JAGIR SINGH Vs. RANBIR SINGH

JUDGEMENT

(1.) Jagir Singh, the appellant in this appeal by special leave, was married to Kirpal Kaur in 1951. Husband and wife became estranged in 1954, since when they have been living separately. Ranbir Singh, the issue of the marriage, was born in 1954. Jagir Singh married again and it is said that he has a son and a daughter by the second wife. On 25th May, 1971, Kirpal Kaur and Ranbir Singh filed an application for maintenance under S. 488 of the Criminal Procedure Code, 1898. One of the defences raised by the appellant to that application was that Ranbir Singh was a major and, therefore, not entitled to claim maintenance under Section 488. The Magistrate held that Ranbir Singh was a student who was unable to maintain himself and, therefore, the question whether he was a major or a minor was immaterial. On 19th May, 1973, he made an order awarding maintenance at the rate of Rs. 200 per month to Kirpal Kaur and Rs. 75 per month to Ranbir Singh. Jagir Singh filed a revision petition before the Sessions Judge. By consent of the parties, the Sessions Judge made a reference to the High Court recommending that the award of maintenance in favour of the wife should be reduced to Rs. 150 per month and that the award of Rs. 75 per month to the son should be confirmed. The reference was accepted by the High Court.

(2.) The Criminal Procedure Code 1898 was repealed and the Criminal Procedure Code (1974) was enacted in its place. The new Code came into force on 1st April, 1974. On 3rd May, 1974, the appellant made an application before the Magistrate, purporting to be under Section 127 of the new Code, for cancellation of the order of maintenance in favour of the son on the ground that the son had attained majority and did not suffer from any infirmity or abnormality which prevented him from maintaining himself. It was claimed on behalf of the appellant that under the new Code it was not permissible to award maintenance or enforce an order for maintenance in favour of a child who had attained majority and who was not unable to maintain itself by reason of any physical or mental abnormality or injury. On 3rd June, 1974, the son filed a counter admitting that he had attained majority but claiming that he was still a student, unable to maintain himself. The son claimed that the order in his favour had been validly passed under the old Code and continued to remain in force notwithstanding the enactment of the new Code. On 9th May, 1975, the learned Magistrate allowed the application of the father under Section 127 of the Criminal Procedure Code (1974) and cancelled the order for maintenance made earlier in favour of the son. Ranbir Singh, the son, filed a Revision Application before the Sessions Judge. It was dismissed on 12th March, 1976. The learned Sessions Judge held that the order made under Section 488 of the old Code could survive under Section 484 (2) of the new Code if there was a corresponding provision under the new Code which enabled the award of maintenance to a major child. Since there was no such corresponding provision the order under Section 488 in favour of Ranbir Singh ceased to be in force. Ranbir Singh then filed a Revision Application before the High Court of Punjab and Haryana which was allowed on 5th December, 1977. The High Court held that notwithstanding the change in the law which disentitled a major child from claiming maintenance, Section 125 of the new Code did correspond to Section 488 of the old Code. Therefore, the order for maintenance in favour of Ranbir Singh was saved by Section 484 (2) of the code of (1974). Jagir Singh has preferred this appeal after obtaining special leave from this Court under Article 136 of the Constitution.

(3.) Shri R. S. Narula, learned counsel for the appellant contended that the Revision Application to the High Court was incompetent as it was barred by the provisions of Section 397 (3) of the Code of Criminal Procedure (1974). He argued that the right of the respondent to invoke the revisional jurisdiction of a superior Court became exhausted when he invoked the revisional jurisdiction of the Sessions Judge. Shri Narula further contended that under Section 125 of the Criminal Procedure Code (1974), a major son who did not suffer from any physical or mental abnormality or injury which prevented him from maintaining himself was not entitled to get an order for maintenance in his favour and that an order made in favour of such a son under Section 488 Criminal Procedure Code of 1898 was not saved either by Section 484 (2) of the Code of Criminal Procedure (1974) or Secs. 6 and 24 of the General Clauses Act. Shri S. K. Mehta, learned counsel for the respondent submitted that the revision application before the High Court could be treated and maintained as one directed against the order of the Sessions Judge rejecting the Revision Application made to him. In any case he argued that the Revision Application could be treated as one under Article 227 of the Constitution. He contended that the order of the Magistrate under Section 488 of the Criminal Procedure Code 1898 continued to be in force and that it could not be cancelled merely because Section 125 did not provide for the award of maintenance to a major son who did not suffer from any abnormality or injury.