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2017 DIGILAW 292 (KER)

EMMANUEL JEENUS v. JOMOL STEPHEN

2017-02-09

RAJA VIJAYARAGHAVAN V.

body2017
JUDGMENT : 1. The petitioner herein is the respondent in M.C. No.12 of 2016 on the file of the Family Court, Alappuzha. The aforesaid petition was filed under section 125(1) of the Code of Criminal Procedure (hereinafter referred to as 'the Code' for brevity) by the respondent herein, who is the wife of the petitioner. By order dated 19.9.2016, the petitioner was directed to pay interim maintenance to the respondent herein at the rate of Rs.3,000/- per month from the date of application. The aforesaid order is under challenge. 2. The learned counsel appearing for the petitioner would submit that the original petition was filed in the month of January, 2016 and along with the said application, an application seeking interim relief was filed. The petitioner filed objection in the month of April, 2016. However, when the matter came up for hearing on the ground that the counsel for the petitioner was not present, the learned Family Court without even taking note of the contentions advanced by the petitioner in his objection, has granted maintenance at the rate of Rs.3,000/- per mensem. According to the learned counsel, the petitioner was a bar man and he had challenged the entitlement as well as the quantum of maintenance in his objection filed. It is prayed that a direction be given to the learned Family Court to consider the matter afresh after giving him an opportunity. 3. The learned counsel appearing for the 2nd respondent on the other hand submits that the claim raised by the 2nd respondent was for a sum of Rs.10,000/- per mensem and in the interim application all that was claimed was Rs.5,000/-. Taking note of the facts and circumstances, the learned Family Court ordered only a sum of Rs.3,000/- per mensem, which cannot be said to be excessive. 4. It appears from the impugned order that when the application came up for hearing the counsel appearing for the petitioner was not ready for hearing. It is in the said circumstances that order was passed directing the petitioner to pay maintenance at the rate of Rs.3000/- per mensem. If the petitioner is having any grievance, he could have filed an application seeking modification or cancellation of the order. 5. It is in the said circumstances that order was passed directing the petitioner to pay maintenance at the rate of Rs.3000/- per mensem. If the petitioner is having any grievance, he could have filed an application seeking modification or cancellation of the order. 5. The Apex Court in Smt. Savithri V Govind Singh Rawat ( 1985 (4) SCC 337 ) while considering the question of grant of interim maintenance had occasion to observe 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. 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 authorized 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. 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. 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. 6. 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. 7. Having regard to the above, as observed by the Apex Court in Smt. Savithri (supra), I am of the view that an opportunity can be granted to the petitioner to raise all his contentions before the Family Court. If such an application is filed seeking modification/cancellation, the learned Family Court shall consider the contentions and pass appropriate orders, at any rate, within a period of 4 weeks from the date of production of a copy of this order. Till final orders are passed in the petition, the petitioner shall pay and continue to pay the amount ordered by the Family Court. The petitioner shall also deposit the accrued arrears, from the date of order, at the same rate. While considering the application of the petitioner herein, the Family Court shall not be bound by the quantum fixed as per the interim order. The amount, if any, deposited shall be released to the respondent on application. This petition is disposed of.