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2003 DIGILAW 372 (JK)

Manzoor Ahmad Shah v. Sameena

2003-11-28

SYED BASHIR-UD-DIN

body2003
In proceedings u/s 488 Cr.P.C No. 2 of 2002 on the file of 3rd Addl. Munsiff, Judicial Magistrate Srinagar, an application for interim maintenance No. 8 of 2002, was moved by Sameena on her behalf and on behalf of her minor son Manzoor Ahmad, against respondent her husband and the wards father. In maintenance proceedings, the evidence of petitioner is in pipe-line. However, interim application has been disposed of by order dated 26.8.2002, where under interim monthly maintenance allowance is allowed in aggregate Rs. 800/-(Rs. 400/-each to wife and son) from 5.3.2002, the date of application, with attached condition that `in case of failure to deposit the maintenance monthly, Rs. 100/- is to be levied on the aggregate amount of maintenance. This order has been subject of revision proceedings before 2nd Addl.District and Sessions Judge, Srinagar, to the extent of interim maintenance to wife and levy portion of the order. 2. The Court of 2nd Addl.D&S Judge has made a reference recommending setting aside of the impugned order to the extent of interim maintenance to the wife and ordered levy on the maintenance amount. 3. Heard. Preliminary objections have been raised with regard to award of interim maintenance in absence of any express provision under section 488 Cr.P.C. thereto and to reviseability of the interim maintenance order in the face of provision of section 435(4)(a) Cr.P.C creating a bar to revision against an interim order. However, both objections are over-ruled, as neither objection is sustainable under law. 4. It is settled law that while dealing with application under section 488 Cr.P.C, court can grant interim maintenance (See Smt. Savitri v. Govind Singh Rawat (AIR 1966 SC: 984) though there is laxion of cases which hardly need to be reproduced here. 5. It is also settled that interim maintenance is a matter quite separate from the main maintenance matter, where rights of parties are affected and decided finally in respect of award of interim maintenance and in that view of the matter such interim maintenance order can not be called as inter-locutory order so as to fall within the bar created by Section 435(4)(a) Cr.P.C. 6. Perusal of record shows that the maintenance application is moved with allegation that Sameena has been turned out from the matrimonial house. She could not live with her husband because of latters cruel treatment, misconduct and misbehaviour through these allegations are contested by the husband. Perusal of record shows that the maintenance application is moved with allegation that Sameena has been turned out from the matrimonial house. She could not live with her husband because of latters cruel treatment, misconduct and misbehaviour through these allegations are contested by the husband. The husband has a counter case that Sameena has left his house of her own. The interim maintenance is also claimed almost on the grounds which are para-materia with the gorunds taken in the main application. the husband, revision petitioner, has resisted the maintenance claim on the ground that he in fact is subjected to ill treatment by Sameena who is guilty of abusing him. These contested pleas are to be gone into and facts determined on inquiry in main proceedings. The proceedings are at the stage of evidence. The petitioner has tendered her statement and is leading evidence in support of the application. 7. The question, whether the offer made by him to maintain her if she lives with him, is genuine and whether wife on her part has refused the offer and the reasons/grounds therefore, are questions, which have to be examined and detrmined on material and evidence led by the parties. At the initial stage having regard to the allegation made in the application, statement rendered in evidence by the petitioner the wife and the statement of witnesses produced by her and in particular when respondent is yet to lead evidence, it cannot be said that she has disentitled herself to interim maintenance from her husband as she has no sufficient cause to refuse to live with her husband. The observations of the court of reference on that count are not based on record. The question of sufficiency of reasons for the wife to refuse to live with her husband and the genuineness of such offer by husband are matters of proof. Merely because such a defence is taken in 488 Cr.P.C, proceedings, interim maintenance, pending adjudication of main maintenance matter, cannot be refused. At the incohate stage of the proceedings when evidence is yet to be led by husband, refusal to live with husband without sufficient reason, as defence to interim maintenance action cannot be presumed. It is a matter of proof. At the incohate stage of the proceedings when evidence is yet to be led by husband, refusal to live with husband without sufficient reason, as defence to interim maintenance action cannot be presumed. It is a matter of proof. The revisional court/court of reference has made this `plank of defence, as basis to recommend quashment of the interim maintenance order so far it relates to wife, which recommendation obviously is not to hold the ground. Apart from what is stated above, it should be also seen from record that petitioner wife has also made offer to live with the husband in case he mends his ways and is prepared to treat her well.This aspect of the matter cannot be also lost sight of. Whether this counter offer is genuine or not is again a matter of evidence and proof. Both husband and wife have put forth counter offers of their willingness to reside with each other, on conditions, which may or may not be true and even bonafide. 8. It is the duty of the court to ensure, that the applicant gets sufficient interim maintenance from the defaulting party so that she or he can survive and sustain himself or herself during the pendency of main maintenance proceedings. It is open to court to pass interim orders to facilitate the final disposal of the main proceedings.So long the petitioner is in distress and unable to maintain herself/ and the Magistrate in his discretion, comes to the conclusion that there is immediate necessity to grant interim maintenance, the court is under a legal mandate to grant interim maintenance in such a situation. 9. Having gone through the record, it appears that the Magistrate is alive to all the aspects of the case having a bearing on the award of interim maintenance, namely, the neglect or refusal to maintain wife and children, their inability to maintain themselves and passing of order of interim monthly maintenance allowance informed of reasons and prima facie requirement for such allowance in the context of applicants needs and income and earning capacity of the non applicant. It is seen that the award of interim maintenance to wife is within para-meters of law. The regularity of interim maintenance proceedings and correctness and legality of the order is not vitiated. It is seen that the award of interim maintenance to wife is within para-meters of law. The regularity of interim maintenance proceedings and correctness and legality of the order is not vitiated. However, it is seen that the Magistrate, while awarding interim maintenance, has also passed an order that in case respondents fail to deposit the amount, then in that case Rs. 100 shall be levied on the aggregate amount. If by this the Magistrate means to impose fine or penalty in the event of non-payment of the awarded interim maintenance, then it cannot be done, in as much as such direction falls beyond para-meters of law. So far as enforcement of order is concerned, there is clear provision which takes care of enforcement part. Question of enforcement can arise only after order is passed. Law does not envisage imposition of penalty in case of failure to pay the awarded maintenance except as provided by provisions of Section 488 Cr.P.C. The person can be sentenced for whole or part of each month unpaid remaining allowance, only after execution of the warrant for levying the amount in the manner provided for levying fines. The reference to this extent, is in order and so upheld. 10. In result, the reference is allowed only to the extent of imposition of levy and while upholding the impugned order of awarding interim maintenance to wife, the order to the above extent is quashed. Disposed of. Inform court below of this order. Send back the record.