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2002 DIGILAW 26 (JK)

Rajinder Nargotra v. Anita Nargotra

2002-02-22

S.K.GUPTA

body2002
1. Through the currency of this Revision, petitioner, Rajinder Nargotra, seeks reversal of order dated 16-10-2001 drawn by Sub-Registrar Judicial Magistrate, Jammu. By the aforesaid order, Sub Registrar Judicial Magistrate, Ist Class, has declined the prayer of the petitioner for restitution of interim maintenance against the final order of the maintenance on the conclusion of the proceedings under Section 488 Code of Criminal Procedure. 2. A short controversy raised in this petition is as to whether interim maintenance during the pendency of the proceedings under Section 488 Cr.P.C. is not an addition to final order of maintenance, but is in aid of and ancillary to final maintenance order passed in the pendency of proceedings and, therefore, to be adjusted against the final order of maintenance. Anita Nargotra herself and the guardian of two minor daughters preferred a petition under Section 488, Code of Criminal Procodure, 1989 (1933 A.D.) (herein after reffered to as Code. In that petition, maintenance was claimed since all the three of them had been neglected by the petitioner, Rajinder Nargotra, having refused to maintain. During the pendency of these proceedings, interim maintenance was granted at the rate of Rs.200/- per month to wife, and Rs.100/- to each of the two daughters. 3. The main controveray, however, centres around is whether the amount of interim maintenance granted to the wife and the children in proceedings under Section 488 Cr.P.C.can be allowed to be adjusted or set off against the final order of maintenance on the conclusion of the proceedings. Undoubtedly, there is no express provision, which authorises the Magistrate to grant interim relief granting payment of maintenance pending disposal of the main application for maintenance under Section 488 Cr.PC. This has, however, become a law by force of the judgment of the Apex Court in Smt. Savitri Devi Versus Govind Singh Rawat, AIR 1986 SC 984. Section 488 Cr.P.C vests Magistrate with the power to direct a person having sufficient means, who neglected or refused to maintain his wife unable to maintain herself and his legitimate or illegitmate minor children unable to maintain themselves. A quick remedy is contemplated from the implied authority of the Magistrate to protect the applicants against starvation and tied over immediate difficulties, besides being rendered destitute. A quick remedy is contemplated from the implied authority of the Magistrate to protect the applicants against starvation and tied over immediate difficulties, besides being rendered destitute. The object of the provisions of Sections 488, 489 and 490 is to prevent vagrancy and destitution by providing them atleast reasonable amount of maintenance to the wife and the children pending final disposal of the application, so that they may live upto the date of final order and reap the fruits of the proceedings under Section 488 Cr.PC. The contrary view of this implied power of the Magistrate may, however, occasion grave hardship for the wife and the children, who may have no means to subsist till the final order on the application under Section 488 Cr.P.C. The Apex Court has gone to the extent of empowering the Magistrate in a manner that he may allow interim maintenance after recording a satisfaction even on an affidavit filed by the applicants stating the grounds in support of her claim for interim maintenance. The affidavit in event is to be treated as supplying prima facie proof of the case of the applicants. Such an order is always subject to modification or even cancellation after the respondent on notice appeared and heard. 4. Any order of interim maintenance passed by the Magistrate subject to other conditions referred to in the pending final disposal application is deemed to be in exercise of the power conferred by necessary implication of the provisions of the Code. The intentment of the provisions is to fulfil social purpose and the purpose is to prevent the neglected wife and children from destitution. The object is to compel the husband to perform the moral obligation,which he owes towards his wife and children to maintain. In the nature of the proceedings, the Apex Court found, it imperative that the wife and children having no means to subsist, to provide interim relief of maintenance through judicial apparatus in directing the husband to fulfil his moral obligation. The life of interim maintenance is only upto the date of passing of the final order and during the pendency of the proceedings. The life of interim maintenance is only upto the date of passing of the final order and during the pendency of the proceedings. It is not disputed that the application for grant of permanent maintenance under Section 488 Cr.PC has been finally disposed of on 08-03-2001 and Rs.2,200/- (Rs.1,000/- to the wife and Rs.600/- to each of the two minor daughters) per month by way of maintenance from the date of the order, i.e., 08-03-2001, have been ordered to be paid by the petitioner herein to the respondent herein. If the argument as act set off in interim maintenance by way of adjustment in final order of maintenance is accepted, the very purpose of granting interim maintenance would be frustrated. The interim maintenance is a sort of summary remedy so as to ensure that the neglected wife and children are not rendered destitute, for their subsistence. The final order of maintenance passed by the Magistrate is to take effect-from the date of the order and does not cover the period of interim maintenance. On this count also, argument putforth by Mr. Koushal learned counsel for the petitioner, appears to be devoid of any legal force to merit acceptance. It cannot, therefore, be said by any stretch of reasoning that recognition of some Implied power(s) conferred upon the Magistrate for passing an, interim order to pay maintenance would serve the desired purpose, if intended to be set off against the final order on the disposal of the application under Section 488 Cr.PC. 5. Construed in the light of its primary object and the nature of the jurisdiction conferred by the force of the Apex Court Judgment in Savitri Devi Versus Govind Singh (referred to supra), it would be amply clear that the interim maintenance granted to the neglected wife and children till the determination of the wifes claim for maintenance under Section 488 is contemplated/envisaged to be adjusted against the amount of maintenance awarded in final order. The order propounded by Judicial Magistrate Sub Registrar,. Jammu, in my view, does not suffer from any infirmity or palpable illegality to warrant interference in Revision. 6. Having regards to the facts and circumstances discussed above in its cumulative, the Revision possessing no merit is hereby dismissed.