Laws are necessary to maintain the individual and social behavior in
particular manner with a view to protect the rights of individual as well as
group. Law decides, declares rights and liability of people and it is duty of
everyone to abide by it. Without law there would be chaos in the society. Social
change also warrants laws to be enacted, reformed, amended or repealed. It is a
continuous process and is necessary to maintain law and order in the Society.
Whenever legislature feels inadequacy in the existing law to fulfill its purpose,
necessary provisions are made in the laws by way of amendment of parent Act. To
fulfill the object of law, sometimes provisions are added or deleted.
While enacting law or amending law parliament has to keep in mind its
Constitutional limitations as also the safeguards provided to citizens. It is
obligatory on part of legislature that all laws shall be consistent with part
III of the Constitution. Here the discussion is made with intent to discuss
whether the provision of recovery of interim maintenance under Section 125 of
Code of Criminal Procedure is in conformity with Article 21 and 14 of the
Constitution of India.
Before the year 2001 there was no express provision of interim maintenance in
the Code of Criminal Procedure. After filing of application in court under
Section 125 of the Code of Criminal Procedure, 1973, Complainant had to wait for
long time for grant of relief by the Court. Consequently, during pendency of the
proceedings, applicants had to suffer more hardship. By the Amendment Act 2001
the word 'interim maintenance' is placed in Section 125 adjacent to word
The effect of making such type of analogy of words maintenance
in section 125 of Code of Criminal Procedure caused the procedure
for recovery of 'maintenance' as existed in the principle Act applicable as it
is to the recovery of interim maintenance
It is natural and fundamental duty of a man to maintain his wife, children and
parents so long as they are unable to maintain themselves. Section 125 of the
Code of Criminal Procedure deals with the order for maintenance of wives,
children and parents. Sub-sec. (3) of Section 125 deals with enforcement of an
order of maintenance and interim maintenance. Section 125, in so far as material
for the purposes of the present discussion, may be quoted:
125. Order of maintenance of wives, children and parents
- If any person so ordered fails without sufficient cause to comply with
the order, any such Magistrate may, for every breach of the order, issue a
warrant for levying the amount due in the manner provided for levying fines,
and may sentence such person, for the whole, or any part of each month's
[allowance for the maintenance or the interim maintenance and
expences of proceeding, as the case may be,] remaining unpaid after the
execution of the warrant, to imprisonment for a term which may extent to one
month or until payment if sooner made:
- No wife shall be entitled to receive an [allowance for the maintenance
or the interim maintenance and expences of the proceeding, as the case may
be,] from her husband under this section if she is living in adultery, or
if, without any sufficient reason, she refuses to live with her husband, or
if they are living separately by mutual consent.
- 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.
As per the former part of Section 125 (3) regarding the recovery of maintenance,
the recovery of maintenance or interim maintenance may be made by applying the
procedure of issuing warrant for levying the amount due in the manner provided
for levying fines i.e. by way of applying provisions of section 421 of Code of
Criminal Procedure i.e. by way of:
Inconsistency of Sub-section (3) of Section 125 of Cr.P.C. with Article 21 and
14, of the Constitution of India:
- Issuing a warrant of attachment and sale of any movable property belonging
- Issuing a warrant to the Collector of the district for realize the amount
from movable or immoveable property of the defaulter;
And as per the later part of Sec. 125(3) in case of maintenance or
maintenance remaing unpaid after the execution of the warrant the Magistrate may
Sentence such person, for the whole or any part of each month's allowance for
the maintenance or interim maintenance and expenses of proceeding, as the case
may be, to one month or until payment if sooner made:
Further as per sub-sec (4) & (5) of Section 125, the Magistrate shall cancel the
order of maintenance or interim maintenance on proof of, if:
- Wife is living in adultery.
- Without any sufficient reason she refuses to live with her husband or
- If they are living separately by mutual consent.
It means an interim maintenance order may be changed, cancelled, varied or
modified at the time of making final order and thereby status and effect of
interim order may be legally wiped out. Obviously the status of an interim
maintenance order is flexible and indefinite unless and until it is confirmed by
the final order of maintenance.
Written By Shri. Kiran S. Pawar
Article 21 of Constitution of India:
Article 21.- Protection of life and personal liberty.
No person shall be deprived of his life and personal liberty except according to
procedure established by law.
As per Article 21 of the Constitution, personal liberty of a person shall not be
taken away otherwise than in accordance with procedure established by law. Now
it is well recognized that such procedure established by the law must be fair,
just and reasonable. The principle of fair, just and reasonability of procedure
of law is more particularly discussed in Maneka Gandhi's case.
Procedural fairness, justifiability and reasonableness are the principles of Law
and Justice. Before reaching to the Constitutional limitations, restrictions or
obligations for fomationm of Law, Law has its own principle and it stands on its
own principle, quality and standards. Fairness, justifiability and
reasonableness is the basic and inseparable part of the Law, and ultimately is a
Fundamental Right enshrined in Article 21 of the Constitution.
In relation to proceeding under Section 125 of Cr.P.C. in series of judicial
pronouncement it was held that the proceedings under section 125 of Cr.P.C. are
in the nature of civil proceedings though the criminal process is applied
for the purpose of summary and speedy disposal of such matter in the
interest of society. The person against whom claim for maintenance is made
is not accused of any offence; nor can he be convicted or sentenced. The
proceedings against him are essentially of a civil nature, since the claim
against him is essentially of a civil nature.
Here we are discussing validity of procedure of execution of interim maintenance
on the touchstone of Principle of Restitution. Hon'ble Supreme Court in case
of South Eastern Coalfields Ltd. vs State of Madhya Pradesh (2003 AIR SC
4482), while discussing the Principle of Restitution Their Lordships observed that:-
Para No. 24:
24. In our opinion, the principle of restitution takes care of this submission.
The word 'restitution' in its etymological sense means restoring to a party on
the modification, variation or reversal of a decree or order, what has been lost
to him in execution of decree or order of the Court or in direct consequences
of a decree or order (See: Zafer Khan & Ors vs. Board of Revenue, U.P. & Ors.,
AIR 1985 SC 39).
In law, the term restitution is used in three senses:
- return or restitution of some specific thing to its rightful owner or
- compensation for benefits derived from wrong done to another;
- compensation or reparation for the loss caused to another.
(See Black's Law
Dictionary, Seventh Edition, p. 1315). The Law of Contrats by Jhon D. Calamari & Joseph M. Perillo has been quoted by Black
to say that restitution is an ambiguous term, sometimes referinng to
disgorging of something which has been taken and at times referring to
compensation for injury done. Often, the result in either meaning of the term
would be the same. ......... Unjust impoverishment as well as unjust enrichment
is a ground for restitution.
If the defendant is guilty of a non-tortuous misrepresentation, the measure
of recovery is not rigid but, as in other cases of restitution, such factors
as relative fault, the agreed upon risks, and the fairness of alternative
risk allocations not agreed upon and not attributable to the fault of either
party need to be weighted.
The principle of restitution
has been statutorily recognized in Sec. 144 of the Code of Civil Procedure 1908.
Section 144 of the C.P.C. speaks not only of a decree being varied, reversed,
set aside or modified but also includes an order on par with a decree. The scope
of the provision is wide enough so as to include therein almost all kinds of
variation, reversal, setting aside or modification of decree or order.
The interim order passed by the court merges into a final decision. The validity of
an interim order, passed in favour of a party, stands reversed in the event of
final decision going against the party successful at the interim stage. Unless
otherwise ordered by the court, the successful party at the end would be
justified with all expediency in demanding compensation and being placed in the
same situation in which it would have been if the interim order would not have
been passed against it.
The successful party can demand:
- the delivery of benefit earned by the opposite party under the interim
order of the court, or
- to make restitution for what it has lost; and it is the duty of the
court to do so unless it feels that in the facts and on the circumstances of
the case, the restitution would far from meeting the end of
justice, would rather defeat the same.
Undoing the effect of an interim order by resorting to principles of
restitution is an obligation of the party, who has gained by the interim
order of the court, so as to wipe out the effect of interim order passed
which, in view of the reasoning adopted by the court at the stage of final
decision, the court earlier would not or ought not to have passed. There is
nothing wrong in an effort being made to restore the parties to the same
position in which they would have been if the interim order would not have
25. Section 144 of the C.P.C. is not the fountain source of restitution; it is
rather a statutory recognition of a pre-existing rule of justice, equity and
fair play. That is why it is often held that even away from section 144 the
court has inherent jurisdiction to order restitution so as to do complete
justice between the parties.
In Jai Berham vs Kedar Nath Marwari, (1922) 49 I.A. 351, their
Lordships of the privy council said:
It is the duty of the Court
under section 144 of the Civil Procedure Code to place the parties in the
position which they would have occupied but for such decree or such part thereof
as has been varied or reversed. Nor indeed does this duty or jurisdiction arise
merely under the said section.
It is inherent in the general jurisdiction of the
court to act rightly and fairly according to circumstances towards all parties
involved. Cairns, L.C., said in Rodger vs Comptoir d'Escompte de Paris, (1871) L.R. 3 P.C.:
One of the first and highest duties of all courts is to take
care that the act of the court does no injury to any of the suitors and when the
expression, the act of the court is used, it does not mean mearly the act of
primary court, or of any intermediate Court of Appeal, but the act of the Court
as a whole, from the lowest court court which entertains jurisdiction over the
matter up to the highest Court which finally disposes of the case. This is also
on the principle that a wrong order should not be perpetuated by keeping it
alive and respecting it, A. A. Nadar vs S. P. Rathinasami, (1971) 1 MLJ
220. In the exercise of such inherent power of the Courts have applied the
principles of restitution to myriad situations not strictly falling within
the term of section 144.
26. That no one shall suffer by an act of the Court is not a rule confined to
an erroneous act of the court; the 'act of the court' embraces within its sweep
all such acts as to which the court may form an opinion in any legal proceedings
that the court would not have so acted had it been correctly apprised of the
facts and the law.
The factor attracting applicability of restitution is not the
act of the Court being wrongful or a mistake or error committed by the court;
the test is whether on account of an act of the party persuading the Court to
pass an order held at the end as not sustainable, has resulted in one party
gaining an advantage which it would not have otherwise earned, or the other
party has suffered an impoverishment which it would not have suffered but for
the order of the court and the act of such party.
The quantum of restitution,
depending on the facts and circumstances of a given case, may take in to
consideration not only what the party excluded would have made but also what the
party under obligation has or might reasonably have made. There is nothing wrong
in the parties demanding being placed in the same position in which they would
have been had the court not intervened by its interim order when at the end of
proceedings the court pronounces its judicial verdict which does not match with
and countenance its own interim verdict.
Whenever called upon to adjudicate,
the court would act in conjunction with what is the real and substantial
justice. The injury, if any, caused by the act of the court shall be undone and
the gain which the party would have earned unless it was interdicted by the
order of the court would be restored to or conferred on the party by suitably
commanding the party liable to do so. Any opinion to the contrary would lead to
unjust if not disastrous consequences.
Litigation may tern into a fruitful
industry. Though litigation is not gambling yet there is an element of chance in
every litigation. Unscrupulous litigants may feel encouraged to approach the
courts, persuading the court to pass interlocutory orders favourable to them by
making out a prima facie case when the issues are yet not to be heard and
determined on merits and if the concept of restitution is excluded from the
application to interim orders, then the litigant would stand to gain by
swallowing the benefits yielding out of the interim order even though the
battle has been lost at the end.
This cannot be countenanced. We are therefore, of the opinion that the
successful party finally held entitled to a relief assessable in terms of
money at the end of the litigation, is entitled to be compensated by award
of interest at a suitable reasonable rate for the period for which the
interim order of the court withholding the release of money had remained in
As the principle of restitution applies to the decree and orders, it will also
be applicable to the interim order passed during proceeding because all interim
orders merge into final decision. Application of this principle with interim
order implies that any interim order passed by the Court if finally changed or
cancelled, the successful party at the end certainly has a right to have
compensation and being placed in the same situation in which it would have been
if the interim order had not been passed against it.
If we apply the Principle of Restitution to the procedure of execution of
order of interim maintenance, it appears that for the execution of order of
interim maintenance the mode envisaged in former part of sec 125(3) i.e. mode of
attachment and sale of property if applied and finally interim maintenance order
stands cancelled, varied, or modified then opposite party may be placed in its
original place by way compensation or other mode.
On the other hand if, the mode
envisaged in later part of sec 125(3) i.e. arrest and detention of defaulter in
prison for the execution of interim maintenance order is applied and if finally
interim order stands cancelled, varied, or modified, then in such situation the
loss of personal liberty of opposite party cannot be restored or compensated in
any manner whatsoever. Therefore it appears that the procedure of execution of
order of interim maintenance envisaged in later part of Section 125(3) i.e. by
way of arrest and detention in prison, is not in conformity with the 'Principle
of Restitution'.¬ Here the point of consideration is whether such procedure can
be said to be fair, just and reasonable as contemplated under Article 21 of the
Constitution of India? As per the principle of Principle of Restitution, the
mode or procedure for execution of order of interim maintenance should be within
the scope and periphery of Restitution.
One more aspect which needs to be discussed is that suppose if the interim order
of maintenance is not changed and confirmed by the final decision of the
Application and during pendency of application opposite party suffered by the
consequences of order of sentence to imprisonment for amount remaining unpaid
even then at the the time of execution of final order of maintenance this section
permits to apply the same measures for the amount remaining upaid which has been
merged into final maintenance order.
Undoubtedly the proceedings under this section are not punitive. The object is
not to punish a person for neglet to maintain those whom he is bound to
maintain. Sending the hunband to jail is only coercive measure to satisfy the
amount of interim maintenance remaining unpaid.
Even though such type of measure
is not punitive or such suffering does not disqualify the husband otherwise for
any purpose, certainly it affects the fundamental right guaranteed under Article
21 of the Constitution of India i.e. it violates right to life and personal
Therefore the procedure of execution of interim maintenance contemplated under
Section 125(3) by imposing sentence of imprisonment can not be said to be fair,
just and reasonable as the status of interim order is flexible and temporary one
and such order may be changed or cancelled at the time of making final Order,
and opposite party may have every chance to get success in its case finally and
to have cancelled the interim maintenance order and thereby has a right of
restitution for what he has lost on account of interim order.
Article 14 of the Constitution of India:
Article 14. Equality before law:
The State shall not deny to any person equality before law or the equal
protection of the laws within the territory of India.
The Article 14 of the Constitution guarantees the right of equality to the
citizen. This Article incorporates the principle of equality between the
equals. The principle also implies that like should be treated alike and not
unlike be treated alike. The things which are equal in nature, character,
status or quality should be treated in equal manner.
If we consider legal status of order of granting interim maintenance and
order of granting final maintenance it would appear that both orders stand on
different footings. The procedure contemplated under Sec. 125 of Cr. P.C. is
summary in nature. At the time of deciding liability of interim maintenance,
neither any merit of case nor the evidence or defence of the opposite party is
taken in to consideration.
It decides only on the basis of prima facie case at
pre-trial stage of the case i.e. when the points are yet to be framed and
determined on merits and the rights and liabilities of the parties are not yet
decided on merits. Such order even may be passed ex-parte or even on affidavits.
On the other hand the main application for maintenance needs to be decided on
the basis of appreciation of oral as well as documentary evidence adduced by
both the parties to the litigation and thereby rights and liabilities of both
parties are finally fixed.
It seems that legal status of both of these orders are not same and therefore
measures for the execution of these both orders should not be same. There should
be reasonable classification or reasonable discrimination, in the execution
procedure between the execution of order of interim maintenance and execution of
order of final maintenance, in order to qualify the Principle of Equality
envisaged in Article 14.
As per the Doctrine of Severability when a particular provision of the statute
violates the fundamental right or cross the constitutional limits and if such
provision can be separated from rest of the provisions of statue, then the
offending provision may be declared void by the Court and not entire provision
or statute. The courts have power to declare any law as unconstitutional if it
is inconsistent with the Constitution of India.
The laws which take away or abridge the fundamental rights are liable to be
struck down as ultra vires or void by the courts exercising the power of judicial
review. Therefore it appears that the procedure contemplated under Section 125
(3), as amended by Amendment Act 2001, for the execution of order of interim
maintenance, needs to be reviewed on the touchstone of provisions of Article 13
, B.S.L. LL.B. Advocate, Islampur
District Sangli (Maharashtra) 415409