Kunjilal vs Smt. Sushila and another

This petition has been filed Kunjilal Hanumanlal Jaiswal challenging the order dated 16-10-1993 passed by the Joint District Judge and Additional Sessions Judge, Nagpur in Criminal Revision No. 352 of 90 and the order dated 2-7-1990 passed by the Judicial Magistrate, First Class, 3rd Court, Nagpur in Misc. Criminal Case No. 41 of 1989 awarding maintenance '' Rs. 250/- to each of the respondents viz. Smt. Sushila alias Iqbal Banoo and Kundanlal Jaiswal, from the date of application.

The facts leading to the filing of present writ petition are that, the non-applicants 1 and 2 viz. Sushila alias Iqbal Banoo and Kundanlal Jaiswal (hereinafter referred to as the ''wife'' and ''sons'' respectively) filed an application under S. 125 of the Criminal Procedure Code (for short. ''Cr.P.C.'') against the petitioner Kunjilal Hanumanlal Jaiswal (hereinafter referred to as the ''husband'') for grant of maintenance '' Rs. 500/- per month to each of them from the date of application i.e. 31-3-1989 before the Judicial Magistrate, First Class, 3rd Court, Nagpur. It was inter-alia alleged by the wife and the son in the application under S. 125. Cr.P.C. that Sushila is legally wedded wife of petitioner Kunjilal and out of the wed-lock of parties, a son Kundanlal was born. The wife has alleged in the application that she was Muslim by birth, but due to her marriage with the husband Kunjilal she converted herself to Hinduism. The wife further alleged that she has no means to sustain her and her son, and the husband without any reasonable cause has refused to maintain them. According to the wife and the son, the husband is a transporter and runs luxury buses business in the name and Style of ''Jaiswal Brothers Bus Service''. According to wife and son, the financial condition of husband is very sound and he is also an Income Tax payer. Along with the application under S. 125. Cr.P.C. the wife and the son also moved an application for grant of interim maintenance '' Rs. 500/- to each of them since they were not in a position to sustain themselves because of their precarious financial condition.

The husband contested the application for grant of maintenance as well as for grant of interim maintenance. The defence set up by the husband was that Sushila alias Iqbal Banoo was not his legally wedded wife and he has not married to the said lady. He further set up the defence that when his marriage did not take place with Sushila, the question of Kundanlal being born out of the said wed-lock did not arise. In this view of the matter, the husband submitted before the Judicial Magistrate, F.C. that no interim maintenance could be awarded to the wife.

Both the parties produced documentary evidence in support of their respective prima facie case on the question as to whether the wife and the son are entitled to grant of interim maintenance pending main proceedings under S. 125, Cr.P.C. or not. The Judicial Magistrate, First Class relied on various documents viz. the sale deed in favour of son Kundan, voters'' list, photographs and the birth certificate of son Kundanlal to reach the conclusion that Sushila was married with husband Kunjilal and the son Kundanlal was born out of the said wed-lock. On prima facie finding that Sushila is shown to be wife of husband Kunjilal and Kundanlal was born out of the said wedlock, the Judicial Magistrate awarded interim maintenance at the rate of Rs. 250/- per month to each of them during the pendency of application under S. 125, Cr.P.C. This order was challenged by the husband in revision application before the Additional Sessions Judge, Nagpur. The Additional Sessions Judge framed two points for determination, viz. (1) Whether the revision is tenable against the order of the Magistrate for interim maintenance ? and (2) whether the order under revision is correct, legal and proper ?

After hearing the parties, the learned revisional court found that no revision lay against the order of the Judicial Magistrate, First Class since it was in the nature of interlocutory order. He held that the revision application was not competent. On merits of the case, the learned Additional Sessions Judge also found that the order passed by the Judicial Magistrate, First Class did not suffer from any infirmity warranting interference by that court. Consequently, the revision application filed by the husband was dismissed by the Extra Joint District Judge and Additional Sessions Judge, Nagpur.

The learned counsel for the petitioner husband has raised two-fold submissions viz., (i) that, in the proceedings under S. 125, Cr.P.C. the court had no jurisdiction to award interim maintenance, and (ii) that, the wife did not disclose the facts which may lead to a conclusion that she was married to Kunjilal. She, therefore, submitted that no interim maintenance could have been granted by the courts below.

I find no force in the submissions made by the learned counsel for husband. It is not that the court has no power or jurisdiction to grant interim maintenance during the pendency of the proceedings under S. 125, Cr.P.C. If the person who seeks maintenance under S. 125, Cr.P.C. is unable to maintain her or him during the pendency of the proceedings under S. 125. Cr.P.C. and due to neglect of the defaulting party the very survival of that person has become difficult, it is not only that the concerned court has power or jurisdiction to award interim maintenance, but also it is the duty of the court to ensure that during the pendency of the main proceedings, the applicant gets sufficient interim maintenance from the defaulting party so that she or he could survive and sustain herself or himself during the pendency of the said proceedings. It is always open to the court to pass the interim orders to facilitate the find disposal of the main proceedings. The court deciding proceedings under S. 125, Cr.P.C. is competent to pass an interim order for the maintenance during its pendency. It is settled proposition of law that every procedure is permitted unless it is forbidden by law and the procedure is always designed to subserve the ends of justice and it always aims at rendering the substantial justice. It may be observed that the litigants look at the court for getting justice and not for perpetuating injustice. Grant of maintenance allowance is always aimed at preserving the existence of an individual who is not in a position to support himself or herself. Even if there is no express provision of law under S. 125, Cr.P.C. for grant of interim maintenance allowance during the pendency of proceedings under S. 125, Cr.P.C., yet there is no prohibition for such interim relief being granted. It is well-settled and it is not required to be elaborated that the powers to make interim orders are implicit, ancillary and necessary corollary of power to pass the final orders.

The learned counsel for the applicant has cited In Re: Ram Pratap Sharma and Others, in support of her submission that since the status of wife is challenged by te husband, no interim maintenance under S. 125. Cr.P.C. could be granted. In the present case, perusal of contents of application under S. 125, Cr.P.C. filed by the wife and the son, prima facie would show the facts constituting valid marriage between Smt. Sushila and Kunjilal, (the petitioner and respondent No. 1 respectively herein) are disclosed and it cannot be said that it the application is read as it is, it does not make out the case of the wife that she was wife of husband Kunjilal. In view of these facts, the judgment of the Madhya Pradesh High Court cited by the learned counsel for the husband has no application. As observed by me above, the courts have power to grant interim maintenance allowance in the proceedings under S. 125, Cr.P.C. if the court is satisfied that such an order needs to be passed during the pendency of the main proceedings under S. 125, Cr.P.C. The Judicial Magistrate, First Class has recorded findings of facts in his order dated 2-7-1990 that the documents produced by the wife prima facie show that the relation between the applicant No. 1 (wife) and the non-applicant (husband) are that of a husband and wife and in this view of the prima facie finding of fact, the wife was entitled to grant of interim maintenance for her survival and sustenance, and the two courts below have committed to error of jurisdiction in passing the order of interim maintenance.

Consequently, this criminal writ petition has no force and is dismissed accordingly.

Order accordingly.