Rashidan vs Gafoor

Mahendra Bhushan Sharma, J.—A point involved in this revision petition, as to whether in proceedings u/s 125 Cr.PC the learned Magistrate, has powers to grant interim maintenance to the wife in my opinion is no longer res-integra in view of the decisions of their Lordships of the Supreme Court in SLP No, 1028 of 1984 Savitri v. Govind Singh Rawat, decided on 9th October 1985. In the aforesaid case their Lordships of the Supreme Court observing that there is no express provision in the Code of Criminal Procedure which authorises a Magistrat to make an interim order directing payment of maintenance pending disposal of application of maintenance held that it is the duty of the court interpret the provisions in Chapter IX of the Code in such a way that the restriction placed on them would not defeat the very object of the legislation and laid down the law that the Magistrate has powers to pass an order directing a person against an application is made u/s 125 Cr.PC to reasonable sum by way of interim maintenance subject to other conditions referred to there till the final decision of the application. Therefore, in view of this pronouncement of their Lordships of the Supreme Court a reasonable sum by way of interim maintenance can be allowed to the applicant provided the conditions laid down in Section 125 Cr.PC. and given here in are prima facie satisfied.

(a) That the person again whom an order of interim maintenance is made must be having sufficient means and should refuse or neglect to maintain his wife or his legitimate or illegitimate minor child unable to maintain or (b) his father or mother unable to maintain himself or herself.

Therefore prima facie there must be proof of neglect or refusal by the person against whom an interim order for maintenance is made. While making an order for interim maintenance the income of the husband in case the order is made in favour of the wife and the circumstances of the case are also to be taken into consideration.

Thus, the learned Sessions Judge, Kota was not correct when in his order dated September 11, 1985,. he took a view that under the Code of Criminal Procedure no order of interim maintenance on an application u/s 125 Cr. PC can be made.

But the learned Sessions Judge, has not adverted to other aspect of the case as to whether prima facie refusal or neglect by the husband in the facts and circumstances is made out or not and'' whether the sum of Rs. 350/- awarded by way of interim maintenance, taking the income of husband Rs. 600/- is just or excessive.

I therefore, allow this revision petition set, aside the order of learned Sessions Judge, Kota, and send the case back to him with a direction to re-register it at its original number and thereafter decide the case afresh in the light of the observations made above after notice to Shri Gafoor, as early as possible.