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2018 DIGILAW 438 (CAL)

Sabyasachi Sengupta v. Subhanka Sengupta (Das)

2018-06-25

JAY SENGUPTA

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JUDGMENT : Jay Sengupta, J. 1. In this case, the husband/petitioner is challenging the affirmation by the revisional Court of the grant of interim maintenance of Rs. 6000/- per month to the wife/opposite party directed to be paid from the date of application. 2. The learned Advocate appearing on behalf of the petitioner submits that the learned Courts below failed to appreciate that although the petitioner’s gross salary increased later on, earlier it used to be much less. Referring to the salary slip for September 2012, he contends that the petitioner was earning about Rs. 16253.00/- as gross salary per month then and the net pay was even less. Therefore, it was absolutely unfair to grant Rs. 6000/- per month from the date of application as it becomes much more than even 1/3rd, the maximum fraction of income that is usually granted as maintenance. 3. The learned Advocate for the petitioner further submits that the wife is not at all entitled to any maintenance as she had left the matrimonial home on her own. 4. On the other hand, the learned Advocate for the wife/opposite party submits that an order of interim maintenance is not revisable in view of Section 397(2) of the Code as the same is an interlocutory order. He also submits that this is a second revision and therefore, barred under Section 397(3), of the Code. 5. The learned Advocate for the opposite party denies that the wife had left the matrimonial on her own. He submits that the petitioner is a Government employee and earns a handsome salary. He further contends that the learned Courts below were justified in granting maintenance form the date of application. Only the wife would know how she survived this long. 6. I have heard the submissions of the learned Advocates of both the parties, have perused the judgments of the learned Courts below and have gone through the revision petition. 7. In Madhu Limaye vs State of Maharashtra, 1978 SCC (Cri) 10, the Hon’ble Apex Court held that: “13. In S. Kuppuswami Rao V. The King Kania, C. J. delivering the judgment of the Court has referred to some English decisions at pages 185 and 186. 7. In Madhu Limaye vs State of Maharashtra, 1978 SCC (Cri) 10, the Hon’ble Apex Court held that: “13. In S. Kuppuswami Rao V. The King Kania, C. J. delivering the judgment of the Court has referred to some English decisions at pages 185 and 186. Lord Esher M.R said in Salaman V. Warner : If their decision, whichever way it is given, will, if it stands, finally dispose of the matter in dispute, I think that for the purposes of these rules it is final. On the other hand, if their decision, if given in one way, will finally dispose of the matter in dispute but, if given in the other, will allow the action to go on, then I think it is not final, but interlocutory. To the same effect are the observations quoted from the judgments of Fry L. J. and Lopes L. J. Applying the said test, almost on facts similar to the ones in the instant case, it was held that the order in revision passed by the High Court [at that time there was no bar like Section 397(2)] was not a “final order” within the meaning of Section 205(1) of the Government of India Act, 1935. It is to be noticed that the test laid down therein was that if the objection of the accused succeeded, the proceeding could have ended but not vice versa. The order can be said to be a final order only if, in either event, the action will be determined. In our opinion, if this strict test were to be applied in interpreting the words “interlocutory order” occurring in Section 397(2), then the order taking cognizance of an offence by a Court, whether it is so done illegally or without jurisdiction, will not be a final order and hence will be an interlocutory one. Even so, as we have said above, the inherent power of the High Court can be invoked for quashing such a criminal proceeding. But in our judgment such an interpretation and the universal application of the principle that what is not a final order must be an interlocutory order is neither warranted not justified. If it were so it will render almost nugatory the revisional power of the Sessions Court or the High Court conferred on it by Section 397(1). But in our judgment such an interpretation and the universal application of the principle that what is not a final order must be an interlocutory order is neither warranted not justified. If it were so it will render almost nugatory the revisional power of the Sessions Court or the High Court conferred on it by Section 397(1). On such a strict interpretation, only those orders would e revisable which are orders passed on the final determination of the action but are not appealable under Chapter XXIX of the Code. This does not seem to be the intention of the Legislature when it retained the revisional power of the High Court in terms identical to the one in the 1898 Code. In what cases then the High Court will examine the legality or the propriety of an order or the legality of any proceeding of an inferior Criminal Court? Is it circumscribed to examine only such proceeding which is brought for its examination after the final determination and wherein no appeal lies? Such cases will be very few and far between. It has been pointed out repeatedly, vide for example, The River Wear Commissioners V. William Adamson and R.M.D Chamarbaugwalla V. The Union of India that although the words occurring in a particular statute are plain and unambiguous, they have to be interpreted in a manner which would fit in the context of the other provisions of the statute and bring about the real intention of the Legislature. On the one hand, the Legislature kept intact the revisional power of the High Court and, on the other, it put a bar on the exercise of that power in relation to any interlocutory order. In such a situation it appears to us that the real intention of the Legislature was not to equate the expression “interlocutory order” as invariably being converse of the words “final order”. There may be an order passed during the course of a proceeding which may not be final in the sense noticed in Kuppuswami’s case (supra), but, yet it may not be an interlocutory order – pure or simple. Some kinds of order may fall in between the two. By a rule of harmonious construction, we think that the bar in sub-section (2) of Section 397 is not meant to be attached to such kinds of intermediate orders. Some kinds of order may fall in between the two. By a rule of harmonious construction, we think that the bar in sub-section (2) of Section 397 is not meant to be attached to such kinds of intermediate orders. They may not be final orders for the purposes of Article 134 of the Constitution, yet it would not be correct to characterise them as merely interlocutory orders within the meaning of Section 397(2). It is neither advisable, nor possible, to make a catalogue of orders to demonstrate which kinds of orders would be merely, purely or simply interlocutory and which kinds of orders would be final, and then to prepare an exhaustive list of those types of orders which will fall in between the two. The first two kinds are well-known and can be culled out from many decided cases. We may, however, indicate that the type of order with which we are concerned in this case, even though it may not be final in one sense, is surely not interlocutory so as to attract the bar of sub-section (2) of Section 397. In our opinion it must be taken to be an order of the type falling in the middle course.” “17. Before we conclude we may point out an obvious, almost insurmountable, difficulty in the way of applying literally the test laid down in Kuppuswami Rao’s case and in holding that an order of the kind under consideration being not a final order must necessarily be an interlocutory one. If a complainant is dismissed under Section 203 or under Section 204(4), or the Court holds the proceeding to be void or discharges the accused, a revision to the High Court at the instance of the complainant or the prosecutor would be competent, otherwise it will make Section 398 of the new Code otiose. Does it stand to reason, then, that an accused will have no remedy to move the High Court in revision or invoke its inherent power or otherwise and which is fit to be quashed on the fact of it? The legislature left the power to order further inquiry intact in Section 398. Is it not, then, in consonance with the sense of justice to leave intact the remedy of the accused to move the High Court for setting aside the order adversely made against him in similar circumstances and to quash the proceeding? The legislature left the power to order further inquiry intact in Section 398. Is it not, then, in consonance with the sense of justice to leave intact the remedy of the accused to move the High Court for setting aside the order adversely made against him in similar circumstances and to quash the proceeding? The answer must be given in favour of the just and reasonable view expressed by us above.” 8. True, an order granting interim maintenance is an order passed at an intermediate stage. One would argue that by such an order a person would have to part with his money finally and for good, although in some particular measure. Such parting is quite final so far as that person is concerned and so far as that stage is concerned. 9. It is quite well settled, as discussed earlier, that there may exist an order which is neither final nor interlocutory. If such an order partakes of more the characters of a final order, the same may not be treated as an interlocutory order for the purpose of Section 397(2) of the Code. An order of interim maintenance is an archetype of such an intermediate order. 10. In any event, section 397(2) is not a bar to the exercise of inherent powers of the High Court under section 482 of the Code in challenging an order, which may be deemed to be an interlocutory order. 11. As regards the question of second revision, in Krishnan & Anr Vs. Krishnaveni & Anr, 1977 SCC (Cri) 544, the Hon’ble Supreme Court was of the view that such a second challenge can be maintained, albeit in exceptional cases, since inherent powers are preserved in the High Court under Section 482 of the Code. 12. On merits, I find that the amount fixed as interim maintenance is quite fair. In such cases, only a prima facie view is to be taken of the facts and evidence. 13. The prime issue, in my view, is whether such sum can be granted as interim maintenance from the date of application when at a prior date, the husband used to allegedly earn less. In this context, one has to refer to the concept of present value of an earlier sum, which would have been payable earlier had the proceeding become over at an earlier date. In this context, one has to refer to the concept of present value of an earlier sum, which would have been payable earlier had the proceeding become over at an earlier date. This present value of such earlier sum could be arrived at only by adding normal interest on such sum. If such a just calculation is thought of, such present value may fairly be granted as interim maintenance from an earlier date as in the present case. In fact, the very concept of grant of maintenance from the date of application seems to implicitly take into account this concept of present value of an earlier sum. 14. One thing is apparent that the learned Magistrate erred in first mentioning that maintenance allowance should be paid from the date of order and subsequently, ordering it from the date of application. But, there are several relevant aspects emanating from the materials on record including the husband’s income and the standing of the couple in the society, which warrant payment of maintenance form the date of application. Of course, if any payment of interim maintenance or interim monetary relief under the Protection of Women from Domestic Violence Act has already been made during such period i.e, after the date of application in this case, the same is to be adjusted with the amount that would accrue herein as arrears of interim maintenance pursuant to the impugned order. 15. In view of the above, I uphold the revisional order and dismiss the present revisional application with the foregoing observations. There shall be no order as to costs. 16. Urgent photostat certified copy is to be supplied to the parties, it applied for, upon usual undertakings.