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2024 DIGILAW 127 (KER)

Azeef C. A. v. Yasmin Azeef

2024-01-31

BECHU KURIAN THOMAS

body2024
JUDGMENT : An order of interim maintenance directed to be paid to the wife and three minor children has been challenged by the husband in this original petition filed under Article 227 of the Constitution of India. As per the impugned order, petitioner has been directed to pay an interim monthly maintenance of Rs.3,500/-to his wife and Rs.2,500/-each to his minor children. 2. Sri. K.R.Vinod, the learned counsel for the petitioner, vehemently contended that the impugned order has been issued without granting an opportunity to the petitioner to file an objection and also without considering the contentions available to him. It was also submitted that petitioner is no longer employed and has no means to raise the amount of interim maintenance directed by the Court. Though the petitioner has already paid the interim maintenance as directed by the court till date, without fail, his financial condition does not enable him to pay the amount hereafter, hence this challenge. 3. Section 125 of Cr.P.C provides for a summary remedy for the payment of a monthly allowance as maintenance for wife and minor children who are unable to maintain themselves. The second proviso to section 125 was inserted in 2001, providing for the payment of interim maintenance. As per the aforesaid proviso the Magistrate has to fix the quantum of interim maintenance at a rate which he considers reasonable. There is no provision for an appeal against such an order of interim maintenance. 4. The lack of provision for challenge against an interim order of maintenance, indicates the legislative intent that, such orders should not be subjected to any challenge. The legislative intention serves a purpose as well. As the terminology 'interim maintenance’ itself depicts, it is only a temporary arrangement till final orders are passed in the main case. When final orders are issued, the same will relate back to the date of the petition as well. Hence, if every interim order of maintenance is made a subject matter of challenge under Article 227 of the Constitution of India the very purpose of interim maintenance gets defeated. Further, the destitute wife and children will also be undergo a harrowing experience, if every interim order of maintenance is challenged before a higher forum, that too when the final order itself is a measure of summary remedy. Further, the destitute wife and children will also be undergo a harrowing experience, if every interim order of maintenance is challenged before a higher forum, that too when the final order itself is a measure of summary remedy. Thus, the scope of challenge against an order of interim maintenance must be limited and restricted to those instances contemplated under Article 227 of the Constitution of India. 5. When a challenge is raised under Article 227 of the Constitution of India, against an order of interim maintenance the consideration before the court should be whether there is any perversity that goes to the root of the order or whether the quantum of interim maintenance ordered is unconscionably high. Unless the order of interim maintenance is perverse or the quantum is exorbitant, the Court should not interfere with such orders under Article 227 of the Constitution. Otherwise, serious prejudice will ensue to the wife and children, in whose favour the interim order has been issued. 6. The Supreme Court had, while interpreting the object and nature of Section 125 Cr.P.C in Smt. Dukhtar Jahan v. Mohammed Farooq [ 1987 (1) SCC 624 ] and reiterating the legal position in Kirtikant D. Vadodaria v. State of Gujarat and another [1996(4) SCC479),Chaturbhuj v. Sita Bai [2008(2)SCC316],Nagendrappa Natikar v.Neelamma [ 2014 (14) SCC 452 ], and Bhuwan Mohan Singh v. Meena and Others [2015(6)SCC353] held that, Section 125 of Cr.P.C was conceived to ameliorate the agony, anguish and financial sufferings of a woman who is required to leave the matrimonial home so that some suitable arrangements could be made to enable her to sustain herself and the children. The dominant purpose behind the benevolent provisions has been held to give social justice to the woman, child and infirm parents and that the wife, child and parents should not be left in a helpless state of distress, destitution and starvation by compelling those who can or have a moral claim for support. It provides for a speedy relief by way of maintenance to a wife who is unable to maintain herself and her children. 7. On a perusal of the impugned order, dated 12.04.2023 in M.P. No.73/2023 in M.C. No.23/2023 on the files of the Family Court, Ernakulam, it is seen that all that has been directed to be paid is Rs.3,500/-to the wife and Rs.2,500/-each to three minor children. 7. On a perusal of the impugned order, dated 12.04.2023 in M.P. No.73/2023 in M.C. No.23/2023 on the files of the Family Court, Ernakulam, it is seen that all that has been directed to be paid is Rs.3,500/-to the wife and Rs.2,500/-each to three minor children. Petitioner had not filed even any objection to the application for interim maintenance. Therefore, the Family Court had, considering the entire circumstances of the case, thought it fit to direct payment of interim maintenance. The amount ordered is not at all on the higher side and is fair and reasonable, considering the circumstances. The impugned order is also not perverse, warranting an interference by this Court. 8. Taking note of the absence of perversity in the impugned order and the quantum of interim maintenance ordered, this Court finds no reason to interfere with the impugned order. Accordingly, this original petition is dismissed in limine.