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2017 DIGILAW 1021 (KER)

K. Hashim, Thiruvananthapuram v. R. Nisa

2017-07-12

B.SUDHEENDRA KUMAR

body2017
JUDGMENT : 1. The petitioner herein was directed by the court below to pay interim maintenance to the respondent herein without filing any application seeking for interim maintenance. Aggrieved by the said order, this O.P.(Crl.) has been filed. 2. Heard both sides. 3. It appears from Ext.P3 order that there was no application seeking for interim maintenance. Both the petitioner and the counter petitioner were present before the court on 24.3.2017. It is stated in the order impugned that the petitioner herein was intentionally delaying the matter and in the said circumstances, the court below directed the petitioner herein to pay interim maintenance at the rate of Rs.5,000/- to the first respondent, Rs.3,000/- to the second respondent and Rs.2,000/- to the third respondent. 4. The Apex Court in Savitri v. Govind Singh ( AIR 1986 SC 984 ) held that an order for interim maintenance could be granted even without any enabling provision in the Cr.P.C. The Apex court further held that even in such case, the Magistrate should insist upon an affidavit to be filed by or on behalf of the applicant concerned stating the grounds in support of the claim for interim maintenance to satisfy himself that there is a primafacie case for making such an order. The Apex Court in Savitri (supra) further observed that if the allegations in the affidavit are not true, it is always open to the person against whom such an order for maintenance is made to show that the order was unsustainable. This Court in Davis v. Thomas and another [2007(4) KHC 363], relied on the above said decision and held that an application is necessary to grant interim maintenance. However, after the amendment of Cr.P.C. in 2001, the provision is clear that there should be written application for interim maintenance. In view of the above reason, Ext.P3 order passed by the court below cannot be sustained. In the result, this O.P.(Crl.)stands allowed and Ext.P3 order stands quashed. The court below is directed to dispose of M.C. No.198 of 2016 in accordance with law, as expeditiously as possible and at any rate, within three months from the date of receipt of a copy of this judgment by the court below.