Rajinder Nargotra vs Anita Nargotra

S.K. Gupta, J.—Through the currency of this Revision, petitioner, Rajinder Nargotra, seeks reversal of order dated 16-10-2001 drawn by

Sub-Registrar Judicial Magistrate, Jammu. By the aforesaid order, Sub Registrar Judicial Magistrate, 1st Class, has declined the prayer of the

petitioner for restitution of interim maintenance against the final order of the maintenance on the conclusion of the proceedings u/s 488 Code of

Criminal Procedure.

A short controversy raised in this petition is as to whether interim maintenance during the pendency of the proceedings u/s 488 Cr.P.C. is not an

addition to final order of maintenance, but is in aid of and ancillary to final maintenance order passed in the pendency of proceedings and,

therefore, to be adjusted against the final order of maintenance. Anita Nargotra herself and the guardian of two minor daughters preferred a

petition u/s 488, Code of Criminal Procedure, 1989 (1933 A.D.) (herein after reffered to as 'Code'. In that petition, maintenance was claimed

since all the three of them had been neglected by the petitioner, Rajinder Nargotra, having refused to maintain. During the pendency of these

proceedings, interim maintenance was granted at the rate of Rs. 200/- per month to wife, and Rs. 100/- to each of the two daughters.

The main controveray, however, centres around is whether the amount of interim maintenance granted to the wife and the children in

proceedings u/s 488 Cr.P.C. can be allowed to be adjusted or set off against the final order of maintenance on the conclusion of the proceedings.

Undoubtedly, there is no express provision, which authorises the Magistrate to grant interim relief granting payment of maintenance pending

disposal of the main application for maintenance u/s 488 Cr.PC. This has, however, become a law by force of the judgment of the Apex Court in

Savitri Rawat Vs. Govind Singh Rawat, Section 488 Cr.P.C vests Magistrate with the power to direct a person having sufficient means, who

neglected or refused to maintain his wife unable to maintain herself and his legitimate or illegitmate minor children unable to maintain themselves. A

quick remedy is contemplated from the implied authority of the Magistrate to protect the applicants against starvation and tied over immediate

difficulties, besides being rendered destitute. The object of the provisions of Sections 488, 489 and 490 is to prevent vagrancy and destitution by

providing them atleast reasonable amount of maintenance to the wife and the children pending final disposal of the application, so that they may live

upto the date of final order and reap the fruits of the proceedings u/s 488 Cr.PC. The contrary view of this implied power of the Magistrate may,

however, occasion grave hardship for the wife and the children, who may have no means to subsist till the final order on the application u/s 488

Cr.P.C. The Apex Court has gone to the extent of empowering the Magistrate in a manner that he may allow interim maintenance after recording a

satisfaction even on an affidavit filed by the applicants stating the grounds in support of her claim for interim maintenance. The affidavit in event is to

be treated as supplying prima facie proof of the case of the applicants. Such an order is always subject to modification or even cancellation after

the respondent on notice appeared and heard.

Any order of interim maintenance passed by the Magistrate subject to other conditions referred to in the pending final disposal application is

deemed to be in exercise of the power conferred by necessary implication of the provisions of the Code. The intentment of the provisions is to fulfil

social purpose and the purpose is to prevent the neglected wife and children from destitution. The object is to compel the husband to perform the

moral obligation, which he owes towards his wife and children to maintain. In the nature of the proceedings, the Apex Court found, it imperative

that the wife and children having no means to subsist, to provide interim relief of maintenance through judicial apparatus in directing the husband to

fulfil his moral obligation. The life of interim maintenance is only upto the date of passing of the final order and during the pendency of the

proceedings. It is not disputed that the application for grant of permanent maintenance u/s 488 Cr.PC has been finally disposed of on 08-03-2001

and Rs. 2,200/- (Rs. 1,000/- to the wife and Rs. 600/- to each of the two minor daughters) per month by way of maintenance from the date of the

order, i.e., 08-03-2001, have been ordered to be paid by the petitioner herein to the respondent herein. If the argument as act set off in interim

maintenance by way of adjustment in final order of maintenance is accepted, the very purpose of granting interim maintenance would be frustrated.

The interim maintenance is a sort of summary remedy so as to ensure that the neglected wife and children are not rendered destitute, for their

subsistence. The final order of maintenance passed by the Magistrate is to take effect-from the date of the order and does not cover the period of

interim maintenance. On this count also, argument putforth by Mr. Koushal learned counsel for the petitioner, appears to be devoid of any legal

force to merit acceptance. It cannot, therefore, be said by any stretch of reasoning that recognition of some Implied power(s) conferred upon the

Magistrate for passing an, interim order to pay maintenance would serve the desired purpose, if intended to be set off against the final order on the

disposal of the application u/s 488 Cr.PC.

Construed in the light of its primary object and the nature of the jurisdiction conferred by the force of the Apex Court Judgment in Savitri Devi

Versus Govind Singh (referred to supra), it would be amply clear that the interim maintenance granted to the neglected wife and children till the

determination of the wife's claim for maintenance u/s 488 is contemplated/envisaged to be adjusted against the amount of maintenance awarded in

final order. The order propounded by Judicial Magistrate Sub Registrar, Jammu, in my view, does not suffer from any infirmity or palpable illegality

to warrant interference in Revision.

Having regards to the facts and circumstances discussed above in its cumulative, the Revision possessing no merit is hereby dismissed.