Will the bar of S. 362 applies upon the order of S. 125

Sanjeev Kapoor vs. Chandana Kapoor and Ors. (19.02.2026 - SC) : MANU/SC/0209/2020

Case Note:
Family - Maintenance - Review of order - Sections 125, 125(1), 125(3), 125(5) and 362 of Code of Criminal Procedure, 1973 - Appellant was married to Respondent and daughter and son was born out of their wedlock - Application under Section 125 of Code was filed by Respondent No. 1 against her husband claiming maintenance - Appellant filed petition for divorce against Respondent No. 1 - On reconciliation efforts made by Family Court parties settled matter amicably on terms and conditions - Maintenance petition was, thus, disposed of by Family Court - Respondent No. 1 filed application under Section 125(3) of Code for enforcement of maintenance order being Execution Petition which stand rejected by Family Court - Thereafter, Respondent No. 1 filed application for recalling of order passed in maintenance petition and for restoring application filed under Section 125(3) of Code - Additional Principal Judge, Family Court set aside order passed in maintenance petition and restoring petition under Section 125 of Code - Appellant filed application in High Court against order passed by Family Court which stand rejected - Hence, present appeal - Whether embargo contained in under Section 362 of Code prohibiting court to alter or review its judgment or final order disposing case applies to order passed under Section 125 of Code.

Facts:

The Appellant was married to Respondent No. 1and a daughter and son was born out of their wedlock. An application under Section 125 Code of Criminal Procedure was filed by Respondent No. 1 against her husband claiming maintenance for Respondent No. 1 as well as Respondent Nos. 2 and 3, minor daughter and son. The Appellant filed a petition for divorce against Respondent No. 1. On the reconciliation efforts made by the Family Court parties settled the matter amicably on the terms and conditions recorded separately in the Court. As per the settlement the Appellant was to pay amount towards the maintenance of the Respondents. The maintenance petition was, thus, disposed of by the Family Court. Respondent No. 1 filed an application under Section 125(3) Code of Criminal Procedure for enforcement of the order being Execution Petition. The Execution Petition filed by Respondent No. 1 was rejected by the Additional Principal Judge, Family Court. The Court held that order being purely conditional and was subject to the fulfilment of the respective obligations by the parties which they have not performed, the application under Section 125(3) Code of Criminal Procedure was not maintainable. After the application filed by Respondent No. 1 for execution of the order was rejected, Respondent No. 1 filed an application for recall the order passed in maintenance petition. Respondent No. 1 prayed that order be recalled and application under Section 125(3) of Code be restored and decided on merits after hearing the parties. The Additional Principal Judge, Family Court set aside the order restoring the petition under Section 125 Code of Criminal Procedure Challenging the order passed by the Family Court, the Appellant had filed application in the High Court which had been rejected by the High Court.

Held, while dismissing the appeal:

(i) The Legislative Scheme indicates that Magistrate did not become functus officio after passing an order under Section 125 Code of Criminal Procedure, as and when occasion arises the Magistrate exercises the jurisdiction from time to time. By Section 125(5) Code of Criminal Procedure, Magistrate is expressly empowered to cancel an order passed under Section 125(1) Code of Criminal Procedure on fulfilment of certain conditions. [25]

(ii) Section 127 Code of Criminal Procedure also discloses the legislative intendment where the Magistrate is empowered to alter an order passed under Section 125 Code of Criminal Procedure Sub-section (2) of Section 127 Code of Criminal Procedure also empower the Magistrate to cancel or vary an order under Section 125. The Legislative Scheme as delineated by Sections 125 and 127 Code of Criminal Procedure clearly enumerated the circumstances and incidents provided in the Code of Criminal Procedure where Court passing a judgment or final order disposing the case can alter or review the same. The embargo as contained in Section 362 was, thus, clearly relaxed in proceeding under Section 125 Code of Criminal Procedure. [26]

(iii) It had come on the record that after passing of the order on settlement, the Appellant according to his own case has paid only an amount of One Lakh Rupees, i.e. maintenance of four months. The arrears had not been paid by the Appellant within six months which was time allowed by the Court. When the Appellant did not honour its commitment under settlement, could the wife be left in lurch by not able to press for grant of maintenance on non-compliance by the Appellant of the terms of settlement. The answer was obviously No. Section 125 Code of Criminal Procedure had to be interpreted in a manner as to advance justice and to protect a woman for whose benefit the provisions had been engrafted. [29]

(iv) The order passed in present case by Family Court reviving the maintenance application of the wife under Section 125 Code of Criminal Procedure by setting aside order passed on settlement was not hit by the embargo contained in Section 362 Code of Criminal Procedure. The submission of the Appellant that Section 362 Code of Criminal Procedure prohibit the Magistrate to pass the impugned order could not be accepted. [31]