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2006 DIGILAW 765 (CAL)

A. PALANISWAMY v. ALAGAMMAL

2006-12-04

KISHORE KUMAR PRASAD

body2006
( 1 ) THE Judgment of the Court was as follows : this is an application praying that the order dated 2. 11. 2006 made by the learned Session Judge, A and N Islands at Port Blair in Criminal revision No. 17 of 2005 directing the petitioner herein to go on paying Rs. 1,800/- per month collectively towards subsistence allowance for both the o. P. No. 1 herein and her minor female issue, O. P. No. 2 herein till final disposal of the application for interim maintenance on merit afresh in miscellaneous Case No. 107 of 2005 pending in the Court of learned Judicial magistrate First Class-II, Port Blair be set aside. The application is made under Section 482 of the Cr. P. C. ( 2 ) ELABORATE arguments were advanced by the learned Counsels appearing on behalf of the parties in support of their respective contentions on the merits of the maintenance proceedings. It is not necessary nor is it desirable to enter into the merits of the case and express any opinion at this stage, which may prejudice either of the parties at the final hearing of the maintenance proceeding. ( 3 ) IT is an admitted position that the O. P. No. 1 is the legally married wife of the petitioner herein and their marriage was solemnized according to Hindu Marriage Act, 1955. In para 7 of the application filed on behalf of the petitioner herein, there is a clear averment to the effect that O. P. No. 1 resided with the petitioner at Port Blair from 1978 to 1981 and out of said wedlock one child was born in the year 1980. ( 4 ) LEARNED Counsel for the petitioner argued that the conditional order of the learned Session Judge directing the petitioner to pay Rs. 1,800/-per month collectively as subsistence allowances for both of the O. P. No. 1 and O. P. No. 2 in the fact and circumstances of the case was clearly erroneous and as such the same is liable to be set aside. On behalf of the opposite parties, it was contended that the order impugned was perfectly correct and the learned Court below committed no error in passing the impugned order in exercise of its discretion under the law. ( 5 ) SECTION 482 of the Cr. On behalf of the opposite parties, it was contended that the order impugned was perfectly correct and the learned Court below committed no error in passing the impugned order in exercise of its discretion under the law. ( 5 ) SECTION 482 of the Cr. P. C. confers a separate and independent power of the High Court alone to pass orders ex-debito justitiae in case where grave substantial injustice has been done or where the process of the Court has been seriously abused. It is well settled that the inherent powers under Section 482 of Cr. P. C. can be exercised only when no other remedy is available to the litigant, and not where a specific remedy is provided by the statute. Further, the power being an extraordinary one, it has to be exercised sparingly and only in appropriate cases. In general words, the High Court's power under Section 482 of Cr. P. C. is a power to keep sub-ordinate Courts within the bounds of their authority to see that they do it in a legal manner. High Court cannot, in the exercise of its inherent jurisdiction under Section 482 of the Cr. P. C. set aside the order of the learned Session Judge passed in the revision petition. This will in another way amount to permit the applicant to take advantage of a second revision against the order of the learned Session Judge, which is barred by the provision of Section 397 (3) of the Cr. P. C. ( 6 ) IN the touchstone of the aforesaid ratio, this Court once again scrutinized the materials. There is no dispute with regard to the marriage of the petitioner with O. P. No. 1 and so also with regard tp birth of one child at port Blair in the year 1980 out of the said wedlock. There is no controversy that marriage between the petitioner herein and O. P. No. 1 herein is still subsisting. Whether the O. P. No. 1 left the house of the petitioner in the year 1981 at her own accord along with her minor child and further whether there were sufficient reasons for the O. P. No. 1 to refuse to stay with the petitioner are not the subject matter of consideration while disposing an application for interim maintenance in a proceeding under Section 125 of cr. P. C. Over the dispute in respect of paternity of O. P. No. 2 herein, the law is that there is a presumption in favour of the legitimacy in respect of the birth of a child born during the subsistence of marriage unless non-excess between two spouses is proved and the standard of proof required in such cases is the same which obtains in a criminal trial, namely, proof beyond all reasonable doubt. In other words, the laws is very jealous and zealous in vouchsafing the fact that a child born in the circumstances laid down in the said provisions of law (Section 112 of Evidence Act) ought not to be illegitimised or bastardised on frivolous and weak evidence with regard to the proof of non-access and the Courts are duty bound to see that the evidence adduced before them has made them morally certain the factum of non-access inter se the spouses has been proved. ( 7 ) THERE is no quarrel with the proposition of law that the Court has power or jurisdiction to grant interim maintenance during the pendency of the proceedings under Section 125 of the Cr. P. C. If the person who seeks maintenance under Section 125 of the Cr. P. C. is unable to maintain her or him during the pendency of the proceeding under Section 125 of the Cr. P. C. and due to neglect of the defaulting party the very survival of that person has become difficult, it is not only that the concerned Court has power or jurisdiction to award interim maintenance, but also it is the duty of the Court to ensure that during the pendency of the main proceedings, the applicant gets sufficient interim maintenance from the defaulting party so that she/he could survive and sustain herself or himself during the pendency of the said proceedings. It is always open to the Court to pass the interim orders to facilitate the final disposal of the main proceedings. It is also settled proposition of law that every procedure is permitted unless it is forbidden by law and the procedure is always designated to subserve the ends of justice and it always aims at rendering the substantial justice. It may be observed that the litigants look at the Court for getting justice and not for perpetuating injustice. It is also settled proposition of law that every procedure is permitted unless it is forbidden by law and the procedure is always designated to subserve the ends of justice and it always aims at rendering the substantial justice. It may be observed that the litigants look at the Court for getting justice and not for perpetuating injustice. Grant of interim maintenance allowance is aimed at preserving the existence of an individual who is not in a position to support himself or herself. ( 8 ) ON the face of the order of the learned Session judge, if anything can be said is that the learned Session Judge had only erred in law in granting a joint interim award of maintenance to the O. P. No. 1 herein and her minor female child O. P. No. 2 herein. A joint award is not within the contemplation of Section 125 of Cr. P. C. A joint award also is against the scheme and intendments of Section 127 of the Cr. P. C. which provides for an alteration in the allowance, according to altered circumstances, which may not always be the same but may vary for the wife and the child. In hazara Singh v. Mt. Sant Kaur, AIR 1957 Pepsue 24, a joint award to the wife and two children at Rs. 25/- per mensem, was held to be illegal ; nevertheless, in revision, the High Court invoked its inherent power under section 561-A of the old Cr. P. C. and apportioned the award between the wife and the children fixing the rates at Rs. 15/- for the wife and at Rs. 5/-for each of the children. ( 9 ) IT seems to me that by invoking the inherent power, the necessary amendments in the order can be made and the irregularity in granting a joint award of interim maintenance can be removed. Accordingly, I do not hesitate to do so, in the circumstances of the case. I think that the joint award of interim maintenance of Rs. 1,800/- on the totality of the facts and circumstances of the case may be apportioned at the rate of Rs. 1,000/-and Rs. 800/- per month between the wife O. P. No. 1 and her minor child o. P. No. 2 herein. I think that the joint award of interim maintenance of Rs. 1,800/- on the totality of the facts and circumstances of the case may be apportioned at the rate of Rs. 1,000/-and Rs. 800/- per month between the wife O. P. No. 1 and her minor child o. P. No. 2 herein. ( 10 ) THUS, the petitioner shall pay interim maintenance from the date of filing the petition for interim maintenance to the date of the order passed by the trial Magistrate after rehearing the parties on the merits as directed by the learned Session Judge, at Rs. 1,000/- per mensem to O. P. No. 1, the wife and at Rs. 800/- per mensem to the child, O. P. No. 2. ( 11 ) THE application under Section 482 of the Cr. P. C. is accordingly disposed of with the direction upon the learned Magistrate to dispose of the application for interim maintenance in accordance with law within a period of two months from the date of communication of this order. ( 12 ) THERE will be no order as to costs of this application. ( 13 ) ANY observation, made by this Court is tentative and for the purpose of disposal of the instant application and will not prejudice the interest of either party and the order passed by this Court will not influence the learned Court below at the time of effective adjudication of the matter in dispute on merits. ( 14 ) LET a copy of this judgement be sent to learned Session Judge, a and N Islands, Port Blair for information and necessary action. Apart from him, let a copy of this judgement be also sent to the Court of the concerned learned Magistrate for due compliance of the direction as indicated above.