd edition defines
‘time to time’ as follows:-
“Time to time. As occasion arises”
25. The above Legislative Scheme indicates that Magistrate does
F 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.
26. Section 127 Cr.P.C. also discloses the legislative intendment
G
where the Magistrate is empowered to alter an order passed under Section
125 Cr.P.C. Sub-Section (2) of Section 127 Cr.P.C. also empower the
Magistrate to cancel or vary an order under Section 125. The Legislative
Scheme as delineated by Sections 125 and 127 Cr.P.C. as noted above
clearly enumerated the circumstances and incidents provided in the Code
H
SANJEEV KAPOOR v. CHANDANA KAPOOR & ORS. 679
[ASHOK BHUSHAN, J.]

of Criminal Procedure where Court passing a judgment or final order A
disposing the case can alter or review the same. The embargo as contained
in Section 362 is, thus, clearly relaxed in proceeding under Section 125
Cr.P.C. as indicated above.
27. The submissions which have been pressed by the learned
counsel for the appellant were founded only on embargo of Section 362 B
and when embargo of Section 362 is expressly relaxed in proceeding
under Section 125 Cr.P.C., we are not persuaded to accept the submission
of counsel for the appellant that the Family Court was not entitled to set
aside and cancel its order dated 06.05.2017 in facts and circumstances
of the present case.
C
28. As noted above, the proceeding under Section 125(1) Cr.P.C.
was disposed of on a settlement entered between the parties. The order
passed by Family Court on 06.05.2017 is as follows: -
“Reconciliation efforts made in this Chamber of the
under signed. Parties have settled the matter amicably on the D
terms and conditions recorded separately in the court today.
As per which, the respondent/Sanjay Kapoor shall pay
Rs.25,000/- per month towards the maintenance of petitioner
no.1 and 3 with effect from July 2015, out of which the arrears
of amount of maintenance up to May to April 2017 shall be
paid by him in the bank account of petitioner no.1 Chandana E
within six months form today and account of maintenance of
Rs.25,000/- per month with effect from May 2017 shall be
paid by him in the bank account of Chandana month to month
on or before 10th day of each Calendar month. The parties
shall be bound by their statement. In view of the statement F
recorded in the court today, the instant petition stands disposed
of accordingly, and respondent/Sanjay Kapoor shall pay a
sum of Rs.25000/- per month to petitioner no.2 and 3 time to
time, which shall be deposited directly in the bank account of
Chandana. He shall clear the arrears of amount of
maintenance @ Rs.25,000/- per month payable with effect G
from July 2015 to April 2017 within six months. In case of
non-fulfilment of commitment made by Sanjeev Kapoor, the
petitioners shall be at liberty to proceed as per law. File, after
needful, be consigned to records.
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680 SUPREME COURT REPORTS [2020] 1 S.C.R.

A Sd/-
Sartaj Baswana
District Judge, Family Court- II
Faridabad
UID No.HR.0487"
B 29. It has come on the record that after passing of the above
order on settlement, the appellant according to his own case has paid
only an amount of One Lakh Rupees, i.e. maintenance of four months
after May 2017. The arrears from July, 2015 to April 2017 has not been
paid by the appellant within six months which was time allowed by the
Court. When the appellant did not honour its commitment under settlement,
C 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.
D 30. We have noticed the judgment of this Court in Mahua Biswas
(Smt)(supra) where this Court had activated the wife’s claim of
maintenance to put her at same position before parties compromised in
proceeding under Section 125 Cr.P.C. Although learned counsel for the
appellant submits that the judgment of this Court in Mahua Biswa (Smt)
E is not applicable, we do not agree with the submission. In the above
case, order was passed by the Magistrate giving maintenance of token
amount against which she moved to the High Court for revision where it
was noticed that matrimonial case between the parties had stood
compromised and one of the terms was that wife would go and live with
her husband. The wife went to live with husband but later the spouse fell
F apart. Husband contended that the orders of maintenance could not be
revived as there had arisen a fresh cause of action. The High Court had
set aside the order of maintenance leaving the wife to approach again
the Criminal Court for appropriate relief. This Court allowing the appeal
had activated the wife’s claim of maintenance and put her in the same
G position as before. The above judgment clearly indicates that this Court
adopted the Course which avoided injustice to the wife.
31. We, thus, are of the considered opinion that the 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
H passed on settlement is not hit by the embargo contained in Section 362
SANJEEV KAPOOR v. CHANDANA KAPOOR & ORS. 681
[ASHOK BHUSHAN, J.]

Cr.P.C. The submission of learned senior counsel for the appellant that A
Section 362 Cr.P.C. prohibit the Magistrate to pass the order dated
05.01.2019 cannot be accepted.
32. The High Court did not commit an error in rejecting the
application filed by appellant under Section 482 Cr.P.C. The inherent
powers of the High Court given under Section 482 Cr.P.C. are to be B
exercised to secure the ends of justice. The Family Court in passing
order dated 05.01.2019 has done substantial justice in reviving the
maintenance application of the wife which need no interference by the
High Court in exercise of its jurisdiction under Section 482 Cr.P.C.
33. We, thus, do not find any merit in this appeal. The appeal is C
dismissed.

Devika Gujral Appeal dismissed.

D

E

F

G

H