Kanshi Ram vs Banso Devi

Arun Kumar Goel, Judge.

This is a reference made by learned Sessions Judge, Rajouri, whereby recommendation has been made for quashing the order passed by trial

Magistrate on 981997. Facts which resulted in passing of the impugned order are as under:

Banso Devi, respondent No. 1, for self and as guardian of minor sons Roshan Lal and Rajiv Kumar preferred a petition under Section 488 J

and K Criminal Procedure Code, 1989 (1933 A.D.) (hereinafter refereed to as the Code). In this petition maintenance was claimed since all three

of them had been neglected and Kanshi Rani petitioner having refused to maintain them. During the pendency of these proceedings interim

maintenance was granted at the rate of Rs. 300/ per month to each one of the three respondents w.e.f 981997, i.e. the date on which the order

impugned was passed.

Against the aforesaid order petitioner Kanshi Ram filed revision before the court below on the grounds that neither Banso Devi is his legally

wedded wife nor the minothers namely Roshan Lal and Rajiv Kumar were his sons. His further case was that he is married to the elder sister of

Banso Devi namely Ritu Devi, which marriage is subsisting and unless avalid marriage was established between him and Banso Devi, no

maintenance could have been allowed by the court below. Claim of three respondents before the Magistrate below regarding beatings being

administered by Kanshi Ram to Banso Devi under the influence of liquor were also denied. Similarly they having been turned out of the house by

the petitioner was also denied. In support of their claim reliance was placed by respondent on an agreement dated 27121991 between petitioner

and respondent No. 1, affidavit of the same date executed by the petitioner.

On the other hand reliance is placed on affidavit of Banso Devi, respondent No. 1, her previous husband Krishan Lai, her father Sain Dass, her

mother Premi Devi and sister Raj Kumari, for defeating the chain both on merits in the main case as well as application for grant of interim relief.

Trial Court on examination of the whole matter by means of order dated 981997 granted the maintenance as aforesaid to each one of the three

respondents.

Petitioner feeling aggrieved by an dissatisfied with the aforesaid order of the grant of interim maintenance passed by the trial Magistrate

preferred a revision petition before the Revisional court below, who had recommended for quashing of the said order by making reference to this

court.

Learned counsel appearing for petitioner and in support of this reference adopted the reasoning given by the court below and urged that the

reference needs to be accepted and the interim order quashed and set aside.

On the other hand learned counsel appearing for the respondents urged that the referetice made by learned Sessions Judge, Rajouri, needs 10

be rejected. While advancing this line of argument it was pointed out that for the purpose of determining the controversy relating to grant of interim

maintenance merits of the case as has been dealt by the revisional court below need not be gone into. Only prima facie case is to be made out and

once the court came to the conclusion, such findings did not call for any interference in the revision petition.

Learned Sessions Judge below after placing reliance on AIR 1988 Supreme Court 644 came to the conclusion that before invoking the

provisions of Section 125 of Central Criminal Procedure Code 1974 (which is analogous to Section 488 of the J and K Criminal Procedure Code,

1989 (1993 A.D) expression 'wife' has to be construed to mean the legally wedded wife and marriage of a wife with a man already having living

spouse as per Hindu rites being a nullity, she is not entitled to maintenance. It maybe noticed that while examining the case after its final conclusion

under Section 125 Criminal Procedure Code as well as by referring to Section 5(1), 11, 12, 14 and 16 of the Hindu Marriage Act, 1955 Apex

Court negatived the claim of the wife.

So far the Provisions of Section 125 Criminal Procedure Code are concerned they are primararily aimed at providing maintenance in a summary

manner with a view to avoid vagrancy in the woman as well as to ensure that the wife and children are not left high and dry on account of refusal or

neglect on the part of husband /father as the case may be. It may further be noticed that the purpose of Section 125 Criminal Procedure Code is

only intended for the enforcement of a duty, a default in which may lead the vagrancy and this Section does not determine legal rights of the parties.

This liability of the husband under the Code of Criminal Procedure is not coextensive with liability. At the same time the approach of the court has

to be pragmatic keeping in view the status of the parties, the social environment in which they live, illiteracy and backwardness. In these

circumstances, the approach of the court does not have to be too rigid, dogmatic and technical in evaluating the overall case of the parties as may

be set up.

As already observed, proceedings under Criminal Procedure Code being summary in nature and scope of enquiry also being limited, as such

all orders passed are subject to final adjudication that may be made by a competent court of jurisdiction between the parties so far their status and

civil rights are concerned. In fact orders passed under Section 125 are tentative in nature and if a party is aggrieved by such an order he can

always have recourse to get it adjudicated upon from a civil court.

Learned Sessions Judge, below while making recommendation for quashing the order of interim maintenance appears to have fallen into error

by placing reliance on AIR 1988 Supreme Court 644 (supra) as well as by ignoring the fact that he was deciding a case/question in relation to

grant of interim maintenance. When a reference is made to order passed by court below while making reference, it is manifestly clear that he was

dealt with the present case threadbare by going into the merits thereof as also by discussing the respective evidence placed on record by the

parties.

With a view to decide a matter relating to grant/refusal of interim maintenance during the pendency of the main case revisional court should

have not lost sight of the fact that the ground in support of grant of such interim claim were to be examined by the Magistrate below and on its

bases he was to satisfy himself that there is a prima facie case made out for such an order. In an appropriate case magistrate has the jurisdiction to

even pass exparte order putting service of notice of such an application of course subject to modification or even cancellation after the opposite

side is heard.

So far present case is concerned there are two sets of documents, one filed by the petitioner and the other by the respondents. Between

petitioner and respondent No. 1 there is an agreement dated 27121991 as well as an affidavit sworn by the petitioner. It is not the case of

petitioner that these have not been executed by him and he is not a signatory to both.

Petitioner relied on the affidavit of respondent No. 1, her parents, sister and Krishan Lal her previous husband. Firstly, these are photostat

copies. Secondly, these are of subsequent date to the .agreement between petitioner and respondent no. 1. Except the affidavit of Raj Kumari it is

not known as to in what context and in what proceedings such affidavits were filed. Tenor of all these affidavits indicates that those related to some

agricultural land as well as receipt of levy etc. Raj Kumari's affidavit indicates that it purports to be in relation to the matter relating to Section 4 and

8 of the J and K Agrarian Reforms Act, 1976. No doubt in the affidavits relied upon on behalf of the petitioner there is a mention of his having

married to Preetu Devi and respondent no. 1 herself admitting to be the wife of Krishan Lal, whereas in the agreement and affidavit which have

been placed on record by respondent No. 1 and are duly executed by Kanshi Ram, the position is totally contrary. That being so, trial Magistrate

was justified while allowing interim maintenance. Reference in this behalf can usefully be made to AIR 1986 Supreme Court 986, Savitri Devi Vs.

Gobind Singh.

It may be noted here that the ratio of judgment relief upon by the court below of AIR 1988 Supreme Court 644 (supra) is wholly inapplicable

to the facts of the present case. As already noted by dealing with the matter in detail the learned Sessions Judge below had fallen into error and as

such committed illegality as well as impropriety. That being so his approach was also incorrect.

Another reason not to accept the reference made by the Revisional court below is that the words in a provision must be explicated to enable

the provision to fulfill its social function which is a generating force in its enactment. In addition to this the consequential compassion for weaker

section calls for interpretation having social relevance. When alternative meanings for interpreting a word is there and both are reasonable, the

meaning which promotes or proffers the cause of derelicts should be accepted. A woman like respondent No.1, who comes in the life of a man

and after having given herself to him when the latter uses her as such. Not only this, but he recognizes her as his wife, therefore, she must come

within the terms of a wife prima facie for the purpose of determining the question relating to grant of interim maintenance, absence of rituals

notwithstanding. In this background agreement between the petitioner and respondent no. 1, dated: 27121991 and affidavit of the same date

executed by the husband wherein petitioner admits respondent No. 1, to be his wife and respondents 2 and 3 to be his sons directly not only

declares but also accepts the status of the respondents are enough to bring the present case within the meaning of Section 488 J and K Criminal

Procedure Code so far it concerns the controversy involved in the present petition.

Further reason not to accept the recommendations made in the reference is that unlike matrimonial proceedings where strict proof of marriage

is essential, but in a proceedings under Section 125 Criminal Procedure Code such standard of proof is not necessary as it is summary in nature

aimed at providing immediate relief.

For the aforesaid reasons the reference made by the Sessions Judge, Rajouri, is rejected and the order passed by the trial Magistrate dated

981997 granting interim maintenance in favour of respondents is hereby upheld. Parties through counsel are directed to appear in trial court on

2711999.

Registry is directed to send back the record of the court below so as to reach there on 2711991. Trial Magistrate is directed to proceed for

expeditious disposal of the case without being in any manner influenced by any observation made here in this judgment which is only meant for

deciding this criminal reference.