MADHAB DAS Vs. MINAMANI DAS AND ANR.
LAWS(ORI)-1988-12-21
HIGH COURT OF ORISSA
Decided on December 15,1988

Madhab Das Appellant
VERSUS
Minamani Das Respondents

JUDGEMENT

V. Gopalaswamy, J. - (1.) THIS revision is preferred against the order of the learned S.D.J.M. Puri, directing the Petitioner to give interim maintenance at the rate of Rs. 200/ - per month towards the maintenance of his legally married wife and daughter, the present opposite parties, in Misc. Case No. 17 of 1987, a proceeding under Section 125, Code of Criminal Procedure.
(2.) ADMITTEDLY the opposite Party No. 1 is the legally married wife of the Petitioner and opposite party No. 2 is their daughter. Opposite parties 1 and 2 filed Misc. Case No. 17 of 1987 on 28.1.1987 under Section 125, Code of Criminal Procedure claiming maintenance at the rate of Rs. 900/ - per month. On 4.4.1988 the opposite parties filed an application praying for awarding interim maintenance at the rate of Rs. 500/ - per month. The learned S.D.J.M. passed the impugned order directing the Petitioner to give interim maintenance to the opposite parties at the rate of Rs. 200/ - per month. Being aggrieved by that order, the present revision is preferred. The only point that arises for consideration in this revision is whether a Magistrate before whom an application is made under Section 125 of the Code of Criminal Procedure, 1973 can make an interim order directing the person against whom the application is made under that section to pay interim maintenance to the applicant concerned pending disposal of the application.
(3.) MR . S.D. Das, the learned Counsel for the opposite parties, relied on the decision Savitri v. Govind Singh Rawat : AIR 1986 S.C. 984, in support of the proposition that during the pendency of a proceeding under Section 125, Code of Criminal Procedure an interim order can be passed awarding interim maintenance in favour of the applicant under that section. The following observations of the Supreme Court in the above referred decision are considered material and relevant for the purpose of this revision petition and therefore, the same are quoted below: The jurisdiction of a Magistrate under Chapter IX of the Code is not strictly a criminal jurisdiction. While passing an order under that Chapter asking a person to pay maintenance to his wife, child or parent, as the case may be, the Magistrate is not imposing any punishment on such person for a crime committed by him. Chapter IX of the Code contains a summary remedy for securing some reasonable sum by way of maintenance, subject to a decree, if any, which may be made in a Civil Court in a given case provided the Personal Law applicable to the person concerned authorises the enforcement of any such right to maintenance. The Code, however, provides a quick remedy to protect the applicant against starvation and to tide over immediate difficulties, Chapter IX of the Code does not in reality create any serious new obligation unknown to Indian social life.... X X X X In view of the foregoing it is the duty of the Court to interpret the provisions in Chapter 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 Section 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 Section 125 of the Code also take several months for being disposed of finally. In order to enjoy the fruits of the proceedings under Section 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 at id sine quo res ipsa case non potest (where anything is conceded, there is conceded also anything without which the thing itself cannot exist.) Vide Earl Jawitt's Dictionary of English law 1959 edn. p. 1797). Whenever anything is required to be done by law and it is found impassible to do that thing unless something not authorised in express terms be also done then that something also 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 grave hardship to the applicant, who may have not means to subsist until the final order is passed. There is no room far 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 far making such an order. Such an order may 811 as 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 en affidavit, there is no reason why a Magistrate should not rely on them far 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 Section 125 of the Code, we feel that the said prevision 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....;


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