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2017 DIGILAW 1106 (GAU)

Rajesh Saha v. Jhuma Saha

2017-08-11

M.R.PATHAK

body2017
ORDER : 1. Heard Mr. Rupjit De, learned counsel for the petitioner and Mr. Kamesh Kr. Jain assisted Ms. Ranjita Deka, learned counsel for the sole respondent. 2. This Criminal Revision Petition is against the order dated 30.4.2016 passed by learned Judicial Magistrate 1st Class, Dhubri in Misc. Case No. 638/2015 wherein the learned Magistrate directed the petitioner to pay an amount of Rs. 5,000 per month to the respondent herein as interim maintenance from the date of his making appearance in the case, i.e. 26.11.2015 as well as the order dated 26.9.2016 passed by the said Magistrate in the Petition No. 686 dated 9.6.2016 of the petitioner rejecting to cancel his earlier order dated 30.4.2016 of interim maintenance payable by the petitioner to the sole respondent. 3. The marriage between the petitioner and the sole respondent was arranged by the families of both the petitioner and the respondent and it was solemnized on 4.6.2015 and thereafter the petitioner took the respondent to her matrimonial home on 5.6.2015. According, to the respondent as her in-laws were not happy with the furniture and other items that were provided to her by her parents at the time of marriage, the petitioner and his family members demanded Rs. 10 lakhs in cash and asked her to return the items that she had brought along to her matrimonial home. Since the respondent refused to comply with such demand, it is alleged that the petitioner and his family members started torturing her mentally. It is stated that on 19.6.2015, the petitioner took the respondent to her paternal home and leaving her there; he returned his home alone and started making illegal demands from the respondent in condition to take her back to her matrimonial home. It is stated that on 23.7.2015 when she went to her matrimonial home, her husband, i.e., the petitioner, her in-laws and other members of his family refused to take her back and in such a situation the respondent was compelled to return to her paternal house. She further stated that she was surprised to receive a photocopy of an unsigned “Deed of Mutual Agreement” on 14.8.2015 sent by the petitioner, but identified by one advocate, which contained that the respondent made an attempt to commit suicide. She further stated that she was surprised to receive a photocopy of an unsigned “Deed of Mutual Agreement” on 14.8.2015 sent by the petitioner, but identified by one advocate, which contained that the respondent made an attempt to commit suicide. Finding such false allegation in the copy of said deed of mutual agreement, the respondent apprehended that in case of resuming conjugal life with the petitioner, she would be killed. Since she was not provided with any maintenance and was passing her days in great hardship, as such, the respondent, as an applicant, on 12.10.2015, filed an application under section 125, Cr.P.C. before the Chief Judicial Magistrate, Dhubri being Misc. Case No. 638/2015 claiming monthly maintenance of Rs. 20,000 per month from her husband, the petitioner herein. 4. Along with her said application for maintenance under section 125, Cr.P.C. the respondent has also filed an application for interim maintenance of Rs. 20,000 per month from the petitioner. 5. The CJM, Dhubri transferred said maintenance application, i.e., Misc. Case No. 638/2015 under section 125, Cr.P.C. of the applicant-respondent as well as her application for interim maintenance to the court of learned Judicial Magistrate, 1st Class, Dhubri for disposal. 6. On receipt of notice, the petitioner entered appearance in the matter on 26.11.2015, submitted his written statement in said proceeding of maintenance under section 125, Cr.P.C. and also filed his written objection against the interim maintenance claimed by his wife, the sole respondent. 7. In his written objection regarding interim maintenance claimed by the respondent, the petitioner submitted that the respondent is suffering from white skin disease (leucoderma) and that she concealed the said fact while getting married with him and since, the marriage between him and the sole respondent was solemnized by foul play, their said marriage cannot be considered as a valid marriage and, therefore, the respondent is not entitled to any interim maintenance. The petitioner also submitted that respondent is earning sufficient amount as a private tutor to manage herself and also getting commission as an agent of Oriflamme Company, whereas the petitioner does not have any land of his own as contended by the respondent and that he earns only a meagre amount of Rs. 3,000 per month as a sales man in a private shop. 8. 3,000 per month as a sales man in a private shop. 8. The learned Trial Magistrate, i.e. JMFC, Dhubri after hearing the parties by the impugned order dated 30.4.2016 came to a conclusion that the petitioner has not denied the fact that the applicant-respondent is not his wife and that regarding the validity of the marriage between the petitioner and the respondent, the said court being not the proper forum, cannot decide the said issue in a proceeding under section 125, Cr.P.C. whereas, the petitioner can redress his said grievance before the proper court of law. The Magistrate considered that law is well settled that when the marriage is established, during the validity of the marriage maintenance should be awarded to the wife by her husband and the validity of marriage should be questioned or raised before a proper civil court, which has not been done by the petitioner in the present case and that it is accepted position that in a proceeding under section 125, Cr.P.C. regarding claim of maintenance by wife, the validity of marriage cannot be questioned by the husband. Learned Magistrate in the impugned order dated 30.4.2016 specified that in a maintenance proceeding under section 125, Cr.P.C. the object is not to punish a person but to prevent vagrancy by compelling those who can do so to support themselves and who have a moral claim to support since said section 125, Cr.P.C. has been enacted with special purpose and with the object of enabling discarded wife, helpless and deserted children and destitute parents to secure much needed relief. 9. The Trial Magistrate, by the impugned order dated 30.4.2016 while considering the interim maintenance payable by the petitioner to the respondent, came to a finding that petitioner was not willing to disclose his income though he is the best person to do so and as the marriage between both the parties was arranged and solemnized on 4.6.2015 and that the respondent is the legally married wife of the petitioner, considering the same he was directed to pay Rs. 5,000 per month to the respondent as an interim maintenance with effect from 26.11.2015, the date of his appearance in the case. 10. The petitioner subsequently on 9.6.2016 filed a petition being No. 686 before the Trial Magistrate to cancel the said order of interim maintenance dated 30.4.2016, which was objected by the respondent. 5,000 per month to the respondent as an interim maintenance with effect from 26.11.2015, the date of his appearance in the case. 10. The petitioner subsequently on 9.6.2016 filed a petition being No. 686 before the Trial Magistrate to cancel the said order of interim maintenance dated 30.4.2016, which was objected by the respondent. The said Magistrate after hearing the parties and on the basis of documents placed by the respondents and certificate dated 27.11.2015 issued by concerned Village Panchayat came to a finding that the petitioner is having landed property over which he has an industry with eight numbers of engaged workers of which he is the proprietor. In view of the judgment of the Hon’ble Supreme Court, the Trial Magistrate came to the conclusion that even if the wife might have income, it is the duty of the husband to maintain her and that he cannot neglect or refuse to maintain her and considering all this learned Trial Magistrate by order dated 26.9.2016 rejected the said Petition No. 686 dated 9.6.2016 of the petitioner and rejected to cancel the order dated 30.4.2016 passed earlier directing him to pay Rs. 5,000 p.m. as interim maintenance to the respondent. 11. The petitioner being aggrieved with those two orders dated 30.4.2016 and 29.6.2016 passed by the JMFC, Dhubri preferred this revision petition. 12. Mr. Jain appearing on behalf of the sole respondent submitted that the order of interim maintenance of Rs. 5,000 payable by the petitioner to the respondent by order dated 30.4.2016 passed by the JMFC, Dhubri in Misc. case No. 638/2015 being an interim order only, this revision petition preferred by the petitioner is not maintainable. 13. At this stage, it is required to decide at first the maintainability of this Revision Petition and as to whether the order of interim maintenance under section 125, Cr.P.C. is an interlocutory order or not. 14. The Hon’ble Supreme Court have dealt the term interlocutory order at length in the cases of Amar Nath vs. State of Haryana, (1977) 4 SCC 137 , Madhu Limaye vs. State of Maharashtra, (1977) 4 SCC 551 and V.C. Shukla vs. State through CBI, AIR 1980 Supp SCC 92. 15. 14. The Hon’ble Supreme Court have dealt the term interlocutory order at length in the cases of Amar Nath vs. State of Haryana, (1977) 4 SCC 137 , Madhu Limaye vs. State of Maharashtra, (1977) 4 SCC 551 and V.C. Shukla vs. State through CBI, AIR 1980 Supp SCC 92. 15. In the case of V.C. Shukla, (supra), a four-judge Bench of the Hon’ble Supreme Court have held that:- “The term ‘interlocutory order’ used in section 397(2) of the Cr.P.C. relates to various stages of the trial, namely, appeal, inquiry, trial or any other proceeding. The object seems to be to cut down the delays in stages through which a criminal case passes before it culminates in an acquittal, discharge or conviction. Having regard to the very large ambit and range of the Code, the expression ‘interlocutory order’ would have to be given a broad meaning so as to achieve the object of the Act without disturbing or interfering with the fairness of the trial. The term ‘interlocutory order’ used in the Code of Criminal Procedure has to be given a very liberal construction in favour of the accused in order to ensure complete fairness of the trial because the bar contained in section 397(3) of the Code would apply to a variety of cases coming up before the courts not only being offences under the Penal Code but under numerous Acts. The revisional power of the High Court or the Sessions Judge could be attracted if the order was not purely interlocutory but intermediate or quasi final. The same, however, could not be said of the Special Courts Act which was meant to cover only specified number of crimes and criminals and the objective attained was quickest dispatch and speediest disposal. In order to construe the term ‘interlocutory’ it has to be construed in contradistinction to or in contrast with a final order. In other words, the words ‘not a final order’ must necessarily mean an interlocutory order or an intermediate order. Thus, the expression ‘interlocutory order’ is to be understood and taken to mean converse of the term final order. An interlocutory order merely decides some point or matter essential to the progress of the suit or collateral to the issues sought but not a final decision or judgment on the matter in issue. Thus, the expression ‘interlocutory order’ is to be understood and taken to mean converse of the term final order. An interlocutory order merely decides some point or matter essential to the progress of the suit or collateral to the issues sought but not a final decision or judgment on the matter in issue. An intermediate order is one which is made between the commencement of an action and the entry of the judgment.” 16. In the case of Bhagwan Dutt vs. Kamla Devi, (1975) 2 SCC 386 , a three-judge Bench of the Hon’ble Supreme Court in a case dealing with section 488 of the Cr.P.C. 1898 and comparison to section 125, Cr.P.C. 1973 have held that:- “The provisions of said sections are not intended to provide for a full and final determination of the status and personal rights of the parties, the jurisdiction conferred by the section on the Magistrate is more in the nature of preventive rather than a remedial jurisdiction, it is certainly not punitive. The object of these provisions being to prevent vagrancy and destitution, the Magistrate has to find out as to what is required by the wife to maintain a standard of living which is neither luxurious nor penurious, but is modestly consistent with the status of the family. The provisions of said sections intended to serve a social purpose. It provides machinery for summary enforcement of the moral obligations of a man towards his wife and children so that they may not, out of sheer destitution, become a hazard to the well-being of orderly society.” 17. The Hon’ble Supreme Court in the case of Savitri vs. Govind Singh Rawat, (1985) 4 SCC 337 decided the issue of interim maintenance under section 125, Cr.P.C. and observed that:- “.........It is the duty of the court to interpret the provisions in Chapter IX of the Code in such a way that the construction placed on them would not defeat the very object of the legislation. In the absence of any express prohibition, it is appropriate to construe the provisions in Chapter IX as conferring an implied power on the Magistrate to direct the person against whom an application is made under section 125 of the Code to pay some reasonable sum by way of maintenance to the applicant pending final disposal of the application. In the absence of any express prohibition, it is appropriate to construe the provisions in Chapter IX as conferring an implied power on the Magistrate to direct the person against whom an application is made under section 125 of the Code to pay some reasonable sum by way of maintenance to the applicant pending final disposal of the application. It is quite common that applications made under section 125 of the Code also take several months for being disposed of finally. In order to enjoy the fruits of the proceedings under section 125, the applicant should be alive till the date of the final order and that the applicant can do in a large number of cases only if an order for payment of interim maintenance is passed by the court. Every court must be deemed to possess by necessary intendment all such powers as are necessary to make its orders effective. This principle is embodied in the maxim “ubi aliquid conceditur, conceditur et id sine quo res ipsa esse non potest” (where anything is conceded, there is conceded also anything without which the thing itself cannot exist). [Vide Earl Jowitt's Dictionary of English Law, 1959 Edn. p. 1797] Whenever anything is required to be done by law and it is found impossible to do that thing unless something not authorised in express terms be also done then that something else will be supplied by necessary intendment. Such a construction though it may not always be admissible in the present case, however, would advance the object of the legislation under consideration. A contrary view is likely to result in grave hardship to the applicant, who may have no means to subsist until the final order is passed. There is no room for the apprehension that the recognition of such implied power would lead to the passing of interim orders in a large number of cases where the liability to pay maintenance may not exist. It is quite possible that such contingency may arise in a few cases but the prejudice caused thereby to the person against whom it is made is minimal as it can be set right quickly after hearing both the parties. It is quite possible that such contingency may arise in a few cases but the prejudice caused thereby to the person against whom it is made is minimal as it can be set right quickly after hearing both the parties. The Magistrate may, however, insist upon an affidavit being 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 prima facie case for making such an order. Such an order may also be made in an appropriate case ex parte pending service of notice of the application subject to any modification or even an order of cancellation that may be passed offer the respondent is heard. If a civil court can pass such interim orders on affidavits, there is no reason why a Magistrate should not rely on them for the purpose of issuing directions regarding payment of interim maintenance. The affidavit may be treated as supplying prima facie proof of the case of the applicant. If the allegations in the application or the affidavit are not true, it is always open to the person against whom such an order is made to show that the order is unsustainable. Having regard to the nature of the jurisdiction exercised by a Magistrate under section 125 of the Code, we feel that the said provision should be interpreted as conferring power by necessary implication on the Magistrate to pass an order directing a person against whom an application is made under it to pay a reasonable sum by way of interim maintenance subject to the other conditions referred to therein pending final disposal of the application. In taking this view we have also taken note of the provisions of section 7(2)(a) of the Family Courts Act, 1984 (Act 66 of 1984) passed recently by Parliament proposing to transfer the jurisdiction exercisable by Magistrates under section 125 of the Code to the Family Courts constituted under the said Act.” 18. In taking this view we have also taken note of the provisions of section 7(2)(a) of the Family Courts Act, 1984 (Act 66 of 1984) passed recently by Parliament proposing to transfer the jurisdiction exercisable by Magistrates under section 125 of the Code to the Family Courts constituted under the said Act.” 18. After the said judgment of the Hon’ble Apex Court in the case of Savitri (supra), the Parliament by the Act 50 of 2001 amended the provisions of section 125, Cr.P.C. 1973, which came in to force w.e.f. 24.9.2001 and the ‘Object and Reason’ of said amendment provides that:- “It has been observed that an applicant, after filing application in a court under section 125 of the Code of Criminal Procedure, 1973, has to wait for several years for getting relief from the court. It is, therefore, felt that express provisions should be made in the said Code for interim maintenance allowance to the aggrieved person under said section 125 of the Code. Accordingly, it is proposed that during the pendency of the proceedings, the Magistrate may order payment of interim maintenance allowance and such expenses of the proceedings as the Magistrate considers reasonable, to the aggrieved person. It is also proposed that the order be made ordinarily within sixty days from the date of the service of the notice.” 19. Accordingly, after the said 2001 amendment, the Magistrate in a proceeding under section 125, Cr.P.C. 1973 is authorised to grant interim maintenance allowance, which is only a provisional arrangement, considering the fact that section 125, Cr.P.C. is a measure of social legislation and it has to be construed liberally for the welfare and benefit of wife, minor children and parents, who are unable to maintain themselves. 20. In the present case, the petitioner appeared before the learned Trial Magistrate, contested the matter regarding the claim of interim maintenance payable to the respondent stating that she has sufficient income for her livelihood. But he did not place any material before the Trial Magistrate in that regard to consider the said aspect. 20. In the present case, the petitioner appeared before the learned Trial Magistrate, contested the matter regarding the claim of interim maintenance payable to the respondent stating that she has sufficient income for her livelihood. But he did not place any material before the Trial Magistrate in that regard to consider the said aspect. Even in his application for cancellation of the impugned order dated 30.4.2016, the petitioner failed to place anything in that aspect before the Trial Magistrate; rather, it was found by the said Magistrate that the petitioner is having an Industry over his own plot of land of which he is the proprietor, where he have engaged eight workers for his factory work. 21. Chapter IX of the Cr.P.C. 1973, containing sections 125 to 128, relates to “Order for Maintenance of Wives, Children and Parents” and it is settled that those provisions have been incorporated in the Code with the intent to fulfill a social purpose, compelling person having sufficient means to maintain their wife, children, parents, as the case may be, who are unable to maintain themselves, so as to prevent vagrancy and destitution. The order of interim maintenance under section 125, Cr.P.C. is purely an interlocutory order as by such interim order of maintenance, the proceeding for maintenance is not terminated and the said proceeding goes on till determination of entitlement as well as the amount of maintenance finally payable by the person to the applicant. 22. Moreover, section 125, Cr.P.C. as settled is not for determining the status and personal rights of the parties and as seen from the judgments of the Hon’ble Apex Court in the cases of Bhagwan Dutt and Savitri (supra), the jurisdiction conferred on the Magistrate under section 125, Cr.P.C. is preventive in nature and not punitive. Further, as settled by the Hon’ble Apex Court, after any such order of interim maintenance, the Magistrate is also empowered to modify such order of interim maintenance and also has the power to cancel the same passed earlier. This makes clear that such order of interim maintenance of the Magistrate under section 125, Cr.P.C. does not decide the entitlement of maintenance or the amount of maintenance finally payable by the person from whom such maintenance is claimed. 23. This makes clear that such order of interim maintenance of the Magistrate under section 125, Cr.P.C. does not decide the entitlement of maintenance or the amount of maintenance finally payable by the person from whom such maintenance is claimed. 23. For the reasons stated above and considering the entire aspect of the matter, this court is of the view that the order of granting interim maintenance by a Magistrate under section 125, Cr.P.C. is purely an interlocutory order, since the trial with regard to the issue of maintenance and its amount still remains alive before the said Magistrate. 24. As such, revision petition against such an interim order of maintenance passed by the Magistrate under section 125, Cr.P.C. being purely an interlocutory order, is not maintainable. 25. Accordingly, this revision petition, being not maintainable, stands dismissed. 26. However, before parting with the case, the court expects that the application of the sole respondent-applicant for maintenance under section 125, Cr.P.C. shall be disposed of by the concerned Magistrate at the earliest. 27. Registry shall return the LCR along with a copy of this order to the court of learned Chief Judicial Magistrate, Dhubri forthwith.