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2018 DIGILAW 823 (JK)

Ishwar Lal v. Bipna Devi

2018-10-23

SANJAY KUMAR GUPTA

body2018
JUDGMENT : 1. Through the medium of instant petition, the petitioners seeks quashment of the order dated 26th November, 2016 passed by the learned JMIC/Munsiff, Bhaderwah, by virtue of which he has allowed the application for grant of interim maintenance under Section 488 Cr. P.C and thereby directing the petitioner/respondent therein to pay Rs. 7000/- per month to the respondents as maintenance from the date of filing of this application till final disposal of the application and order dated 08th June, 2017, by virtue of which the Principal Sessions Judge, Bhaderwah has disposed of the Revision Petition. 2. The factual matrix of the case is that the petitioner was married with one-Chanchla Devi in the year 1981 and out of this wedlock, they have three daughters and a Son, namely, Angrezi Devi, Ugali Devi, Milka Devi and Vijay Kumar. Respondent No. 1-Bipna Devi was previously married with one-Prithvi Raj S/o Nand Lal R/o Ghati More, Tehsil and District Bhaderwah. Out of this wedlock, they have one male child, namely, Ajay Kumar. The marriage of respondent No. 1 with the said Prithvi Raj was dissolved in the year 1998. After the alleged dissolution of marriage, the respondent No. 1 was living with one-Deep Kumar S/o Kali Dass R/o Drainga, Tehsil Bhaderwah, District Doda for almost twelve years and as per the knowledge of the petitioner, the two children, i.e., respondent Nos. 2 and 3, namely, Seema Devi and Rahil Kumar were born out. 3. The story put forth by the respondent No. 1 is that she was married with petitioner in the year 1994, which is a concocted and self-styled story and has nothing to do with the petitioner. As a matter of fact, the respondent No. 1 is remotely related to the petitioner being daughter of matrimonial uncle of the petitioner (Mama). The marriage is alleged to have been contracted with the petitioner in the year 1994 and that too during the subsistence of marriage of both the petitioner and the respondent No. 1. Therefore, the application under Section 488 Cr. P.C was not maintainable because respondent No. 1 concealed all the facts and misleads the Court. She was not entitled to any maintenance during the subsistence of first marriage. 4. I have also gone through the order of the learned JMIC/Munsiff; Bhaderwah dated 26th November, 2016. 5. Therefore, the application under Section 488 Cr. P.C was not maintainable because respondent No. 1 concealed all the facts and misleads the Court. She was not entitled to any maintenance during the subsistence of first marriage. 4. I have also gone through the order of the learned JMIC/Munsiff; Bhaderwah dated 26th November, 2016. 5. From the perusal of the said order, it is evident that the respondents filed the application for grant of interim maintenance under Section 488 Cr. P.C. Respondent/petitioner herein appeared and sought time to file objections, but thereafter he remained unrepresented. Accordingly, the Trial Court on 26th November, 2016 directed the petitioner/respondent therein to pay Rs. 7000/- per month to the applicants/respondents herein as interim maintenance from the date of filing of the aforesaid application under Section 488 Cr. P.C. 6. Petitioner filed the revision petition before Principal Sessions Judge, Bharderwah against the order dated 26th November, 2016, passed by the learned JMIC/Munsiff, Bhaderwah, who modified the order and upheld the quantum of maintenance and ordered that maintenance allowance shall be paid by the petitioner from the date of the order. 7. I have considered the contention of learned counsel for the petitioner. 8. Perusal of contents of petition and grounds taken, it is evident that petitioner has raised disputed questions of facts, which cannot be adjudicated upon, in this petition. There are findings of facts of two courts below. It is not the case of petitioner that there is some legal bar created in any law for deciding the matter by courts below. 9. Section 488 Cr. PC is a social legislation, strict law of pleading are not applicable. Procedure is of summary nature; purpose of granting of interim relief is that petitioner/s may survive up to final adjudication of petition U/s 488 Cr. PC, which takes long time to finalize. It is not only a moral obligation, but also a legal duty of petitioner to maintain his wife and children. The primary object for granting interim maintenance to a deserted and destitute wife is for ensuring that wife should not be left beggared. The remedy provided U/s 488 Cr. PC is a summary remedy for securing reasonable sum by way of interim maintenance. Further purpose of granting interim maintenance is that applicant should be alive till the date of final order. 10. The remedy provided U/s 488 Cr. PC is a summary remedy for securing reasonable sum by way of interim maintenance. Further purpose of granting interim maintenance is that applicant should be alive till the date of final order. 10. All the points taken in this petition are subject to judicial adjudication, which stage has not yet come, because parties are yet to produce their evidence. 11. In AIR 1986 SC 984 titled Smt. Savitri , Vs. Govind Singh Rawar, the learned Judges of the Supreme Court, while considering the provisions of Section 125 of the Code of Criminal Procedure regarding interim maintenance, pending final decision in the proceedings, observed that the Courts have inherent power to grant interim maintenance pending disposal of the main case. However, the quantum of maintenance to be granted depends upon the fair needs of the person, who made the claim, and also the facts and circumstances, and relative merits of the case. It was further observed that:- “Criminal P.C. (2 of 1974), S.125 – Proceedings under-Interim maintenance pending final disposal can be granted.” “Having regard to the nature of the jurisdiction exercised by a Magistrate under S.125, 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 pending final disposal of the application. (Para 6) 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 11even an order of cancellation that may be passed after the respondent is heard. 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. (Para 6).” 12. It is now settled law that the Magistrate has got power to pass interim order directing the husband to pay reasonable sum by way of maintenance to the wife and the children. (Para 6).” 12. It is now settled law that the Magistrate has got power to pass interim order directing the husband to pay reasonable sum by way of maintenance to the wife and the children. The impugned order under challenge is only an interim order. It is subject to alteration, modification or cancellation at the time of adjudication. Therefore, in view of what has been discussed above, this petition is dismissed. However petitioner is at liberty to take all pleas before court below in objections.