Tasleema and Another vs Aijaz Ahmad Sheikh

Mansoor Ahmad Mir, J.—It appears that Mst. Tasleema, wife of Aijaz Ahmad Sheikh, presented an application u/s 488 Cr.P.C. on 22nd

July, 2004, invoking the jurisdiction of Chief Judicial Magistrate, Srinagar for granting of maintenance to her and her minor girl, namely, Khushban

Aijaz, which was transferred to the Court of IInd Additional Munsiff, Srinagar. The respondent filed objections.

It appears that learned Magistrate passed order dated 18th March, 2005 whereby the learned Magistrate has granted interim maintenance in

favour of minor girl from the date of order and refused to grant interim maintenance to the wife, applicant No. 1.

The petitioners feeling aggrieved about the said order, directed revision petition against the said order before the Pr. District & Sessions Judge,

Srinagar and the said revision petition came to be transferred to the Court of 1st Additional Sessions Judge, Srinagar. The learned 1st Additional

Sessions Judge, Srinagar, after hearing the parties came to the conclusion that the Magistrate has fallen in error while refusing interim maintenance

to wife, applicant No. 1 and has also held that the maintenance should have been granted in favour of minor girl from the date of application and

recommended that the petitioner No. 1, wife, is entitled to maintenance at the rate of Rs. 1000/- per month from the date of application and the

minor girl is entitled to interim maintenance at the rate of Rs. 800/- per month from the date of application and accordingly made the reference to

this Court.

Heard.

Mr. Qureshi argued that learned Sessions Judge cannot fix the quantum of compensation and if at all the learned Sessions Judge was of the opinion

that interim maintenance should not have been refused to the wife, he should have recommended that Magistrate be directed to fix the quantum

because the revisional court cannot fix the quantum of maintenance. Further argued that the interim maintenance cannot be granted from the date of

application but the same is to be granted from the date of order.

Learned Counsel for the respondents herein i.e. applicants in the main petition argued that reference made is well reasoned and be accepted.

Considered.

It is beaten law of the land that no appeal lies against the grant of interim maintenance or against the final order whereby the maintenance is

granted or refused. The only remedy available is the revision. The revisional court has to peruse the evidence and has to come to the conclusion

whether any illegality has been committed by the court below. The revisional court is within its jurisdiction to dismiss the application, modify the

order of maintenance by enhancing or reducing the quantum of maintenance fixed by the trial court. Thus it is not correct proposition of law that the

revisional court cannot fix the quantum of maintenance.

The Apex Court has in so many cases held that revisional courts can reduce or enhance the quantum of maintenance. My this view is fortified by

Apex Court judgments reported in 1983 SCC 426 (Mrs. Abha Astavans v. Suresh Astavans) and Ismsil Sheriff Vs. Nasarin, . It is profitable to

reproduce para-2 and para-5, respectively, of the said judgments herein, which reads as under:

After hearing learned Counsel on either side, we are satisfied that some more money should be paid by the husband for the education of ' the

child. We accordingly direct that a further sum of Rs. 250 per month be paid by the husband to the wife in addition to the amount already directed

by the High Court. It is hoped that the High Court will dispose of the appeal as expeditiously as possible.

5 As regards the quantum of maintenance awarded by the learned Magistrate, it is in evidence that the petitioner received a large sum of money at

the time of his retirement from service and is getting pension of Rs. 117 per month. It is therefore, clear that the sum of Rs. 20 awarded by the

learned Magistrate towards the maintenance of the respondent is not excessive. No other ground is urged on behalf of the petitioner. The petition

must, therefore, fail.

Thus I am of the considered view that the revision court has rightly fixed the quantum of interim maintenance awarded in favour of the petitioner.

It is also worthwhile to mention herein that at the time of granting of the interim maintenance evidence is not available before the court and the

court has to apply mind keeping in view the circumstances of the case in order to fix the quantum of maintenance. The learned Sessions Judge,

being the experienced judge, can fix the quantum without sending down the file to trial court because the trial court has not to record the evidence

in order to fix the quantum at the interim stage. In case the argument of Mr. Qureshi is accepted that will amount to delaying the matter and getting

the parties entangled in cumbersome procedure. Thereby the petitioners will be deprived from interim maintenance and that will also amount to

defeating the aim and object of the granting of the maintenance.

The Apex Court in the judgment titled Savitri Rawat Vs. Govind Singh Rawat, , has laid down the law that Section 488 Cr.P.C. or Section

125 of Central Code nowhere prohibits the Magistrate from granting the interim maintenance and accordingly held that Magistrate can grant interim

maintenance. It is profitable to reproduce para-6 of the said judgment herein:

In view of the foregoing it is the duty of the Court to interpret the provisions in Chap.IX of the Code insuch a way that the construction placed

on them would into defeat the very object of the legislation. In the absence of any express prohibition, it is appropriate to construe the provisions in

Chapter IX as conferring an implied power on the Magistrate to direct the person against whom an application is made under S.125 of the Code

to pay some reasonable sum by way of maintenance to the applicant pending final disposal of the application. It is quite common that applications

made u/s 125 of the Code also take several months for being disposed of finally. In order to enjoy the fruits of the proceedings u/s 125, the

applicant should be alive till the date of the final order and that the applicant can do in a large number of cases only if an order for payment of

interim maintenance is passed by the Court. Every Court must be deemed to possess by necessary intendment all such powers as arc necessary to

make its orders effective. This principle is embodied in the maxim 'ubi aliquid concediture, concedituret id sine quo res ipso esse non potest

(Where anything is conceded, there is conceded also anything without which the thing itself cannot exist.) Vide Earl Jowitt's Dictionary of English

Law 1959 Edn.p.1797) Whenever anything is required to be done by law and it is found impossible to do that thing unless something not

authorized in express terms be also done then that something else will be supplied by necessary intendment. Such a construction though it may not

always be admissible in the present case however would advance the object of the legislation under consideration. A contrary view is likely to

result in grave hardship to the applicant, who may have no means to subsist until the final order is passed. There is no room for the apprehension

that the recognition of such, implied power would lead to the passing of interim orders in a large number of cases where the liability to pay

maintenance may not exist. It is quite possible that such contingency may arise in a few cases but the prejudice caused thereby to the person

against whom it is made is minimal as it can be set right quickly after hearing both the parties. The Magistrate may, however, insist upon an affidavit

being filed by or on behalf of the applicant concerned stating the grounds in support of the claim for interim maintenance to satisfy himself that there

is a prima facie case for making such an order. Such an order may also be made in an appropriate case exparte pending service of notice of the

application subject to any modification or even an order of cancellation that may be passed after the respondent is heard. If a civil Court can pass

such interim orders on affidavits, there is no reasons why a Magistrate should not rely on them for the purpose of issuing directions regarding

payment of interim maintenance. The affidavit may be treated as supplying prima facie proof of the case of the applicant. If the allegations in the

application or the affidavit are not true, it is always open to the person against whom such an order is made to show that the order is unsustainable.

Having regard to the nature of the jurisdiction exercised by a magistrate u/s 125 of the Code, we feel that the said provision should be interpreted

as conferring power by necessary implication on the Magistrate to pass an order directing a person against whom an application is made under it to

pay a reasonable sum by way of interim maintenance subject to the other conditions referred to the pending final disposal of the application. In

taking this view we have also taken note of the provisions of Section 7(2)(a) of the Family Courts Act, 1984 (Act No. 66 of 1984) passed

recently by Parliament proposing to transfer the jurisdiction exercisable by Magistrates u/s 125 of the Code to the Family Courts constituted under

the said Act.

The aim and object of granting maintenance is to save the petitioners from destitution, vagrancies and other social evils. If the argument of

learned Counsel for the respondent is accepted then the purposes of granting maintenance will be defeated. It is worthwhile to mention that Section

488 Cr.P.C. which correspond to Section 125 of the Central Code, is just to provide maintenance summarily in order to achieve the purpose

which is social one. I am of the considered view that the courts are under legal obligation and duty bound to interpret the provisions of Chapter

XXXVI of the Code of Criminal Procedure in a liberal way. The object of legislation is to advance the cause of justice and not to defeat the same.

In the given circumstances, the argument of Mr. Qureshi fails.

The second question which needs to be answered is whether the interim maintenance can be granted from the date of order or from the date of

application?

The interim maintenance can be granted from the date of application because Section 488 Cr.P.C. gives discretion to the Magistrate to award

maintenance from the date of application or from the date of order. But the discretion is to be exercised judiciously. It is now beaten law of the

land that the maintenance should be granted from the date of application and in case it is granted from the date of order, then Magistrate has to

spell out the reasons. My this view is fortified by a judgment delivered by this Court in case titled Mst. Shamima and Ors. v. Rahim Dar reported in

SLJ 2004 2 546. It is profitable to reproduce relevant portion of para-3 of the said judgment herein:

3...Clause 2 of Section 488 gives discretion to the Magistrate to pass an order or maintenance either from the date of order or from the date of

application for maintenance. Date of application for maintenance means date of application to the court which passes the order. The court has a

discretion in giving maintenance from the date of application. In case the discretion is exercised otherwise and the maintenance is allowed from the

date of order passed by the Court to which the application has been made, it must be supported by reasons. This is said so in order to achieve the

predominant purpose beyond the provisions contained in Section 488....

The granting of interim maintenance is just to provide food, shelter and clothes to the claimants during the pendency of the proceedings. It is to

be granted from the date of application and not from the date of order. If it will be held that the interim maintenance is to be granted from the date

of order and not from the date of application that will be against the concept, aim and object of Section 488 Cr.P.C. That will be also against the

concept evolved by the Apex Court in the judgment reported in 1986 SC 984 referred hereinabove.

Viewed thus, the interim maintenance can be granted from the date of application.

In the given circumstances, the recommendation made by the learned 1st Additional Sessions Judge is accepted and reference is accordingly

answered. Send down the record.