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Embargo On Review U/S 362 CrPC Not Applicable To Family Courts For Any Provision On Maintenance Under Chapter IX: Kerala High Court
Tellmy Jolly
10 Aug 2023 8:47 AM GMT
The Kerala High Court on Monday held that the embargo on courts to review their judgment under Section 362 CrPC will not apply to any of the provisions on Maintenance under Chapter IX of the Code.Chapter IX contemplates Order for Maintenance of Wives, Children and Parents.The petitioner-husband herein had challenged a family court's order reviewing its order passed under Section 128 CrPC...
The Kerala High Court on Monday held that the embargo on courts to review their judgment under Section 362 CrPC will not apply to any of the provisions on Maintenance under Chapter IX of the Code.
Chapter IX contemplates Order for Maintenance of Wives, Children and Parents.
The petitioner-husband herein had challenged a family court's order reviewing its order passed under Section 128 CrPC for enforcement of maintenance order.
Petitioner submitted that Section 125 of the Code empowers the courts to cancel the order granting maintenance and Section 127 empowers the court to alter the maintenance allowance. Hence, it is only these provisions that are immune from embargo under Section 362 CrPC.
Section 128 deals with enforcement of the order of maintenance, which does not contemplate any alteration after pronouncement of the order and thus general principles of review would apply, petitioner argued.
Disagreeing, Justice VG Arun held,
“…insofar as the objective of Chapter IX of the Code is to ensure payment of reasonable amount for the maintenance of neglected/deserted wives, children and parents and enforcement of the provisions is through Family Courts, the embargo under Section 362 will not apply to any of the provisions in the Chapter, including Section 128.”
The counsel for the respondents (spouse and children) submitted that the Family Court reviewed the maintenance order as there was an error apparent on the face of the record. Relying upon Sanjeev Kapoor v. Chandana Kapoor and Others (2020), the counsel contended that final order in proceedings under Section 125 CrPC was not rendered functus officio and hence the embargo under Section 362 will not apply. It was averred that there cannot be an isolated reading of Section 128 to prohibit review.
The Court relied upon various decisions of the Apex Court and observed that Family Courts are set up to deal with family disputes and it is different from ordinary civil proceedings. The Court noted that family courts construe the provisions liberally as they are created specifically to deal with dispute resolutions relating to marriage and family affairs.
Justice V G Arun referred to the division bench order in Anjana T v J A Jayesh Jayaram and Another (2022), to observe that family courts are not strictly bound by rules of procedure followed in adversarial litigation, as it emphasizes more on the parties than on the process of litigation.
The Court thus noted that if final enforcement order passed under section 128 cannot be reviewed by the Family Courts due to the prohibition under Section 326 of CrPC, then the litigants will have no remedy rather than approaching the High Court. The Court noted that such an interpretation will render the objective of Family Courts to help the parties, futile. It noted thus:
“If the argument is accepted, the resultant position would be that, in spite of finding an error apparent on the face of the order dismissing the execution petition, the Family Court will have to remain helpless, compelling the hapless wife and children to approach the High Court. That, definitely, is not the objective of Section 125 or the other provisions in Chapter IX of the Code.”
Thus, the Court held that there was no prohibition on Family Courts in reviewing a final order passed under Section 128 of CrPC. It upheld the review order passed by the Family Court and dismissed the petition.
Case title- Abdul Mujeeb v Suja
Case number- OP (CRL) 620/2022
Counsel for petitioner- Advocates T Madhu, C R Saradamani, Shahid Azeez, B K Rajagopal, Renjish S Menon
Counsel for the respondents- Advocates V Beena, S Naushad, M Thaha
