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2003 DIGILAW 1 (JK)

Anil Kumar v. Anuradha Gupta

2003-01-01

B.L.BHAT

body2003
1. Through the medium of petition in hand, the petitioner namely Anil Kumar has invoked the jurisdiction of this Court under Section 561-A Cr. PC for the quashment of proceedings initiated against him under Section 488 Cr. PC in case titled as Smt. Anuradha Gupta & Anr. v. Anil Kumar pending decision before the learned Special Municipal Magistrate, Jammu and also the order dated 28.10.2002 recorded by learned Special Municipal Magistrate with respect to application for grant of interim maintenance arising out of said proceedings. 2. It appears that Smt. Anuradha Gupta and minor child Aniket Gupta who approached the Inquiry Magistrate under Section 488 Cr. PC for awarding maintenance from the husband and the father respectively on the ground that despite he is person of sufficient means, has neglected and refused to maintain them. Alongside, respondent-wife and minor child they came to file an application for grant of interim maintenance. Learned Inquiry Magistrate after hearing the learned counsel for the parties, came to award monthly maintenance @ Rs. 700 to the respondent-wife and @ Rs. 500 to the respondent-son by virtue of order which is impugned in this petition. 3. Heard learned counsel for parties. Mrs. Sindhu Sharma, learned counsel fort the petitioner submits that the petitioner-husband has filed an application under section 9 of the Hindu Marriage Act against respondent-wife for grant of decree for Restitution of Conjugal Rights, which is pending decision in the court of Additional District Judge (Matrimonial Cases), Jammu; that this fact was brought into the knowledge of learned Inquiry Magistrate, who while passing the impugned order has declined to take notice of the fact that an application for grant of maintenance allowance had been filed much after the institution of the proceedings under Section 9 of the Hindu Marriage Act. 4. On the other hand, the contention of the learned counsel for the respondents is that filing of application by the husband for Restitution of Conjugal Rights, does not operate as bar to a destituted wife or a furlong child from approaching before the learned Magistrate for grant of monthly statutory maintenance during the pendency of the said application for Restitution of Conjugal Rights. 5. True it is that a Decree for Restitution of Conjugal Rights is complete answer to the application for maintenance under Section 488 Cr. 5. True it is that a Decree for Restitution of Conjugal Rights is complete answer to the application for maintenance under Section 488 Cr. PC by a wife but the pendency of such application where the issue as to whether the wife has withdrawn from the society of her husband voluntarily and the court has yet to come to the conclusion in this behalf, cannot operate as bar to the filing of petition by such wife for grant of monthly maintenance under Section 488 Cr. PC. 6. Viewed thus, there is no illegality or impropriety in the order impugned. The petition before the Inquiry Magistrate under Section 488 Cr. PC commenced by the respondent-wife and grant of interim maintenance pending this petition u/s 488 Cr. PC is not abuse of the process of law and cannot be interferred by this Court by invoking its inherent jurisdiction under Section 561-A Cr. PC. 7. The proceedings under Section 488 Cr. PC are intended for ensuring some supply of food, clothes and shelter to deserted wives and children whatsoever as the case may be from their respective husbands and father provided such a husband or father is a person of sufficient means and has neglected or refused to maintain his wife or child legitimate or illegitimate who is unable to maintain itself. The law is also settled now that the Inquiry Magistrate before whom the proceedings under Section 488 Cr. PC are pending, has the power to order the payment of monthly interim maintenance during the pendency of the proceedings. This being so, the impugned order does not require any interference from this court. Objections of the petitioner to the grant of monthly interim maintenance to his wife and minor child would be examined by the Inquiry Magistrate later on when the main application under Section 488 Cr. PC is decided. There is no illegality or impropriety in the order impugned. 8. Therefore, the petition is dismissed. Record of the case together with copy of this order be sent to the learned Inquiry Magistrate for proceeding in the case in accordance with law. Parties are directed to cause their appearance before the Inquiry Magistrate on 15.5.2003.