T.N.K. Singh, J.

1. The power and jurisdiction of the High Court in an application under Section 19(4) of the Family Courts Act, 1984 against the judgment and order of the Family Court disposing of the application for maintenance under Section 125, Cr.P.C., is akin to revisional jurisdiction of the High Court under Section 401 read with Section 397 of the Cr.P.C.

2. Heard Mr. S. Rupchandra Singh, learned Counsel for the petitioner and also Mr. R.K. Nokulsana Singh, learned Sr. Counsel assisted by Mr. R. K. Milan, learned Counsel appearing for the contesting respondent No. 2, Shri Akham Joykumar Singh.

3. The short fact which gives rise to the filing of the present application is that petitioner No. 1, Shri Akham Ibobi Singh, aged about 74 years and petitioner No. 2, Smt. Akham (Ongbi) Chaobi Devi, aged about 71 years are the parents of the respondents. The respondent No. 1, Shri Akham Biradhwaja Singh is the eldest son of the petitioners and he was educated up to M.Sc. (Physics) and was employed as Lecturer in Physics under the Department of Higher Education, Govt. of Manipur. He resigned from his service and contested in the Manipur Legislative Assembly election but was defeated. The contesting respondent No. 2, Shri Akham Joykumar Singh has also passed M.Sc. in Electronics and is now serving as Lecturer in Electronics under the Department of Higher Education, Govt. of Manipur. His wife is also a Government employee and his earning is about Rs. 30,000 per month in the minimum.

4. The petitioners are now old and infirm and they have no source of income for maintaining themselves. The contesting respondent No. 2 who was examined as DW-2 in the Crl. (M) Case No. 45 of 2002 of the Family Court also admitted that his father has been suffering from physical illness for about 10 years and as such he got paralysed. The petitioners in such circumstances filed the application for maintenance under Section 125 of the Cr.P.C. against the present respondents in the Family Court, Manipur and it had been registered as Crl. (M) Case No. 45 of 2002.

5. Admittedly, both the parties are Hindus and according to the Hindu society, the parents are treated and believed to be the living gods. Every Hindu whether his/her parents are bad or not respected and treated them as a living god. Apart from any law, the Indian society casts duty on the children of a person to maintain their parents if they are not in a position to maintain themselves. It is also their duty to look after their parents when they become old and infirm (Ref.: Dr. (Ms.) VijayaManhor Arbot v. Kashirao Raja Ram Sacvai & Anr., AIR 1987 SC 1100 [LQ/SC/1987/199 ;] ).

6. No doubt, the proceeding under Section 125, Cr.P.C. is a summery proceeding, the object of which is to prevent vagrancy and that object is achieved by directing provision for lodging, fooding and clothing and maintenance to the wife, minor children or the parents, as the case may be. However, there are two conditions: first is that the person who has neglected to look after one of the categories of the persons concerned must have means to do so and, secondly, wife, minor children or the parents must be unable to maintain themselves. Since the proceeding under Section 125 of the Cr.P.C. is for the objects discussed above, standard of proof of marriage or proof of inability to maintain themselves, i.e. the person concerned is not as strict as required in a civil proceeding for declaration of titles or required in a trial of offence under Section 494, IPC. The Apex Court in Dwarika Prasad Satpathy v. Bidyut Prava Dixit & Anr., VIII (1999) SLT 508=IV (1999) CCR 161 (SC)=AIR 1999 SC 3348 [LQ/SC/1999/1015] , held that the provision under Section 125 of the Cr.P.C. is not to be utilized for defeating the rights conferred by the Legislature to the destitute woman, children or parents. Moreover, order passed under Section 125 of the Cr.P.C. does not finally determine the right and liabilities of the parties and the parties can file civil suit to have their status determined. It is now fairly well settled that so far as the applications under Section 125 of the Cr.P.C. is concerned, the parents are at par with the wife and children. It is also equally well settled thatsince the object of Section 125, Cr.P.C. is to prevent vagrancy and destitution, it has a civil purpose to fulfil and in arriving at any finding in relation to an application there under the Courts must look to the substances rather than to the form, must avoid strict technicalities of pleadings and proof and must make a realistic approach to the material available on record to the purpose aforesaid is not frustrated.

7. There is a long drawn legal battle between parents and sons for a matter which is unfortunately a moral obligation between the parents and sons in the present case inasmuch as they have been fighting from the Family Court upto the Supreme Court via this High Court. They must have spent a lot of money for that purpose. The Family Court in the Crl. (M) Case No. 45 of 2002 of the Family Court passed an interim order that:

In the family Court, Manipur at Lamphelpat,

Imphal

Crl. Misc. Case No. 4 of 2003

Ref.: Cril (M) Case No. 45 of 2002

1. Shri Akham Ibobi Singh aged about 71 years, S/o Late A. Ningthou Singh a resident of Achanbigei Village, P.O., Mantripukhuri, P.S. Heingang, District Imphal East, Manipur.

2. Smt. Akham Ongbi Chaobi Devi, aged about 68 years, W/o A. Ibobi Singh, P.O. & P.S. Heingang, District Imphal East, Manipur.

...Petitioners

versus

Shri Akham Biradhaju Singh, aged about 45 years, S/o A. Ibobi Singh, resident of Achanbigei Village, P.O. Mantripukhri, P.S. Heingang, District Imphal East, (State) Manipur and another.

...Respondents.

COPY OF ORDER PASSED ON 19.6.2003

The petitioners are present by Counsel. The respondents are absent. On the prayer of the petitioners I passed an order on previous date directing the respondent No. 1 to pay maintenance allowance to the petitioners at the rate of Rs. 500 per month to each of the petitioners. As for the respondent No. 2, he himself prayed for time and after hearing him and his Counsel, further hearing of case was adjourned and today is fixed for hearing.

From hearing the respondent No. 2 it was ascertained that he is a Lecturer in the D.M. College of Science and admittedly his salary is above Rs. 12,000 per month. As for the petitioners, on my inquiry I find that they do not have substantial regular monthly income. There is no dispute about the facts that the petitioners are the mother and father, who are old and infirm, of the respondents. On previous occasions I have noticed that the petitioner No. 1 was partly paralysed when he appeared before me and without assistance from other persons he could not walk independently. In such circumstance I am of the opinion that the present case is a fit case for granting interim maintenance allowance to the petitioners to be paid by the respondents. Appropriate order was passed in respect of respondent No. 1. As for the respondent No. 2, it is ordered that he shall pay Rs. 1000 per month to each of the petitioners as maintenance allowance w.e.f. Jan., 2003 and till the disposal of the main application for maintenance allowance. The amount of maintenance allowance shall be paid through Court on or before the 15th of every month. Announced.

Sd.

(Th. Sudhir Singh)

JUDGE

Family Court, Manipur.

Against the order of the interim dated 19.6.2003 for ordering the contesting respondent No. 2 to pay Rs. 1,000 per month to each of the present petitioners as maintenance allowance w.e.f. January, 2003 till the disposal of the main application, the contesting respondent No. 2 filed a revision petition being Crl. Revision Case No. 5 of 2003 before this Court. This Court by an order dated 4.7.2003 dismissed the Crl. Revision Case No. 5 of 2003 with the observation and direction that:

Petition stands disposed of and the fact that the petitioner has been directed to pay a sum of Rs. 1,000 per month (Rs. 1,000 each to the father and mother), this fact will be taken into account at the time of adjustment if any, at the time of modification of the earlier order.

The Family Court also rejected the miscellaneous application, i.e. Crl. Misc. Case No. 27 of 2003 passed in the Crl. (M) Case No. 45 of 2002 filed by the contesting respondent No. 2 for impleadment of all the 7 (seven) sons and daughters of the petitioners by passing an order on 22.9.2003. Again, against the order of the learned Family Court dated 22.9.2003, the contesting respondent No. 2 filed a revision petition being Crl. Revision Petition No. 670/03.6.2003 before this Court which was dismissed by this Court by passing a reasoned order dated 6.4.2004 by holding that the contesting respondent No. 2 has failed to refer to any law that all sons and daughters are to be joined in such proceedings and should be treated as having joint liabilities to provide maintenance, but the SLP being Special Leave to Appeal (Crl) No. 3421 of 2004 filed by the contesting respondent No. 2 against the judgment and order of this Court dated 6.4.2004 for rejecting the said Crl. Revision Petition No. 670/03/6/03 had been disposed of as infructuous by the Honble Supreme Court of India vide order dated 24.10.2005. It would be pertinent to mention that the Supreme Court of India in the said SLA (Crl) 3421/04 passed an interim order directing the respondent No. 2 to pay 50% of the arrears of the maintenance due to be paid to the contesting respondent (i.e. the present respondents) within a period of 3 (three) weeks. Subject to this execution proceeding shall stand stayed. After all the revision petitions before this Court and SLP to the Supreme Court filed by the contesting respondent No. 2 challenging the order arising out of the interlocutory orders passed in the Crl (M) Case No. 45 of 2002 had been dismissed, the learned Family Court took up the Crl (M) Case No. 45 of 2002 for final disposal.

8. The petitioner No. 2, Smt. Akham Ongbi Chaobi Devi, in support of their case was examined as PW-1 by the learned Family Court on 7.5.2005 and discharged as the respondents were absent on that day, i.e. on 7.5.2005. The petitioner No. 2 who was examined as PW-1 was not cross-examined. On the application filed by the contesting respondent, PW 1 was called for cross-examination on 30.5.2005. But on the prayer made by the learned Counsel for the contesting respondent No. 2 even if the PW-1 was present before the Court for cross-examination there was no cross-examination of the PW-1. But on the subsequent date, i.e. on 27.6.2005, the learned Family Court passed an order that P W-1 was absent and chance for cross-examination of the PW-1 was not available to the contesting respondent No. 2. On the same date, i.e. on 27.6.2005, the learned Family Court passed an order for closing of the evidence of the petitioners. Thereafter, the learned Family Court examined two witnesses, i.e. DW-1, K. Chaoba Singh, eldest brother of the petitioner No. 1 and contesting respondent No. 2 himself as DW-2 in support of the case of the contesting respondent 2.

9. The case of the contesting respondent No. 2 is that the petitioner No. 1, Akham Ibobi Singh (his father) has got his rice mill entitled M/s. Ibobi Rice Mill and he is earning a sum of Rs. 350 to Rs. 500 daily on running his rice mill and he has also paddy fields measuring about 3 Sangams. The petitioners also filed their rejoinder stating that the petitioner No. 1 had sold out almost all of his paddy lands and spent all the sales proceeds in the course of meeting the expenses of the studies of the respondents as well as employment expenses of the respondents and also the rice mill was not working or running since 12.2.1997 because its machinery and equipments are not functioning. In support of that the petitioners also filed a Memorandum dated 23.5.2003 issued by the concerned Inspector of Factories and Boilers, Manipur that Certificate issued on 2.5.2003 in favour of M/s. Ibobi Rice Mill under the proprietorship of Shri Akham Ibobi Singh (petitioner No. 1) has been cancelled. The learned Family Court passed the impugned order dated 30.7.2005 for rejecting the Crl (M) Case No. 45 of 2002 filed by the petitioners solely on the inter alia grounds, that the statement of PW-1, (i.e. the petitioner No. 2) cannot be taken into consideration only because of that she was not cross-examined by the contesting respondents and also that petitioners had the source of income to maintain themselves inasmuch as petitioner No. 1 is earning from running the said rice mill and he has other landed properties.

10. It is clear from the record of the Crl. (M) Case No. 45 of 2002 that the learned Family Court did not even made an endeavour to discharge his burden/duties under Section 9 of the Family Courts Act, 1984 to persuade the parties in arriving at a settlement in respect of the subject matter of the Crl (M) Case No. 45 of 2002. Only at this score, the Crl (M) Case No. 45 of 2002 would be remitted back to the learned Family Court after setting aside the impugned judgment and order dated 30.7.2005 but it would be a time-consuming process denying the justice to the petitioners who are old and infirm and their days in this world are numbered. The revisional Court may in an appropriate case exercise the powers available to a Court of Appeal in a proceeding under Sections 401 and 397 of the Cr.P.C. but the only limitation is that before exercising such powers it must appear to the Court that there has been a manifest error of law and failure of justice apparent on the face of record. In this regard we may recall the decisions of this Court in Senaram Das & Ors. v. Kashiram Das, II (1995) GLT 423. The Apex Court in the State of Maharashtra v. Jagmohan Singh Kuldip Singh, V (2004) SLT 289=III (2004) CCR 149 (SC)=AIR 2004 SC 4412 [LQ/SC/2004/952] held that revisional Court is empowered to exercise all the powers conferred on the Appellate Court by virtue of the provisions contained in Section 401, Cr.P.C. Section 401 of the Cr.P.C. is a provision enabling the High Court to exercise all the powers of Appellate Court, if necessary, in aid of power of revision conferred on the High Court or the Sessions Court. Para 22 of the judgment in the State of Maharastra (supra) is quoted hereunder:

22. The Revisional Court is empowered to exercise all the powers conferred on the Appellate Court by virtue of the provisions contained in Section 410, Cr.P.C. Section 401, Cr.P.C. is a provision enabling the High Court to exercise all powers of Appellate Court, if necessary, in aid of power of superintendence or supervision as a part of power of revision conferred on the High Court or Sessions Court. Section 397, Cr.P.C. confers power on the High Court or Sessions Court, as the case may be, for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed and as to the regularity of any proceeding of such inferior Court. It is for the above purpose, if necessary, the High Court or Sessions Court can exercise all appellate powers. Section 401, Cr.P.C. conferring powers of Appellate Court on the Revisional Court is with the above limited purpose. The provisions contained in Section 395 to Section 401, Cr.P.C. read together do not indicate that the revisional power of the High Court can be exercised as a second appellate power.

In this regard, the learned Counsel appearing for the petitioner has referred to the decisions of this Court in Rahmat Ali & Anr. v. Naba Singh, (1984) 1 GLR (NOC) 29 and Pabindra Nath Sarma v. Jagdish Seal, (1985) 1 GLR 292.

11. Since the impugned orders dated 30.7.2005 was passed by the learned Family Court in exercise of his powers and jurisdiction under the Family Court Act, 1984, it is required to look into the aims and scopes of Family Court Act, 1984. The Scope for enacting the Family Court was discussed by the Apex Court (3 Judges) in K.A. Abdul Jaleel v. T.A. Shahida, I (2003) DMC 765 (SC)=III (2003) SLT 201=(2003) 4 SCC 166 [LQ/SC/2003/491] and held that the Family Court was enacted to provide for the establishment of the Family Courts with a view to promote conciliation in, and secure speedy settlement of, disputes relating to marriage and family affairs and for matters connected therewith and also held that the Family Court which deals with dispute concerning the family by adopting an approach radically different from that adopted in ordinary civil proceedings. Paras 10 and 13 of the judgment in K.A. Abdul Jaleel (supra) are quoted hereunder:

10. The Family Courts Act was enacted to provide for the establishment of Family Courts with a view to promote conciliation in, and secure speedy settlement of, disputes relating to marriage and family affairs and for matters connected therewith. From a perusal of the Statement of objects and reasons, it appears that the said Act, inter alia, seeks to exclusively provide within the jurisdiction of the Family Courts matters relating to the property of the spouses or either of them. Section 7 of theprovides for the jurisdiction of the Family Court in respect of suits and proceedings as referred to in the explanation appended thereto. Explanation (c) appended to Section 7 refers to a suit or proceeding between the parties to a marriage with respect to the property of the parties or of either of them.

13. The Family Court was set up for settlement of family disputes. The reason for enactment of the said Act was to set up a Court which would deal with disputes concerning the family by adopting an approach radically different from that adopted in ordinary civil proceedings. The said Act was enacted despite the fact that Order 32A of the Code of Civil Procedure was inserted by reason of the Code of Civil Procedure (Amendment) Act, 1976, which could not bring about any desired result.

12.The Code of Civil Procedure had been amended and Order 32A had been inserted for the suits relating to matters concerning the family. In a case, Smt. Lata Pimple v. The Union of India & Ors., AIR 1993 Bom. 255 [LQ/BomHC/1993/12] before the Bombay High Court the procedures prescribed in Sections 10(3), 14, 15 and 16 of the Family Courts Act, 1984 had been challenged on the ground that those are illegal, discriminatory and violative of Article 14. The Division Bench of the Bombay High Court in Smt. Lata Pimple (supra) held that the procedures prescribed in the Sections 10 and 14 of the Family Courts Act, 1984 do not suffer from any vice of either arbitrariness or being fanciful. Para 8 of the judgment reads as follows:

8. These submissions again do not appeal to us. It is relevant to note that Order 32A has been added in the Civil Procedure Code in the year 1976 with a view to simplify the procedure and laying emphasis on conciliation in the matrimonial matters. A bare perusal and comparison of provisions contained in Order 32A of the Civil Procedure Code with procedure prescribed under Sections 10 and 14 and other relevant rules framed by the State of Maharashtra and the High Court, it would clearly demonstrate that most of the provisions contained in Order 32A of the C.P.C. have been incorporated in the procedure prescribed under Sections 10 and 14 of theand the Rules. Some of the provisions are in fact overlapping. It is no more in dispute that provisions of the Civil Procedure Code apply to the proceedings under the. The procedure prescribed under the, in our opinion, does not suffer from vice of either arbitrariness or being fanciful.

13. Section 14 of the Family Courts Act, 1984 reads as follows:

14. Application of Indian Evidence Act, 1872A Family Court may receive as evidence any report, statement, documents, information or matter that may, in its opinion, assist it to deal effectually with a dispute, whether or not the same would be otherwise relevant or admissible under the Indian Evidence Act, 1872.

From the bare perusal of Section 14 it is clear that the provisions contained in the Indian Evidence Act, 1872 regarding the relevancy or admissibility of the evidence in a civil suit is not strictly followed in a proceeding under the Family Court. But learned Family Court while considering the issue as to whether or not the petitioner had the source of income to maintain themselves had completely ignored the said Certificate/Memorandum issued by the concerned Inspectors of Factories and Boilers, Manipur that M/s. Ibobi Rice Mill is not running in passing the impugned judgment and order dated 30.7.2005. Further, while rejecting the statement of the PW-1, i.e. the statement of the petitioner No. 2, only on the ground that she was not subjected to cross-examine by the contesting respondent No. 2, he completely lost sight of the Section 14 of the Family Courts Act, 1984 and Order 17 of the CPC inasmuch as it is clear from the record of the Crl. (M) Case No. 45 of 2002 the PW-1 was not cross-examined even after the P.W. No. 1 appeared before the Family Court for that purpose. Over and above, the Family Court simply allowed the adjournment filed by the contesting respondent No. 2 to adjourn the proceedings of the Crl (M) Case No. 45 of 2002 even after the PW-1 herself appeared before the Court for her cross-examination on 30.5.2005 on the request made by the contesting respondent No. 2 Rule 1(2)(e) of Order 17 of the CPC reads as follows:

(e) Where a witness is present in Court but a party or his pleader is not present or the party or his Pleader, though present in Court, is not ready to examine or cross-examine the witness, the Court may, if it thinks fit, record the statement of the witness and pass such orders as it thinks fit dispensing with the examination-in-chief or cross-examination of the witness, as the case may be, by the party or his Pleader not present or not ready as aforesaid.

14. For the reasons discussed above, this Court is of the considered view that the learned Family Court had passed the impugned order based on non-reading and mis-reading of evidence and also that in the opinion of this Court, the evidence available on record are sufficient to show that firstly, the contesting respondent No. 2 has the means to maintain the petitioners, and secondly, the petitioners are not able to maintain themselves being old and infirm. Regarding the point for claiming maintenance against the respondent No. 2 only by the petitioners it had already been decided by this Court by passing judgment and order dated 6.4.2004, in Crl. Revision Petition No. 670/03/6 2003 filed by the present contesting respondent No. 2 which had been affirmed by the Apex Court in SLP (Crl) No. 3421 of 2004 that no law has been referred to substantiate the contentions of the petitioner/the present respondent No. 2 that all sons and daughters are to be joined in the proceedings for maintenance and should be treated as having joint liability to provide maintenance.

15. Keeping in view the laws laid down by the Apex Court and also for the reasons discussed above, this Court is of the considered view that an interference to the impugned order dated 30.7.2005 is called for, accordingly it is hereby quashed and set aside. In the peculiar facts and circumstances of the present case, it is ordered that the contesting respondent No. 2, Shri Akham Joykumar Singh, shall pay Rs. 800 per month to each of the petitioners as maintenance allowance w.e.f. the date on which the contesting respondent No. 2 did not pay Rs. 1000 per month to each of the petitioners as maintenance allowance under the interim order dated 19.6.2003 passed in Crl (M) Case No. 45 of 2002. The amount of maintenance shall be paid through the Family Court on or before 15th of every month. Revision Petition is allowed. Parties are to bear their own costs.