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2017 DIGILAW 158 (KER)

SENTHIL KUMAR M. S. v. SANGEETHA. C. S.

2017-01-19

RAJA VIJAYARAGHAVAN V.

body2017
JUDGMENT : 1. Exhibit P2 order passed by the learned Family Court, Ernakulam granting interim maintenance to the respondents is under challenge in this petition. 2. The order which was passed on 13.12.2016 reads as follows :- "Heard. Respondent is directed to pay Rs. 10,000/ + Rs. 8000/ to 2nd and 3rd petitioners as interim maintenance. Comply the order. Call on 13.01.2017." 3. The petition was filed on 14.10.2016 by the respondents herein under section 125 (1) of the Code of Criminal Procedure seeking maintenance for the wife and two minor children. The case was posted for objection to 13.12.2016. The petitioner had filed a detailed objection on 14.10.2016, a copy of which is produced as Exhibit P1. Among other contentions, the petitioner had also asserted that he was a disabled person with a non functional Right hand due to compartment syndrome and triple nerve paralysis. A doctor has assessed 65% as the permanent physical disability (whole body). However, it appears that the learned Family Court has passed the impugned order without delving into the contentions raised by the parties. 4. Heard the submissions advanced. 5. Section 125 of the code of criminal procedure is designed to prevent vagrancy and destitution and provides a summary and speedy remedy. It has a social purpose to fulfill and in arriving at any finding in relation to an application there under the courts must look to the substance than to the form. Strict technicalities of pleading and proof are to be avoided and the Court must make a realistic approach to the material on record so that the purpose of the provision is not frustrated. A husband having sufficient means is under a statutory liability to maintain his wife. The proceedings under the chapter are judicial proceedings in their nature and therefore must not be conducted as if they are ministerial matters. The orders passed by the court should be on the basis of a distinct finding of fact and should not be vague or arbitrary. 6. The provisions of the Code enable the Court below to grant interim maintenance in appropriate cases. The 2nd proviso to Section 125 (1) enable the Court to order the person who refuses to pay maintenance to make a monthly allowance for the interim maintenance of his wife or such child and also the expenses for such proceedings which the Court considers reasonable. The 2nd proviso to Section 125 (1) enable the Court to order the person who refuses to pay maintenance to make a monthly allowance for the interim maintenance of his wife or such child and also the expenses for such proceedings which the Court considers reasonable. The 3rd proviso requires the Court to dispose the application for interim maintenance and expenses as far as may be within 60 days from the date of service of the notice of such application to such person. Sub-section (4) of section 125 says that no wife shall be entitled to receive an allowance for the maintenance or the interim maintenance and expenses of proceeding, as the case may be, from her husband if she is living in adultery, or if without any sufficient reason, she refuses to live with her husband, or if they are living separately by mutual consent. 7. The power to order interim maintenance in an application under section 125 (1) of the Code of Criminal Procedure had come up for consideration before the Apex Court in Smt. Savithri V Govind Singh Rawat ( 1985 (4) SCC 337 ). It was held in paragraph No. 3 of the judgment as follows :- In view of the foregoing it is the duty of the Court to interpret the provisions in Chap. 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 S. 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 S. 125 of the Code also take several months for being disposed of finally. In order to enjoy the fruits of the proceedings under S. 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. 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.) 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. 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 after 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. 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 S. 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 the pending final disposal of the application. In taking this view we have also taken note of the provisions of S. 7(2)(a) of the Family Courts Act, 1984 (Act No. 66 of 1984) passed recently by Parliament proposing to transfer the jurisdiction exercisable by Magistrates under S. 125 of the Code to the Family Courts constituted under the said Act. 8. What was held by the Apex Court was that the court before which an application seeking maintenance is filed has the power to direct the husband or the father, as the case may be, to pay some reasonable sum by way of maintenance pending final disposal of the application. In those cases where order is passed ex parte or without a proper hearing, an application for modification or cancellation can be filed by the respondent, which can be considered by the court and appropriate orders can be passed. 9. In the instant case, though the petitioner had entered appearance and had filed a detailed objection, his contentions have not been adverted to in the interim order. The petitioner has been directed to pay a total sum of Rs.18,000/- as maintenance. The materials produced would show that he is a person with 65% disability and he is depending on his father. The order passed by the learned family court should have at least reflected the matters which persuaded the Court to fix the quantum at Rs 18,000/-. 10. It has been held time and again by the Apex Court as well as this Court that reasons are the soul of orders. The order passed by the learned family court should have at least reflected the matters which persuaded the Court to fix the quantum at Rs 18,000/-. 10. It has been held time and again by the Apex Court as well as this Court that reasons are the soul of orders. Non - recording of reasons could lead to dual infirmities; firstly, it may cause prejudice to the affected party and secondly, more particularly, hamper the proper administration of justice. These principles are not only applicable to administrative or executive actions, but they apply with equal force and, in fact, with a greater degree of precision to judicial pronouncements. A judgment without reasons causes prejudice to the person against whom it is pronounced, as that litigant is unable to know the ground which weighed with the court in rejecting his claim and also causes impediments in his taking adequate and appropriate grounds before the higher court in the event of challenge to that judgment. I am of the view that even an interim order directing the payment of maintenance should reflect proper application of mind and also the materials which influenced the mind of the Court while passing the order. Though interim orders are to be passed on prima facie satisfaction and some amount of guess work is inevitable, the interim maintenance ordered should be commensurate with the claims raised by the petitioner and the counter claims raised by the respondents. The amount ordered should be commensurate and reasonable and cannot be fanciful. The Family Court is expected to consider the matter with utmost diligence and in a sensitive manner. 11. In the facts of the instant case, I do not deem it necessary to issue notice to the respondents and cause them inconvenience. It will not be in the interest of justice to subject the respondents herein to unwanted hardship due to no fault of theirs. As the order is non- speaking and cryptic, the same cannot be sustained. 12. I, therefore, direct the petitioner to move the Court below and move an application for modification as directed in Savithri (supra). To enable the petitioner to move the Family Court for modification, consequences flowing from the interim order shall be kept in abeyance for a period of two months. 12. I, therefore, direct the petitioner to move the Court below and move an application for modification as directed in Savithri (supra). To enable the petitioner to move the Family Court for modification, consequences flowing from the interim order shall be kept in abeyance for a period of two months. The Family Court shall grant sufficient opportunity to the parties and shall pass appropriate orders in the application seeking interim relief, in accordance with law, taking note of the contentions advanced. The said order shall be passed within 30 days lest the respondents be prejudiced in any manner. Till fresh orders are passed by the Family Court, the petitioner shall pay and continue to pay maintenance at the rate of Rs.4,000/- per mensem to the 1st respondent and Rs.3,000/- each per mensem to the respondents 2 and 3. Arrears, if any, shall also be deposited at this rate. The petition is disposed of with the above directions.