Ashrif Ali vs Manjurain and Others

G.S. Chahal, J.—By means of this petition u/s 482 Cr.P.C. Ashrif Ali seeks quashing of the order of the Magistrate 1st Class, Dari vide which his defence was struck-off.

The brief facts necessary for the decision of the present petition are that Manjurain and others who are wife and minor children of Ashrif Ali, petitioner, brought an application u/s 125 Cr. P.C. for the grant of maintenance to them. Interim maintenance was allowed by the Magistrate and the petitioner did not comply with that order; he claimed his inability to pay the interim maintenance. The Magistrate vide order dated October 10, 1990 struck-off the defence of the petitioner. The petitioner has challenged this order and the arguments put forth by the learned Counsel are that the order for interim maintenance could only be enforced under the provisions of Section 125(3) of the Code of Criminal Procedure but no other order could be passed to enforce the same. I am, however, unable to endorse this argument of the learned Counsel. The powers of the Magistrate to award the interim maintenance during the pendency of this petition were recognised in 1986 (I) RCR 83 (SC): 561, Savitri v. Govind Singh Rawat. There lordships help as under:-

"In the absence of any express prohibition, it is appropriate to construe the provisions in Chapter IX as conferring an implied power on the Magistrate to direct the person against whom an application is made u/s 125 of the Code to pay some reasonable sum by way of maintenance to the applicant pending final disposal of the application. It is quite common that applications made u/s 125 of the Code also take several months for being disposed of finally. In order to enjoy the fruits of the proceeding u/s 125, the applicant should be alive till the date of the final order and that the applicant can do in a large number of cases only if an order for payment of interim maintenance is passed by the Court. Every Court must be deemed to possess by necessary intendment all such powers as are necessary to make its orders effective."

I thus do not accept the proposition that the only remedy availalble to the party who has been granted interim maintenance is to seek execution of the order u/s 125(3) of the Code. The Magistrate has all the powers to make his orders effective and this power includes the power to strike off the defence. If this power is not recognised, this will frustrate the very purpose of grant of interim maintenance. A husband/father can always delay the proceedings by playing delaying tactics and keep his wife and children on the road. Obviously the very purpose of introducing Section 125 was to save the wife and the children from vagrancy.

The petitioner is thus not entitled to any relif in these proceedings but as a matter of concession a direction is issued that if he pays the entire amount due under the order of interim maintenance within one month from today the order of striking off the defence shall stand revoked and he will be allowed to contest the petition. With this direction, the petition stands disposed of.