Sri. V. Jagadeesh vs Smt. Bhagu Bai

B.S. Patil

In this writ petition, petitioner is challenging the order dated 09.08.2011 passed in Crl. Mis. No. 63/2008 by the learned 6th Additional Family Judge, Bangalore. Copy of the said order is produced at Annexure-G. By the said order, while allowing the application filed by the petitioner-husband u/s 126(2) of the Code of Criminal Procedure (for short ''Cr.P.C.) and setting aside the order dated 06.07.2009 passed earlier the Court below has held that the petitioner was liable to pay interim maintenance at Rs. 3,000/- per month to the respondent-wife from the date of petition till-the disposal of the case.

Petitioner and the respondent are the husband and wife. The respondent herein has filed Crl.Mis.No.63/2008 u/s 125 Cr.P.C. seeking maintenance in a sum of Rs. 2.00 lakhs per month. Along with the said petition, an application in I.A.No.2 was fled by the respondent seeking interim maintenance at the rate of Rs. 1,00. lakh per month from the date of petition till the disposal of the main petition along with a sum of Rs. 20.000/- towards litigation expenses. Though the petitioner was served with notice on the petition and although he filed objections to the main petition, he did not participate in the proceedings before the Court below. As a result, the Court below proceeded to pass an order on 06.07.2009 disposing of Crl.Mis.No.63/2008 and directing the petitioner to pay a sum of Rs. 35,000/- per month as maintenance along with a sum of Rs. 5,000/- towards cost.

This order was challenged before this Court by filing RPFC No.54/2010. This Court disposed of the petition declining to interfere in the matter but reserving Liberty to the petitioner to file an application before the Court below u/s 126(2) Cr.P.C. for setting aside the order. Thereafter, the petitioner filed at: application u/s 126(2) Cr.P.C. requesting the Court to set aside the order dated 6.07.2009. The impugned order is now passed on the said application.

The Court below has allowed the application but has made it clear that the respondent-wife is entitled for interim maintenance in a sum of Rs. 3,000/- per month from the date of petition till the date of disposal of the case. Aggrieved by this order, the present writ petition is filed.

I have heard the learned counsel for the parties and perused the impugned order and the entire materials on record.

Learned counsel for the petitioner submits that the learned Judge of the family Court erred in directing payment of interim maintenance at the rate of Rs.3,000/- per month from the date of petition as the matter before him was not for consideration of the prayer for interim maintenance but was on the application made by the petitioner u/s 126(2) Cr.P.C. It is his submission that the petitioner had no opportunity to show to the Court, below that he was not bound to pay the interim maintenance with effect from the date of petition.

Proviso to Sub-Clause (2) of Section 126 Cr.P.C. makes it very clear that if the Magistrate is satisfied that the person against whom an order for payment of maintenance is proposed to be made is willfully avoiding service, or willfully neglecting to attend the Court, the Magistrate may proceed to hear and determine the case ex-parte and any order so made may be set aside for good cause shown on an application made within three months from the date thereof subject to such terms including terms as to payment of costs to the opposite party as the Magistrate may think just and proper. In the instant case, the learned Magistrate has found it just and appropriate to set aside the earlier order which was passed without providing a fair and reasonable opportunity to the petitioner to participate in the proceedings and taking note of the fact that it was virtually an ex-parte order. While setting aside the said order, the Court below has though it fit that the petitioner has to pay interim maintenance to his wife at the rate of Rs. 3,000/- per month. The discretion exercised by the Court below is in accordance with the proviso to Sub-Clause 2 of Section 126 Cr.P.C. as referred to hereinabove. Therefore, the contention of the learned counsel for the petitioner that the Court below has acted without authority of law and without jurisdiction while passing such an order is unsustainable.

It is further necessary to notice here that the respondent-wife has filed the application for interim maintenance along with the main matter. She has prayed for payment of interim maintenance in a sum of Rs. 1.00 lakh per month. It is not the case of the petitioner that his wife-respondent herein is having any source of income and is capable of maintaining herself. In such circumstances, the petitioner cannot deny the respondent the right to sustain herself. Amount of Rs. 3,000/- awarded is also a meager sum which cannot be termed as excessive in the facts and circumstances of the case. However, ends of justice require that the Court below has to be directed to expedite the disposal of the petition. In the circumstances, as I do not find any merit in the writ petition, the same is dismissed. However, the Court below is directed to dispose of the petition as expeditiously as possible, at any rate within a period of three months from the date of receipt of a copy of this 01 der.