SAVITRI W/O SHRI GOVIND SINGH RAWAT versus SHRI GOVIND SINGH RAWAT

VENKArARAMIAH, J, The short question which arises for consideration in this case is whether a magistrate before whom an application is made under section 125 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'the Code') can made an interim order directing the person against whom the application is made under that section to pay reasonable maintenance to the applicant concerned pending disposal of the application.

p. 617

In the instant case, the petitioner was an applicant ,under section 125 of the Code before the ,Metropolitan Magistrate, Delhi. In her application, she prayed for an order against her husband directing ltim to pay maintenance to her. Iumediately after she filed the said application, she made another application before the magistrate for an interim order directing her husband to pay some reasonable sum by way of maintenance pending disposal of the main application. The learned magistrate declined to such an interim order on the ground that there was no express provision in the Code enabling a magistrate to pass such an order. Aggrieved the said order the application has filed this special leave petition under Article 136 of the Constitution.

p. 617

It is true that there is no express provision in the Code which authorises a magistrate to make an interim order directing payment of maintenance pending disposal of an application for maintenance. The Code does not also expressly prohibit the making of such an order. The question, is whether such a power can be implied to be vested in a magistrate having regard to the nature of the proceedings under section 125 and other cognate provisions found in Chapter IX of the Code which is entitled "Order For Maintenance of Wives, Children and Parents". Section 125 of the Code confe.rs power on a magistrate of the first class to direct a person having sufficient means but who neglects or refuses to maintain (i) his wife, unable to maintain hereself, or (ii) his legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or (iii) his legitimate or illegitimate child (not being a married daughter) who has attained majority, where such child is, by reason of any physical or mental abnormality or injury unable to maintain itself or -(iv) his father or mother, unable to maintain himself or herself, upon proof of such neglect or refusal, to pay a monthly allowance for the maintenance of his wife or such child, father or mother, as the case may be, at such monthly rate not exceeding five hundred rupees in the whole as such magistrate thinks fit. Such allowance shall be payable from the date of the order, or, if so ordered from the date of the application for maintenance. Section 126 of the Code prescribes the procedure for the disposal of an application made under section 125. Section 127 of the Code provides for alteration of the rate of maintenance in the light of the changed circumstances or an order or decree of a competent civil court. Section 128 of the Code deals with the enforcement of the order of maintenance. It is not necessary to refer to the other details contained 'in the above said provisions.

pp. 617–618

A reading of the above provisions shows that they are intended to provide for a preventive remedy for securing payment of maintenance which can be granted quickly and in deserving cases with effect from the date of the application ltself. The rate of maintenance that can be awarded is also limited even though under the law governing the parties a competent civil court may order payment of a larger sum by way of maintenance in appropriate cases. The civil courts have inherent.power to grant interim maintenance pending disposal of the suit for maintenance. The point for consideration is whether the magistrate can also make such an interim order or not.

p. 618, margin C

The jurisdiction of a magistrate under Chapter IX of the Code is not strictly a criminal jurisdiction. While passing an order under that Chapter asking a person to pay maintenance . to his wife, child or parent, as the case may be, the magistrate is not imposing any punishment on such person for a crime committed by him. Chapter IX of the Code contains a summary remedy for securing some reasonable sum by way of maintenance, subject to a decree, if any, which may be made in a civil court in a given case provided the Personal I.aw applicable to the person concerned authorises the enforcement of any such right to maintenance. The Code, however, provides a quick remedy to protect the applicant against starvation and to tide over immediate difficulties. Chapter IX of the Code does not in reality create any serious new obligation unknown to Indian social life. In Shri Bbagwau Dutt v. Smt, Kamla Devi and Anr., [1975] 2. s.c.R. 483 at 486,this Court has explained the object of sections 488, 489 and 490 of the Code of Criminal Procedure, 1898 which are replaced by the provisions in Chapter IX of the Code thus :

p. 618, margin D

"Sections 488, 489 490 constitute one family. They have been grouped together in Chapter XXXVl of the Code of 1898 under the caption "Of the maintenance of wives and children". This chapter, in the words of Sir James Fitzstephen provides "a mode of preventing vagrancy, or at least of preventing its consequences". These provisions are intended to fulfil a social purpose. Their object is to compel a man to perform the moral obligation which he owes to society in respect of his wife and children. By providing a simple, speedy but limited relief, they seek to ensure that the neglected wife and children are not left beggared and destituted on the scrap-heap of society and thereby driven to a life of vagrancy, immorality and crime for their subsistence. Thus, section 488 is not intended to provide for a full and final determination of the status and personal rights of the parties. The jurisdiction conferred by the section on the Magistrate is more in the nature of a preventive rather than a remedial jurisdiction; it is certainly not punitive. As pointed out in Thmpson's case 6 205 the scope of the Chapter XXXVI is limited and the Magistrate cannot, except as thereunder provided, usurp the jurisdiction in matrimonial disputes possessed by the civil courts. Sub-section (2) of section 489 expressly makes orders passed under Chapter XXXVl of the Code subject to any final adjudication that may made by a· civil court between the

pp. 618–619, margin E

parties regarding their status and civil rights."

p. 619, margin E

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 under section 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 under section 125 of the Code also take several mo!'ths for being disposed of finally. In order to enjoy the fruits of the proceedings under section 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 principle is embodied in the mal<itn '.!!£!. conceditur et ~ ~ quo ~ ipsa ~ anything is conceded, there is conceded which the thing itself cannot exist.) Dictionary of English Law 1959 E.cln. F.1797). required to be done by law and it is found itnpossible to thing unless s0tnething not authorised in done then that something else will be supplied intendtnent. Such a cons true ti on thoush adtnissible in the present case however would of the legislation under consideration. A to result in grave hardship to the applicant, means to subsist until the final order room for the apprehension that the recognition power would lead to the passing of interitn number of cases where the liability to pay maintensnce exist. It is quite possible that such contingency few cases but the prejudice caused thereby whom it is tnade is tninimal as it can be hearing both the parties. The magistrate, upon an affidavit being filed by or on concerned stating the grounds in support of maintenance to satisfy himaelf that there for making such an order. Such an order appropriate case ~ ~ pending service application subject to any tn0d1fication cancellation that may be passed after the a civil court can pass such interitn orders is no reason why a magistrate should not purpose of issuing directions regarding maintenance. The affidavit tnay be treated facie proof of the case of the applicant. the application or the affidavit are not to the person against wh0tn such an order is order is unsustainable. Having regard to the diction exercised by a tnagistrate under section we feel that the said provision should be ing power by necessary implication on the order directing a person against whom under it to pay a reasonable sum by way subject to the other conditions referred disposal of the application. In taking taken note of the provisions of section Courts Act, 1984 (Act No. 66 of 1964) passed ment proposing to transfer the jurisdiction exercisable by magistrates under section 125 of the Code to the Fand.ly Courts A constituted under the said Act.

pp. 619–621, margin E

The above opinion according to us is based on the true construcHon of the relevant provisions of the Code. lie are, however, informed that the dispute regarding maintenance is now i; finally settled between the parties. hence no further orders are necessary in this case. The petition is accordingly disposed of. A·P .J,

p. 621