KANTABEN MAFATLAL Vs. GOVINDBHAI MANUBHAI PATNI

JUDGEMENT

(1.) Here in this Criminal Revision Application, there arise two important questions for my consideration. They are Firstly - "Whether the husband who has been ordered to pay the maintenance under S.125 of the Criminal Procedure Code, 1973, to his wife and the child by the learned Magistrate and has in fact by this time indisputably continuously paid the same and that too in all to the tune of Rs. 35,000.00, but then incidentally enough as the misfortune would have been by sheer stroke of ill-luck he becoming the victim of the hostile circumstances beyond his control rendered unemployed, with no bank balance or any other property at hand to fall back upon rather too poor, and accordingly, as a result was unable to pay and started committing default after default every month in paying regular maintenance amount, accumulating into arrears ultimately rising beyond reach amount of Rs. 17,000.00, can he under such no-fault bewitching circumstances be straightway fastened with the rough and ready allegation that he intentionally did not pay the maintenance ordered without there being any "just and sufficient cause" and as an offshoot consequently necessitating the ultimate order of sending him to the prison ?". Secondly, whether before sending any such unfortunate husbands to the jail, is there something like an unwritten Code of the "social justice" based upon the humanistic philosophy which unexceptionably impinging, warranting upon the judicial conscience of the Court to initiate of its own some honest, sincere efforts to resolve the economic stalemate between the husband and wife by finding out some job opportunities, if possible for both of them whereby further with the active help and assistance of the Special Legal Aid Committee [to be set-up in the matter of reconciliation and ultimately resolving the problems difference between the husband and wife], some reasonable way could be found out to save the situation in overall interest of justice ? NOTE : No doubt, there is indeed nothing in black and white anywhere in the Code calling upon the learned Magistrate conducting maintenance proceedings under S.125 of the Code to perform such an additional duty to explore some such possibilities by way of extra exerting itself and help, assist economically suffering and stranded husband and wife caught in an enervating struggle for their very survivals in the quite peculiar circumstances like the one at hand . But then, I am afraid, this is perhaps too peevish, ordinary and bookish approach to look at the human problem involved in the maintenance proceedings between the husband and wife begging justice from the Court. For doing true and substantial social justice many a time mere reading of the law and case law by itself is not enough firstly because the life is larger than the law and, Secondly because without beating heart for the justice further activated by crusading judicial conscience and spirit, the Judge and the judicial system would always remain lifeless formality, only shadow and not the substance . In this view of the matter, I firmly believe that today where the law is silent but certainly does not necessarily expressly prohibit doing any just good act of overall substantial justice in favour of the needy party and as against that while not doing right thing at the right moment, passively watching the nightmare situation of hopeless, helpless husband, if the judicial conscience starts raising voice, alarm, revolting, urging itself to do some real and substantial justice to the parties before it and further still while not responding to its internal call, if it starts suffering the pangs of the scorpion-bite, unbearable injustice then it must definitely rise to the occasion and do the needful, and there is indeed nothing wrong in this judicial world if in some such given exceptional cases the Court while on its way to the quest for truth and justice beats altogether new path by bringing about new chapter and span of fresh life to the problem involved to reach the ultimate destination of the substantial justice .Eventually and ultimately the Courts, Judges and laws etc. etc., are but avenues and instruments of justice. The justice is the centre around which the entire system consisting of the rest of paraphernalia is expected to revolve and serve . In other words, there must be the sound philosophy of the substantial justice to beacon the path which judicial conscience has got to walk unless reasonably prohibited. We all quite well know that many good social pieces of legislation which we find today were certainly not there in those old days of the British or any other previous regimes. But then good object and spirit underlying the social welfare services ultimately did get the bodies to be borne by getting into enacted several special legislations, now buoyantly holding the field in country catering to the number of urgent needs of society today. When that is the truth and the ultimate destiny unquestionable, then, the line of justice-action which is actually taken and thereby proposed here to be set as a goal to be followed by the concerned Magistrates in cases where an unemployed husband for no fault of him has been rendered unable to pay regular monthly maintenance and, therefore, efforts must be made leaving no stone unturned to give him some employment or opportunity of self-employment even and which this Court in fact had done in the instant case. Here, at this stage, it will indeed not be out of place to state that in case of S. V. Doshi v. State of Gujarat and Ors., reported in 1992(1) GLR 617 : 1992(2) GLH 81, this Court had made the similar efforts by requesting (1) The Director, Social Welfare Department, Gandhinagar; (2) Director, Social Welfare Department, Gandhinagar/Ahmedabad; (3) Institute of Deaf and Dumb Ahmedabad, to give the employment to handicapped husband and/or wife or both on humanitarian ground. This was a case wherein the husband who was deaf and unemployed was proceeded with for maintenance under S.125 of the Code by his wife who was dumb. This method of doing the substantial justice in its stricter sense may not be the 'law' in letter today. Infact, while enacting the law, many a times, despite best of care and intentions, many good things which ordinarily ought to have been incorporated may not find their due place there due to little haste, oversight or for the reasons the same could not be envisaged and foreseen . This is bound to happen, unless of course quite contrary to the proclaimed policy and the object of the Act, sometimes some vested interest through the subtle instrumentality of the draftsman plays calculated mischief making the law weak and vulnerable, turtle and turtle not reaching the goal set-at . But then, when the Court is called upon to do the justice - real and substantial, it is always vested with the 'judicial discretion' when mixed with pragmatism and activism it serves the grand real purpose of delivering the justice aimed at. In this view of the matter, the Court is supposed to be "justiceoriented" and where law sometimes quite inadvertently fails little short of its ordinary expectations, its pragmatism and activism should be culled-in-aid to stand by the justice. Further, there may not be a law available in the stricter sense, but nonetheless its noble object, spirit will surely find its way some day in future by way of some such much needed mandatory social, beneficial provision in the Act guiding the Courts on the ultimate path of justice . This special way of doing justice quenches, rather deeply satisfies the intense thirst for the Justice . Every Court must necessarily as a "Court of Justice", bear in mind that the family problem/dispute in Court in backdrop of the hostile socio-economic situation is always and invariably required to be handled like by loving-parents with the special and ultra-care where sympathy and persuasion with kind words narrowing the differences between the two making them see eye to eye and directly talk with each other may ultimately bring about the good result of, at least narrowing if not entirely sinking the differences between the two . In this particular manner only, I think the substantial justice could be better brought about between the parties serving the ultimate cause of justice. In fact, the cause of justice can never, never remain barren or indefinitely suppressed, suspended, unidentified and unrecognised and accordingly ultimately it has got to and does find its way in some legislation being enacted sooner or the latter . In every age, for every injustice, at one stage there is always some cry for justice, and society with all its ingenuity and efforts ultimately finds out some ways and means to get justice. One such way and mean is enacting the law . This is how the law has developed and will continue to develop and progress tending to solve the past, existing or any other sociopolitic economic problems that may arise in future to serve the society . The medicine, law, judicial pragmatism and activism and all sort of inventions and the social reformations on this earth always and invariably follow, and chase out the disease, injustice and satisfy all necessities of life and (eliminate) social taboos and backwardness, to be ultimately taken care of. In other words, "effects" has got to follow the "cause" as "echo" responds to the "sound". This is quite universal, inevitable, invariable unwritten but unquestionable law of nature which manifests itself sooner or later anytime in course of its cycle . 'Law' the collective wisdom by way of the quintessence of quite prolonged experience of the prudent people stands for the justice, and tends to guide and delivers the same. Accordingly, when the said law sometimes for whatever reason falls little short to bring about the substantial justice, in such an hour of need and emergency, the judicial experience, wisdom and activism of the Court must necessarily rise to the occasion and prevail throwing itself whole-heartedly to be the connecting bridge between the seekers of substantial justice and the absence of the express provision of law . When such an opportunity when it arise is grabbed, it is indeed one of the noblest and unforgetful most cherished and priceless pride moment in the life of any Judge . Rather say it is his (Judge's) life's historical moment of "Tryst with Justice" . The thought-seed of the potential substantial justice that is being produced in this judgment to day shall be surely seeded in the legislature sprouting one day getting bearing the fruits of "substantial justice" enacted and recognised by way of provision in the law itself . But then till such an hour of rendezvous arrive and the Parliament so acknowledges and embraces the views of this Court making it the "law of the land" and empowers and enlightens up the Court by making some provision in help of the helpless husband, this emergency light in this judgment shall like pole-star or the "light -house" guide the learned Magistrates in right direction to do the real and substantial justice to the parties in peculiar cases like the one at hand . No doubt for the timepressed and over-burdened embarrassed learned Magistrates sometimes also with limited experience at their back this exercise of the substantial justice is little taxing . Not only that but in family dispute cases particularly between the husband and wife or brothers, brothers and sisters, father and son and so on and so forth, parties many a times adopt such die-hard approach, and uncompromising postures that the learned Magistrate under some high-voltage disposal pressure getting unnerved and jittery in a weaker moment readily succumbs to the thinking rather believes that any efforts of persuasion to bring about the compromise ultimately would be an exercise in futility and, accordingly, no honest, hard and sincere efforts are made by him to bring about the settlement between the parties. If at all, in a given case, sometimes, some efforts are made, then even the same are given up midway finding some excuses . It is here, where honesty, sincerity, hard work, persuasion, capacity and perservance and the ultimate love for the cause of doing the substantial justice of the learned Magistrate is in focus and at total test which he must true to his conscience making good honest efforts get through." In such circumstances, the million pound question that the learned Magistrate should invariably ask his conscience is whether when the substantial justice demands of judicial conscience to walk the path charted above, should he abandon, surrender and stop there only at the threshold of literal justice only taking illusory satisfaction of doing justice or should he instead with further sense of the judicial unabdictable duty, undaunted spirit, firmness and will and the resourceful penetrating intelligence find out the ways and means ahead for the real and substantial justice on the lines suggested above ? This obviously ought to be the self-introspectory question every learned Magistrate should ask himself when befaced with some tricky, slippery problem making him little double mind "whether to do or not to do the substantial justice .." In substance, any act of the social good for social justice undertaken or done by the Court in good-faith as far as it is in not contrast or in conflict with any provision of the law or in any other manner bringing about injustice to any party can certainly be rather ought to be performed and undertaken, of course ultimately depending upon the inherent strength, will, experience, and capacity of the concerned Court to stand by to the cause of the substantial justice . It is indeed quite rightly said and believed that the real justice flows only from the kind pious sensitive heart caring for the suffering of the human-beings, society, committed to the letter and spirit of the Constitution of the country, led by the scintillating-humanitarian and overall social justice oriented intelligence. Without any sense of Commitment or orientation to the public interest, to the social and substantial justice - to be Judge simpliciter is too dull, robot-like if not life-less entity .For this one has got to be open-minded, sensible, sensitive and responsive to the demands and urges of the seekers of Justice . Thus, the quality of justice ultimately depends upon the quality of the Judge . In other words, justice which the people ultimately get is nothing but the quality, character and fragrance or otherwise of the Judge. This is why while doing justice, the Judge has to be extremely careful ..

(2.) To state few relevant facts briefly necessary to dispose of this application, Kantaben, the present petitioner is the wife of the opponent-Govindbhai Manubhai and has a child of the said wedlock delivered on 20-8-1981. It also further appears that on the ground of being driven away and neglected, the petitioner filed maintenance application under S.125 of the Code of Criminal Procedure, 1973, wherein in the year 1987, pursuant to compromise between the parties, the learned Magistrate by an order dated 18-7-1987 granted Rs. 100.00 to the petitioner and Rs. 150.00 for her minor child from the date of application. This amount of maintenance was subsequently enhanced to Rs. 250.00 for the petitioner and Rs. 300.00 for the child from 26-4-1989. It is further alleged that since the opponent has subsequently remarried with another woman without obtaining divorce from the petitioner, she had filed a Criminal Complaint No. 2016 of 1987 against her husband for the alleged offences punishable under Secs. 498 and 114 of I.P.C. before the learned Magistrate. It also further appears that since the opponent-husband had failed to deposit arrears of Rs. 23,500.00 by way of maintenance upto 12-12-1995, on the application Misc. Criminal Application No. 205 of 1995 made by the petitioner before the learned Metropolitan Magistrate, Court No. 2, Ahmedabad, an order dated 11-6-1996 came to be passed against him for simple imprisonment for 406 days. This came to be challenged by the opponent-husband before the learned City Sessions Judge, Ahmedabad, by way of Criminal Revision Application No. 164 of 1996, which came to be partly allowed by the judgment and order dated 29-11-1996, ordering release of the respondent-husband from 11-12-1996. It is this judgment and order, which has been brought under challenge by the petitioner-wife before us by filing the present Criminal Revision Application.

(3.) When this Revision Application was placed for admission before us on 9- 12-1996, we had passed the following order :