Veerabhadrappa vs Smt. Vedavathi

The respondent filed an application u/s 125 of the Cr. P.C. before the JMFC, Challakere, seeking maintenance from the petitioner-husband.

Notice was ordered thereon to the petitioner husband. In the meantime, respondent filed an interlocutory application i.e., I.A. No. I seeking interim

maintenance. Learned Magistrate, by his order dated 31-10-1996, granted interim maintenance of Rs. 200/- per month from the said date. Notice

of I.A. No. I was also ordered. Petitioner-husband appeared through a Counsel and filed objections. Matter was then posted from time to time for

payment of interim maintenance and on 5-4-1997, petitioner-husband filed objections to the main petition as also to the interlocutory application.

It may be mentioned in this context that the petitioner-husband had appeared through a Counsel on 7-12-1996, and, it was only on 5-4-1997 that

he filed objections to the main petition and to the interlocutory application. Matter was then posted for enquiry from time to tune. In the meantime,

learned Magistrate straightaway issued an arrest warrant against the petitioner-husband with regard to recovery of interim maintenance. On 31-7-

1997, when the petitioner-husband was present in Court, and when the arrest warrant issued earlier had also remained unexecuted, learned

Magistrate passed the order to the following effect:

Arrest warrant to respondent returned unexecuted.

Re-issue arrest warrant to respondent if P.F. paid. Petitioner examined P.W.1. Exhibits 1 to 7 marked. Respondent present. Arrest warrant in

existence. He has not paid arrears Interim maintenance from 31-10-1996 to till today. He has not paid interim maintenance. Hence respondent is

in default of interim maintenance from 31-10-1996 to 31-7-1997. Hence respondent convicted for default of arrears of interim maintenance of Rs.

200A P.M. He is in arrears of 9 months. Hence respondent is convicted for 9 months default of arrears of interim maintenance.

Issue convict warrant against respondent.

Call on 16-8-97"".

Petitioner-husband, in this revision petition u/s 397 of the Cr. P.C. questions the above said order.

At the outset, it needs to be stated that the order of granting interim maintenance by the learned Magistrate on 31-10-1996 has not been

challenged by the petitioner-husband. That order very much holds the field till today, making it obligatory on the part of the petitioner-husband to

pay the same until his objections are heard by the learned Magistrate, and until his obligation thereunder would cease only if, on hearing his

objections, the I.A. comes to be dismissed. We are only concerned with the petitioner-husband''s challenge to the order dated 31-7-1997

extracted above, namely, with regard to the mode of recovery of the said interim maintenance.

The order of payment of interim maintenance is in vogue according to the decision of the Supreme Court in the case of Savitri Rawat Vs.

Govind Singh Rawat, . This is what the Supreme Court said in that regard in paragraph 6 of the judgment:

In view of the foregoing it is the duty of the Court to interpret the provisions in Chapter IX of the Code in such a way that the construction

placed on them would not 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 u/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 are

necessary to make its orders effective. This principle is embodied in the maxim '' ubi aliquid conceditur, conceditur et id sine quo res ipsa 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., page 1797). Whenever anything is required to be done by law and it is found impossible to do that thing unless something

not authorised 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 ex parte 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 reason 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"".

It is only on the basis of what the Supreme Court said that the learned Magistrate has passed the order awarding interim maintenance,

obviously, on being convinced about the prima facie case having been made out on the basis of the affidavit in support of I.A. No. I. It is of course

open to the petitioner-husband to file objections to I.A. No. I which he has already done, and to urge through his Counsel to substantiate the

contentions that he has taken in his objection statement, to convince the learned Magistrate that the interim maintenance was not liable to be paid.

If the reasons that he advances were to be accepted by the learned Magistrate, I.A. No. I naturally comes to be dismissed. But, there can be no

disputing the position that so long as the learned Magistrate passes the order dismissing I.A. No. I, or so long as a higher forum interferes with the

said order of interim maintenance, either modifying it or setting it aside, the order of the learned Magistrate granting interim maintenance holds the

field, and, there is no way the petitioner-husband can escape from his liability to pay interim maintenance as ordered. It is recognising this position,

that we have to proceed and as said earlier, that all that is questioned herein is the mode of recovery of the said interim maintenance.

Maintenance amount has to be recovered in the manner provided for recovery of the fine amount. That takes us to Section 421 of the Cr. P.C.

One of the methods thereunder is issue of a warrant for levying of the amount by attachment and sale of any movable property belonging to the

husband. It is only where the amount is not recovered in execution of the said warrant, or the whole of the amount is not recovered in execution of

the said warrant, then, for the whole or any part of each month''s allowance remaining unpaid after the execution of the warrant, imprisonment shall

have to be ordered which may extend to one month for each month''s allowance. But what the learned Magistrate has done by the impugned order

is to straightaway issue arrest warrant, and, on finding the petitioner-husband in the Court, sending him to jail by way of imprisonment for a period

of nine months, because the interim maintenance had not been paid for nine months. It is clearly unsustainable in law, and, it needs to be set aside,

and the matter remitted to the learned Magistrate to recover the amount of interim maintenance including the arrears by first issuing warrant for

attachment and sale of movable property of the petitioner-husband, and, if any balance is still due, then only to resort to sentencing the husband to

imprisonment as stated above.

Mr. Sunil, learned Counsel for the petitioner, however urges this: The mode of recovery of interim maintenance is no different from the one

provided for recovery of maintenance awarded after final disposal of the application u/s 125 of the Cr. P.C. Therefore, even for recovery of

interim maintenance, as required by the first proviso to sub-section (3) of Section 125 of the Cr. P.C., the wife has to make an application. Even

after such an application is made, notice of it shall have to be given to the husband to enable the husband to show cause against issue of such

warrant as per sub-section (3) of Section 125 of the Cr. P.C. Though not stated in so many words, the argument of Sri Sunil would further take us

to the second proviso to sub-section (3) of Section 125 of the Cr. P.C. also, wherein the husband can offer to maintain his wife.

Sri Sunil, learned Counsel for the petitioner, by contending as stated above, therefore submits that when the matter goes back to the learned

Magistrate on the impugned order being set aside, petitioner-husband should have an opportunity to convince the learned Magistrate with regard

to the necessity of dismissing I.A. No. I on merits without the corresponding obligation on the part of the petitioner-husband to pay interim

maintenance in the meantime.

First of all, as noted at the very outset, the order of 31-10-1996 by which the learned Magistrate granted interim maintenance, has not been

questioned in any forum so far. Petitioner-husband''s objections to the said order of interim maintenance by way of his objections to I.A. No. I are

yet to be heard and a decision on I.A. No. I taken. If, after hearing both the parties on I.A. No. I on merits, learned Magistrate were to hold that

I.A. No. I needs to be dismissed, then, from that day onwards i.e., from the day I.A. No. I is dismissed, the husband would be no longer under an

obligation to pay interim maintenance. If the learned Magistrate were to allow I.A. No. I, the obligation to pay interim maintenance would continue.

But, what is of significance is that even if, on so hearing both the parties on merits of I.A. No. I, if the learned Magistrate were to dismiss I.A. No.

I on a particular day, the obligation of the husband to pay interim maintenance would cease only from that day onwards i.e., from the day I.A. No.

I is dismissed. Notwithstanding such dismissal of I.A. No. I, husband''s obligation to pay interim maintenance from the date it was initially ordered,

until the date I.A. No. I was dismissed, cannot be wished away because, during that entire period, the order of interim maintenance was very much

an order by a competent Court holding the field, not interfered with nor modified by any higher forum. The said position, therefore, clearly needs to

be borne in mind while appreciating the contention of Sri Sunil, learned Counsel for the petitioner.

Sri Sunil, learned Counsel for the petitioner has referred to several decisions to the effect that not only that before the husband could be

imprisoned for arrears, a warrant in the manner of recovery of fine has to be issued, but also that even before such warrant is issued, he should be

issued a notice to show cause as to whether, and if so, for what reasons he is not obliged to pay the amount. All of them relate to payment of

maintenance as determined on final adjudication of the application u/s 125 of the Cr. P.C. There can be no disputing the said proposition, and,

sub-section (3) of Section 125 of the Cr. P.C. together with its two provisos make it absolutely clear. We are however concerned herein not with

payment of maintenance as determined on final adjudication of an application u/s 125 of the Cr. P.C. We are herein concerned with payment of

interim maintenance that is being ordered in many of the proceedings initiated u/s 125 of the Cr. P.C. after the decision of the Supreme Court in the

case of Savitri, supra. The Supreme Court, while dispelling the apprehension that the recognition of such implied power to grant interim

maintenance would lead to passing of the interim orders in a large number of cases where liability to pay maintenance may not exist, observed that

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. It was then that the Supreme Court observed that the Magistrate may 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 prima facie case for making such an order, and, that such an order may also be made in an appropriate case ex parte, 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.

The Supreme Court observed that the affidavit may be treated as supplying prima facie proof of the case of the applicant. It further observed that if

the allegations in that 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. The Supreme Court therefore concluded that having regard to the nature of the jurisdiction exercised by a Magistrate u/s

125 of the Cr. P.C., such a 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, pending final disposal of the application.

From the observations of the Supreme Court referred to above, it is absolutely clear that on a prima facie case being made out, even ex parte,

the Magistrate can pass an order of interim maintenance and any such order is, as referred to by the Supreme Court in its earlier decision in the

case of Shri Bhagwan Dutt Vs. Smt. Kamla Devi and Another, , extracted in paragraph 5 of the above said decision of the Supreme Court in Smt.

Savitri''s case, supra, to ensure that the neglected wife and children are not left beggared and destituted on the scrap-heap of the society and

thereby driven to a life of vagrancy, immorality and crime for their subsistence. Even before the right of the applicant u/s 125 of the Cr. P.C. is

adjudicated upon on merits after hearing both sides, implied power of the Magistrate to pass an order of interim maintenance on a prima facie case

being made out, even ex parte, is recognised by the Supreme Court. If that be so, it means that until the said order of interim maintenance is

modified or cancelled, it needs to be complied with. Even for compliance with such an order, if an application under the first proviso to sub-section

(3) of Section 125 of the Cr. P.C. is insisted upon, or if the husband, without compliance with such an order, is permitted to make the offer under

the second proviso to sub-section (3) of Section 125 of the Cr. P.C., or if, without compliance with such an order, if the husband is permitted to

ask for an opportunity to show sufficient cause within the meaning of sub-section (3) of Section 125 of the Cr. P.C., then, it would frustrate the

very object of granting interim maintenance in exercise of the implied power as recognised by the Supreme Court in the case of Savitri, supra. It is

therefore not possible to agree with the contentions of Sri Sunil, learned Counsel for the petitioner.

Petition allowed. Impugned order of the learned JMFC, Challekere, dated 31-7-1997 in Criminal Misc. No. 30 of 1996 is set aside. Learned

Magistrate is directed to hear I.A. No. I on merits and to dispose it of on merits expeditiously, at any rate, within one month from the date he

receives a copy of this order. Needless to say that right from the date such interim maintenance was ordered i.e., from 31-10-1996, the obligation

of the petitioner-husband to pay interim maintenance has continued throughout, and shall continue unless on I.A. No. I, the said order is either

modified or cancelled. Petitioner-husband therefore must necessarily comply with the said order until a decision is taken on I.A. No. I either

modifying or cancelling the order. All that needs to be stated by way of caution is that the learned Magistrate should ensure recovery of such

interim maintenance from the petitioner-husband by first issuing warrant for attachment and sale of movables of the petitioner-husband, and, only in

respect of the balance that may still remain, that the learned Magistrate shall have to resort to sentencing the petitioner-husband, imprisonment as

provided for in Section 125 of the Cr. P.C.