Abhinav Kumar vs State Of Uttarakhand And Another

Sharad Kumar Sharma, J

By virtue of substitution made by Act No. 50 of 2011, Sub-section (2) of Section 125 of the Cr.P.C. was substituted. By virtue of the substitution made under Sub-section (2) of Section 125 of the Cr.P.C., it granted the powers to the Magistrate concerned dealing with the application under Section 125 of the Cr.P.C. to consider the grant of allowance for "maintenance" or "interim maintenance" and expenses for proceedings, which are payable from the date of the order as passed by the Court or from the date of application. Section 125 (2) of the Cr.P.C. reads as under :-

"(2) Any such allowance for the maintenance or interim maintenance and expenses of proceeding shall be payable from the date of the order, or , if so ordered, from the date of the application for maintenance or interim maintenance and expenses of proceeding, as the case may be."

In order to proceed further on the question, which has been raised by the respondents, pertaining to the maintainability of a Criminal Revision under Section 397 to be read with Section 401 of the Cr.P.C., as against the grant of interim maintenance, under Sub-section (2) of Section 125 of the Cr.P.C., a dichotomy has to be made to Sub-section (2) of Section 125 of the Cr.P.C. first so as to draw its logical inference. The determination as contemplated under Sub-section (2) of Section 125 of the Cr.P.C. has to be splitted its determination into two stages; (1) the maintenance at first stage, with which, we are not concerned at this present moment; (2) the interim maintenance, with which, we are concerned to adjudicate upon in the instant case, in view of the objection raised by respondent No.2, regarding the maintainability of the Criminal Revision against grant of interim maintenance under Sub-section (2) of Section 125 of the Cr.P.C.

If the provisions of Sub-section (2) of Section 125 of the Cr.P.C. is read harmoniously with its intention and purpose, for which, it has been inserted to be achieved the latter on being substituted under Sub-section (2) of Section 125 of the Cr.P.C., in either of the circumstances, either determination of maintenance or either determination of the payment of interim maintenance, it imposes an ultimate liability of payability on the person concerned, against whom the order has been passed or the quantum is determined.

Under Sub-section (2) of Section 125 of the Cr.P.C., it has used the word "payable". Payable, here, would mean in either of the circumstances whether when the determination is made for maintenance or interim maintenance, it is a monetary liability, which is fixed upon the person against whom the order is passed. This Court is of the view that when Section 125 of the Cr.P.C. under either of the situation, itself contemplates the determination of payment of a maintenance at two different stages of maintenance finally or by way of interim maintenance, in either of the circumstances, it entails determination of a right as well as the liability, which was flowing from the implications of Sub-section (2) of Section 125 of the Cr.P.C. of the Act itself, and the term "payability" here would mean, a stage of fixation of liability, which has been once imposed by an order of competent Court, which would be having a civil consequences on the coffers of the person against whom the same has been made.

Thus, this Court is of the view that as soon as the Family Court or the Court ceased with the application under Section 125 of the Cr.P.C. considers an application under Sub-section (2) of Section 125 of the Cr.P.C. for the grant of interim maintenance, there has had to be a determination made depending upon the circumstances and evidence in each case and circumstances prevailing in it, which was available before the Court in order to impose a financial liability to be met with by the person either permanently, if it is either a maintenance or interim maintenance and if it is a determined for the purposes to be continued during the pendency of the final adjudication of the application under Section 125 of the Cr.P.C. In such an eventuality, in either of the circumstances, when the Court determines the final liability or an interim liability to pay the monetary benefits to the opposite side, it amounts an adjudication on consideration of material and evidence on record and once it has an element of adjudication, this Court is of the view that it would be an order, which would be revisable under Section 397 Cr.P.C.

The Counsel for the respondents had made reference to Section 397 of the Cr.P.C. and, in particular, a reference is being made to its sub-section (2). The provisions contained under Sub-section (2) of Section 397 of the Cr.P.C., specifically contains a bar that no Revision would be maintainable against an interlocutory order, in an appeal, inquiry, trial or other proceedings. Sub-section (2) of Section 397 of the Cr.P.C. reads as under :-

"(2) The powers of revision conferred by sub- section (1) shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceeding."

First of all, determination of an application for the grant of interim maintenance under Sub-section (2) of Section 125 of the Cr.P.C., will not fall to be under any of the classification or exemptions given under Sub-section (2) of Section 397 of the Cr.P.C. except, if it all, it is possible, the terms, other proceedings could be attracted, but that will not be attracted for the reasons given above as it would be a determination of liability, which will amount to be a decision.

Now, the second interpretation, for the purposes of arriving at a logical conclusion is as to whether it would be revisable or not has to be made from the view point as to what the term interlocutory order means. The term interlocutory order has got a wider implication and its interpretation will dependent upon the circumstances, under which it is applied for each case and circumstances as it is prevailing at the relevant point of time, when the application itself is being considered. Once the Court considers a respective right and considers the determination of the respective paying capacity of the husband or any of the adversary to the proceedings under Section 125 of the Cr.P.C., it amounts to be a determination of a right and fixation of a liability and once it amounts to be a determination of a liability in monetary term in that eventuality, this Court is of the view that the Court is bound to consider the factual circumstances and evidence, under which, the quantification of interim maintenance is to be made by the Court and, if in these circumstances, if the Court considers the material on record, for the purposes of quantifying an amount of benefit in monetary term, which would amount to imposing liability on other party, it will not amount to be an interlocutory order. Because, it amounts to be a specified monetary liability imposed by the orders of the Court and on determination of the respective cases of the parties to the proceedings. Hence, this Court is of the view that the Revision as against the order passed under Sub-section (2) of Section 125 of the Cr.P.C. would be maintainable.

In response to it, it has been argued by the learned counsel for the respondents that this Court in Misc. Application No.115 of 2018, Smt. Aruna @ Aruna Kesla Vs. State of Uttarakhand and another, which was preferred under Section C-482 Application, has held that an order passed under Sub-section (2) of Section 125 of the Cr.P.C. would not be available to be challenged in a proceeding under Section 482 Cr.P.C. at the most, it could be challenged by way of filing of Writ Petition under Article 227 of the Constitution of India.

This preposition as settled by the aforesaid judgment was not dealing with the circumstances in the light of the implications, which was flowing from Sub-section (2) of Section 125 of the Cr.P.C. as argued now by the counsel for the respondent. Even in this judgment also, the wider ratio, which has been propounded therein is that at least against the grant of interim maintenance, the application under Section C-482 would not be maintainable, either it could be challenged in a Writ Jurisdiction under Article 227 of the Constitution of India, but, qualifying the earlier finding, which has been recorded by this Court in the aforesaid judgment in the prevailing circumstances, this Court in the instant has been called upon for considering the implication of Sub-section (2) of Section 125 of the Cr.P.C. to be read with Sub-section (2) of Section 397 of the Cr.P.C. holds that in view of the above reasons, the Revision would lie as against the passing of an order of interim maintenance under Sub-section (2) of Section 125 of the Cr.P.C. and 482 Application is not maintainable.

In further support of his contention, the counsel for the respondents has placed reliance on a judgment rendered by the Co-ordinate Bench of this Court as reported in [(2019) 1 UJ 454], Ashu Dhiman Vs. Smt. Jyoti Dhiman. The Co-ordinate Bench of this Court while considering the case laws as propounded in (2013) 7 SCC 789, Mohit alias Sonu and another Vs. State of Uttar Pradesh and another and (1977) 4 SCC 551, Madhu Limaye Vs. State of Maharashtra and after considering the Statement of Objects and Reasons as defined under the Family Courts Act has held that an order passed at an interim stage while considering the application under Section 125 of the Cr.P.C., the same would not be a subject matter of challenge in C482 proceedings.

If that be the situation as discussed, the ratio of this judgment about the tenability of the proceedings under Section 482 Cr.P.C. has already been held out by this Court in the judgment rendered on 2nd February, 2018 in C482 Application No. 115 of 2018, Smt. Aruna @ Aruna Kesla Vs. State of Uttarakhand & another. Hence, there is no debate, as such, now left to be argued pertaining to the maintainability of C-482 Application against the grant of Sub-section (2) of Section 125 of the Cr.P.C..

But, in answer to the argument extended by the learned counsel for the respondents that an order under Sub-section (2) of Section 125 of the Cr.P.C. has to be treated as to be interlocutory order is absolutely dehors the purposes and intention, which has been argued by the learned Government Advocate in the light of the provisions contained under Sub-section (2) of Section 125 of the Cr.P.C. and as discussed above. Hence, this Court has got no hesitation to hold that as against passing of the order of grant of interim maintenance, the only remedy, which is available to the affected party is of filing of a Revision under Section 397 of the Cr.P.C. before the superior Court and, more particularly, when it happens to be a Revision before this Court then, while applying the preposition as already discussed above in relation to the Section 397 of the Cr.P.C, the provisions of 401 Cr.P.C. has to be read independently, which grants an exclusive right to the High Court for exercising its revisional power against the order passed by the Subordinate Courts. It does not lay down any such classification as argued by the counsel for the respondents.

Even otherwise also, it is a recognized principle of law that as against any order, which has been passed either at an interlocutory stage or at any stage of the proceedings before the Court, a person aggrieved cannot be left remediless. He is to be provided under law with a remedy permissible under law to redress his grievance against an order passed by the Court concerned. Since the order under Sub-section (2) of Section 125 of the Cr.P.C. does not take the shape of being a final adjudication of a right in itself but having said so that does not mean that the order of interim maintenance will not take the shape of an adjudication, once it imposes a liability in terms of money, it would be a determination, hence, as against the order under Sub-section (2) of Section 125 of the Cr.P.C., the Revision would lie and not the C482 Application, as it has already been held out in the judgments referred above.

Proceeding further on the merits of the matter, and on consideration of the argument, which is made before this Revisional Court is to the order dated 22nd May, 2019, which has been passed by the Additional Judge Family Court, Dehradun in Criminal Case No.417 of 2017, Smt. Kamya Vs. Abhinav Kumar, whereby, the Family Court while exercising its powers under Sub-section (2) of Section 125 of the Cr.P.C., the Family Court while considering the application, being paper No. 14-Ka, had determined the quantum of compensation to be payable to the applicant wife to be @ Rs.7,000/-p.m. The Family Court while fixing the liability of payment of Rs.7,000/- p.m. to the applicant wife has taken into consideration the fact, which was pleaded by the wife to the effect that the respondent/ husband is dealing in the real estate business and is also conducting the business of diary, from which, the income, which is accruing to him per month is shown to be round about Rs.50,000/- per month.

In retaliation to the argument, which has been argued by the respondent husband, that as far as wife is concerned, she is also a qualified lady having done her MBA and she is taking tuition and as a consequence to the aforesaid engagement, she is earning about Rs.20,000/- to 25,000/- p.m. Although, there is no evidence on record produced by the husband to the said effect that the wife is taking tuition and out of it, she is earning Rs. 20,000/- to Rs.25,000/- p.m., then quite obviously, she must be filing her income tax return also. There is nothing on record by way of evidence to show that she is earning and submitting her income tax return based on the earning which is alleged to be accruing to her.

Whereas, on the other hand, even for a moment the argument as extended by the learned counsel for the respondent is accepted that the fact of the pleading pertaining to the husband dealing with the property or running a diary business is concerned, is taken into consideration, it cannot be taken as to be a foundation for determining the liability under Sub-section (2) of Section 125 of the Cr.P.C. in the absence of the said pleadings being substantiated by wife.

Provisions contained under Section 125 Cr.P.C. has got an element of a welfare legislation contained in it, which is socially recognized and in particularly amongst the Indian community, where it is expected that once a male enters into the matrimony with the female, he owes an inherent responsibility to maintain his wife and also owes a sincere responsibility to make efforts to maintain her upto the status to which she is otherwise entitled to enjoy, which she was otherwise used to enjoy at the time when there was no matrimonial discord.

Considering the aforesaid aspects and also considering the reason which has been assigned by the Court below, this Court is of the view that the maintenance of Rs.7,000/-, per month which has been granted by the Court below is simply an arrangement which has been made till the principal application under Section 125 of the Cr.P.C. is decided on its own merit.

Consequently, without disturbing the ratio as laid down above, the impugned order dated 22nd May, 2019 is not being interfered with. Consequently, the Revision is dismissed. However, a request is made to the Additional Judge Family Court, to decide the application under Section 125 Cr.P.C. itself on its own merit within a period of three months from the date of production of certified copy of the order.

However, there would be no order as to costs.