Balbir Kumar vs Soniya W/o Balbir Kumar

Through the instant petition filed under Section 561-A Cr.P.C., petitioner seeks quashment of order dated 21.02.2018 passed by the learned 1st Additional Sessions Judge, Jammu, by virtue of which he has dismissed the revision petition filed by the petitioner against the order dated 20.02.2017 passed by the learned 1st Additional Munsiff (Forest Magistrate), Jammu whereby the petitioner has been directed to pay an interim maintenance to the tune of Rs.3,000/- per month to respondent No.1 and Rs.2,000/- to minor child.

In the petition, it has been stated that trial court without considering any provision of Section 488 Cr.P.C. has passed the impugned order in a routine manner. The Court below has not considered the objections to the interim application as well the main petition in which the petitioner has specifically denied the contents of the main petition and has exercised the jurisdiction on the basis of surmises and conjectures. It is further stated in the petition that the respondent is not wife of the petitioner and she has falsely alleged that she has solemnized marriage with the petitioner. That respondent has hatched a conspiracy with her previous husband, namely, Vicky Sotra and has obtained the interim relief. Before filing the petition under Section 488 Cr.P.C., respondent with ulterior motive just to harass the petitioner, registered an FIR No.159/2013 dated 06.09.2013under Sections 376, 109, 342, 323, 324, 341, 506, 420 and 382 RPC against the petitioner, his mother and father. After the registration of the said FIR, she started pressurizing the petitioner to solemnize marriage and accordingly he performed marriage with her and FIR was withdrawn by the respondent. The marriage between the petitioner and the respondent was never solemnized as per Hindu Marriage Act and they never lived together.

I have considered the submissions of learned counsel for the petitioner and perused the record.

From the perusal of the order of JMIC, (Forest Magistrate), Jammu, it appears that respondent and her minor child filed a petition under Section 488 Cr.P.C. stating therein that her marriage was performed with petitioner herein on 17.09.2013 as per Hindu rites and customs. This was second marriage of her. It has further been stated that the said Balbir Kumar raped her and FIR No.169/2018 was also lodged. Because of this, the first husband divorced her. The said Balbir Kumar thereafter approached her family and offered to take the petitioner after solemnizing marriage in order to escape the social wrath and criminal case. She was having no means to live so marriage was performed. Her husband is earning more than Rs.30,000/- per month in a private company.

The petitioner herein appeared before the trial court and filed objections stating that her wife was married to one Vicky Sotra and his wife hatched a conspiracy along with her previous husband, and involved him in a false and frivolous case of rape under Section 376 RPC. He was forced to solemnize marriage with her and thereafte respondent herein stated that she will give divorce to the petitioner after receiving Rs.50,000/-. The court below after hearing the parties allowed the interim application for grant of interim maintenance and ordered that the petitioner herein shall pay Rs.3000/- and Rs. 2000/-to respondent Nos. 1 and 2 therein respectively.

Petitioner herein challenged the order in a criminal revision before the 1st Additional Sessions Judge, Jammu, who also after hearing the parties dismissed the revision petition by relying upon the judgment passed by the Supreme Court, i.e., AIR 1986 SUPREME COURT 984 in case titled "Smt. Savitri vs. Govind Singh Rawat."

Learned counsel for the petitioner while arguing the matter has relied upon two judgments of Hon'ble Supreme Court of India in cases titled "Yamunabai Anantrao Adhav vs. Anantrao Shivram Adhav & another" reported in 1988 1 Bom CR 541; and "Savitaben Somabhai Bhatiya vs. State of Gujarat and others" reported in (2005) 3 SCC 636.

I have given my thoughtful consideration to whole aspects of the matter.

Section 488 Cr.P.C. reads as under: -

" {Order for maintenance of wives, children and parents.

(1) If any person having sufficient means neglects or refuses to maintain.

(a) his wife , unable to maintain herself, or

(b) his legitimate or illegitimate child, whether married or not, unable to maintain itself, or.

(c) His legitimate or illegitimate child (not being a married daughter) who has attained majority, where such child is by reason of any physical or mental abnormality or injury unable to maintain itself, or.

(d) His father or mother, unable to maintain himself or herself, a magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, father or mother, at such monthly rate not exceeding two thousand rupees in the whole, as such magistrate thinks fit and to pay the same to such person as the magistrate may from time to time direct.

Provided that the magistrate may order the father of a minor female child referred to in clause (b) to make such allowances, until she attains her majority, if the magistrate is satisfied that the husband of such minor female child, if married, is not possessed of sufficient means."

Section 488 Cr. PC is a social legislation, strict law of pleading are not applicable. Procedure is of summary nature; purpose of interim relief is that petitioner may survive up to final adjudication of petition U/s 488 Cr. PC, which takes long time to finalize. Maintenance is right which accrues to a wife against husband the minute's former gets married to latter. It is not only a moral obligation but also a legal duty. The primary object for granting interim maintenance to a deserted and destitute wife is for ensuring that wife should not be left beggared. The remedy provided U/s 488 Cr. PC is a summary remedy for securing reasonable sum by way of interim maintenance. Further purpose of granting interim maintenance is that applicant should be alive till the date of final order.

In the present case, petitioner herein admitted that respondent is his wedded wife, but has taken plea that he was forced to solemnize the marriage, so she is not his legally wedded wife; there is further plea that his marriage with respondent was never solemnized as per Hindu Marriage Act and they never lived together. All these points taken are subject to judicial adjudication, which stage has not yet come because parties are yet to produce their evidence.

In AIR 1986 SUPREME COURT 984 titled Smt. Savitri Vs. Govind Singh Rawat, it is held as under :-

"Criminal P.C. (2 of 1974), S.125 - Proceedings under - Interim maintenance pending final disposal can be granted.

Having regard to the nature of the jurisdiction exercised by a Magistrate under S.125, the said provision should be interpreted as conferring power by necessary implication on the Magistrate to pass an order directing a person against whom an application is made under it to pay a reasonable sum by way of interim maintenance subject to the other conditions referred to pending final disposal of the application. AIR 1975 SC 83, Relied on. (Para 6)

The Magistrate may, however, insist upon an affidavit being filed by or on behalf of the applicant concerned stating the grounds in support of the claim for interim maintenance to satisfy himself that there is a prima facie case for making such an order. Such an order may also be made in an appropriate case ex parte pending service of notice of the application subject to any modification or even an order of cancellation that may be passed after the respondent is heard. If the allegations in the application or the affidavit are not true, it is always open to the person against whom such an order is made to show that the order is unsustainable. (Para 6).

In view of what has been discussed above and law narrated in above citation, I am of the considered view that by passing interim order of maintenance of Rs.3,000/- per month to respondent No.1 and Rs.2,000/- per month to minor child, the trial court has not exceeded his jurisdiction. Similarly order of 1st Additional Sessions Judge dated 21.02.2018 also does not suffer from any infirmity of law. This petition is devoid of any merits. Hence, dismissed.