Binod Kumar Pandey vs The State of Bihar and Smt. Shakuntala Devi

Indu Prabha Singh, J.—This application under Sections 397 and 401 of the Code of Criminal Procedure, 1973 (in short ''the Code'') by the husband is directed against the order dated 21.1.1998 passed by the Sub Divisional Judicial Magistrate, Aurangabad in Misc. Case No. 13/96 Tr. No. 263/98 a proceeding u/s 125 of the Code; by which the learned Magistrate awarded interim maintenance to the wife (O.P. No. 2) at the rate of Rs. 300/- per month during the pendency of the case with effect from the date of the order.

It appears that opposite party No. 2, Smt. Shakuntala Devi, filed this case u/s 125 of the Code against her husband, the present Petitioner. In this proceeding on 24.2.1997 opposite party No. 2 had filed a petition for interim maintenance during the pendency of her application. Both parties were heard and by the impugned order the learned court below directed the present Petitioner to pay interim maintenance to the wife (opposite party No. 2) at the rate of Rs. 300/- per month pending final disposal of this application. It is against this order that the present revision application has been filed.

In this application the Petitioner has contended that opposite party No. 2 was never married to him and as such she had never lived with him. Therefore, the question of birth of a child to them never arose. It has also been contended that the story of assault as also story of snatching away the ornaments from opposite party No. 2 are entirely false. As a matter of fact the Petitioner was married to one Sangita Devi on 25.2.1979 and since then they are living as husband and wife. They have been recorded as such in the voters list and necessary identity card by the Election Commission was issued to Smt. Sangita Devi. This Petitioner was never married to opposite party No. 2 Smt. Shakuntala Devi. Opposite party No. 2 has failed to establish the factum of marriage between her and the Petitioner. The learned court below has failed to appreciate that no maintenance to anybody else can be allowed when the first marriage still subsists. The learned court below has passed the impugned order without any evidence and materials on record and against the provisions of law. On these grounds it was contended that this application be allowed and the impugned order be set aside.

The only point for decision before me whether this application is fit to be allowed or not.

At the time of hearing the learned Counsel for opposite party No. 2 has seriously contended before me that no revision application against the impugned order would lie inasmuch as the impugned order is interlocutory in nature. In this connection he has drawn my attention to Section 397(2) of the Code which runs as follows:

397(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.

Relying on this provision of law it has been contended before me on behalf of opposite party No. 2 that this revision application is not maintainable, since this application has been filed against an interlocutory order dated 21.1.1998. Since this contention raised on behalf of opposite party No. 2 goes to the very root of this case it has become necessary for me to examine it in detail. It is obvious that if the impugned order is an interlocutory order no revision application will lie against it. If, however, it is not an interlocutory order this revision application filed on bealf of the Petitioner will be maintainable.

Before proceeding to discuss this point I would like to briefly refer to the provisions as contained in Chapter IX of the Code consisting of sections 125 to 128. Section 125 of the Code deals with the order of maintenance of wives, children and parents. Section 127 relates to alteration in allowance. u/s 127(1) the Magistrate himself can alter the same on proof of the charge in the circumstances of the person receiving maintenance. Section 127(2) runs as follows:

127(2)-Where it appears to the Magistrate that, in consequence of any decision of a competent Civil Court, any order made u/s 125 should be cancelled or varied, he shall cancel the order or, as the case may be, vary the same accordingly.

Further Sub-section (4) of Section 127 of the Code runs as follows:

(4) At the time of making any decree for the recovery of any maintenance or dowry by any person to whom a monthly allowance has been ordered to be paid u/s 125, the Civil Court shall take into account the sum which has been paid to or recovered by, such person as monthly allowance in pursuance of the said order.

Learned Counsel appearing on behalf of the opposite party No. 2 has contended that the provisions of Chapter IX of the Code are of summary nature and a perusal of above three Sub-sections of Section 127 will show that by any order passed u/s 125, final rights and liabilities of the parties are not decided inasmuch as any order made u/s 125 can be cancelled or varied and will also be subject to an order passed by a Civil Court. A perusal of the provisions of these three Sub-sections of Section 127 will show that there is great force in this submission of the learned Counsel for the opposite party No. 2.

In this connection it may be mentioned that under Chapter IX of the Code neither in Section 125 nor in other Sections of this Chapter there is no provision for any interim maintenance to be paid to the Petitioner. In Section 125 of the Code the Magistrate can order to pay monthly allowance for the maintenance of wife, child, father or mother. It does not speak of any interim maintenance. On this ground it has been contended on behalf of the opposite party No. 2 that since there is no provision for granting interim maintenance to the Petitioner under a case u/s 125 of the Code, any such order passed for interim maintenance can at best be an interlocutory order, against which no revision application can be filed.

So far the absence of any such provision in law is concerned, this question has been set at rest by the Hon''ble Supreme Court in the case of Savitri Rawat Vs. Govind Singh Rawat, . In this decision the Hon''ble Supreme Court has clearly held that u/s 125 of the Code the Magistrate has got power to pass order for the payment of interim maintenance. In this connection a reference may also be made to the case of Kunjilal Vs. Smt. Sushila and another, in which Bombay High Court has held that under the provision of Section 125 of the Code the court has got power to grant interim maintenance pending final disposal of the proceeding u/s 125 of the Code. Both these decisions have been referred to in the impugned order. Hence this point that an order for interim maintenance can be passed under the provisions of Chapter IX of the Code can be said to be settled.

The next question that will arise in this connection would be whether this order for interim maintenance will be an interlocutory order or not.

In this connection the learned Counsel for the Petitioner has placed reliance on a Bench decision of Punjab and Haryana High Court in the case of Sunil Kumar Sabharwal Vs. Neelam Sabharwal and Another, . In this decision it has been held that the order of granting interim maintenance is not an interlocutory order and revision against it not barred u/s 397(2) of the Code. This decision was, however, based on the decision of the Hon''ble Supreme Court in the case of Amar Nath and Others Vs. State of Haryana and Another, . In particular, reference has been made to the following observation of the Hon''ble Supreme Court in this case which runs as follows:

Decided cases have laid down that interlocutory orders to be applicable must be those which decide the rights and liabilities of the parties concerning a particular aspect. It seems to us that the term "interlocutory order" in Section 397(2) of 1973 Code has been used in a restricted sence and not in any broad or artistic sence. It merely denotes orders of a purely interim or temporary nature which do not decide or touch the important rights or the liabilities of the parties. Any order which substantially affects the rights of the accused or decide certain rights of the parties can not be said to be an interlocutory order so as to bar a revision to the High Court against that order, because that would be against the very object which formed the basis for insertion of this particular provision in Section 397 of the 1973 Code... But orders which are matters of moment and which affect or adjudicate the rights of the accused or a particular aspect of the trial cannot be said to be interlocutory order so as to be outside the purview of the revisional jurisdiction of the High Court.

(emphasis supplied)

From the aforesaid observation of the Hon''ble Supreme Court it appears that by passing the impugned order fixing interim maintenance to the opposite party the right and liabilities of the parties have not been finally decided. At best this order for the maintenance till disposal of the application can be said to be purely interim or temporary in nature which does not decide the important rights and liabilities of the parties. By any such order the rights of the parties have been finally adjudicated. In this connection it may be mentioned that the impugned order granting interim maintenance to opposite party No. 2 was only till the disposal of the application filed u/s 125 of the Code. The payments of interim compensation will be subject to the final order to be passed by the Magistrate with respect to the maintenance to be paid to opposite party No. 2. From this also it would appear that the order to pay interim maintenance can at best be called interlocutory order since it does not finally determine the rights or liabilities of the parties. It has already been noted above that from Section 127(1), 127(2) and 127(4) also it would appear that this order is subject to the limitations placed on it by the aforesaid provisions of law. Even on that ground, at best, the order of interim maintenance can be said to be an interlocutory order against which revision application is barred u/s 397(2) of the Code. In the decision in the case of Sunil Kumar (supra) a reference has also been made to the case of Sumer Chand alias Sumer Nath Vs. Sandhuran Rani and Another, . the learned Single Judge who decided this case was also of the view that an order granting interim maintenance u/s 125 of the Code was not an interlocutory order. However, I do not propose to discuss the case of Sumer Chand (supra) in detail inasmuch as the Division Bench in the case of Sunil Kumar Sabrawal (supra) appears to have come to a wrong decision on account of not properly appreciating the ratio of the decision in the case of Amar Nath (supra). In this connection a reference may also be made to the case of Smt. Parmeshwari Devi Vs. The State and Another, . In this case the scope of Section 397(2) of the Code was discussed and the following observation was made:

The purpose of Section 397 of the New Code is to keep such an order outside the purview of the power of revision so that the inquiry or trial may proceed without delay. This is not likely to prejudice the aggrieved party for it can always challenge it in due course, if the final order goes against it....An interlocutory order, though not conclusive of the main dispute, may be conclusive of the subordinate matter with which it deals.

The Hon''ble Supreme Court had occasion to examine the true import of the expression "interlocutory order" in the case of V.C. Shukla Vs. State through C.B.I., in which a reference to the following observation can be usefully made:

The word ''interlocutory order'' used in Section 397(2) of the Code relates to various stages of the trial namely, appeal, inquiry, trial or any other proceeding. The object seems to be to cut down the delays in stages through which a criminal case passes before it culminates in an acquittal, discharge or conviction... In order to construe the term ''interlocutory'' it has to be construed in contradistinction to or in contrast with a final order. In other words, the words ''not a final order'' must necessarily mean an interlocutory order or an intermediate order. Thus, the expression interlocutory order" is to be understood and taken to mean converse of the term ''final order''.

An interlocutory order merely decides some point or matter essential to the progress of the suit or collateral to the issue sought but not a final decision or judgment on the matter in issue. An intermediate order is one which is made between the commencement of an action and the entry of the judgment. An order framing of the charge being an intermediate order falls squarely within the ordinary and natural meaning of the term ''interlocutory order''.

In view of the aforesaid observations of the Hon''ble Supreme Court as mentioned above it becomes clear that the order granting interim maintenance has to be closed as an interlocutory order against which a revision application is barred u/s 397(2) of the Code.

In this connection a reference may also be made to the case of Hasmukh J. Jhaveri Vs. Shella Dadlani and another, in which also the various decisions of the Hon''ble Supreme Court including the decisions in the the cases of Amar Nath (supra); V.C. Shukla (supra); Madhu Limaye v. Ved Murtj and Ors. AIR 1973 S.C. 47; and also the scheme of the Code were taken into consideration and 12 propositions of law were laid down in this decision. In the case of Sunil Kumar Sabrawal (supra) only a passing reference has been given to the decision in the case of Hasmukh J. Jhaveri (supra), but no discussion on the points decided in this decision has been made. In paragraph 7 of the judgment in the case of Sunil Kumar Sabrawal (supra) it has been observed that ft is settled law that the expression "interlocutory order" u/s 397(2) of the Code is to be given a restricted meaning. It has further been observed that finality of the case is not sine-quo-non of an order for being taken out of the category of interlocutory order. The crucial test is whether the order substantially affects the rights and liabilities of the parties either with regard to the case as a whole or any aspect thereof. In this very paragraph the learned Judges further observed that under the impugned order the Petitioner was saddled with liabilities to pay maintenance till it was finally decided or till it was varied. For default in payment of the amount coercive method could be used against the Petitioner. It is plain that the rights and liabilities of the parties was determined until final decision of the case by the impugned order and any such order could not be considered to be interlocutory. With utmost respect to the Hon''ble Judge constituting the Division Bench, I may say that there is no provision in law for taking coercive steps for failure to pay interim maintenance. As such the observation of the Hon''ble Judges that coercive process could he used for realisation of interim maintenance has got no foundation in law. It is clear that there is no provision in the Code for paying interim maintenance, there is also no provision for any coercive process in case of default in payment of any such amount. The coercive process it may be pointed out here can be used for the realisation of the final order of granting maintenance and not for the realisation of the any order granting interim maintenance. In the same way a perusal of Section 128 shows that it is the order of the maintenance passed finally by the Magistrate that can be enforced. As such it is not clear how it has been observed in the case of Sunil Kumar Sabrawal (supra) that for default in payment of interim maintenance coercive process could be used against the Petitioner.

In this connection a reference can also be made to the case of Smt. Mamta Vs. Ashok M. Vaidya, in which it has been held that granting of interim maintenance pending proceedings u/s 125 of the Code is an "interlocutory order" and against it no revision is maintainable as barred by Section 397(2).

Before concluding, I would like to mention that Chapter IX of the Code of Criminal Procedure contains summary and quick remedy for securing some reasonable sum by way of maintenance, thereby to protect the destitute wife against starvation. Chapter IX of the Code, does not in reality create any serious new obligation unknown to Indian Social Life. This chapter provides "a mode of preventing vagrancy, or at least of preventing its consequences". These provisions are included to fulfill a social purpose. Their object is to compel a man to perform the moral obligation which he owes to society in respect of his wife, children and parents unable to maintain themselves. By providing a simple, speedy but limited relief, they seek to ensure that the neglected wife, children or parents are not left beggared and destituted on the scrap head of society and thereby driven to a life of vagrancy, immorality or crime for their subsistence.

Thus Section 125 is not intended to provide for a full and final determination of status and personal rights of the parties. The jurisdiction conferred by section on the Magistrate is more in nature of preventive, rather than a remedial jurisdiction; it is certainly not punitive. In view of scope of the provision, the Magistrate is empowered either to modify or even cancel the order passed by him earlier. Considering this fact, granting interim maintenance pending u/s 125 of the Code is an interlocutory order and thereby no revision is maintainable u/s 397(2) of the Code.

In view of the detailed discussions made above it becomes clear to me that the impugned order is interlocutory in nature and, therefore, no revision application against the same is maintainable. It is hit u/s 397(2) of the Code. This revision application is accordingly dismissed as not maintainable. The Magistrate is directed to proceed with the disposal of the Misc. Case No. 13/96/Tr. No. 263/98 and stay order, if any granted by this Court stands vacated.