MOHAN LAL Vs. BHOLI DEVI
LAWS(J&K)-1999-2-35
HIGH COURT OF JAMMU AND KASHMIR
Decided on February 17,1999

MOHAN LAL Appellant
VERSUS
BHOLI DEVI Respondents

JUDGEMENT

- (1.) HEARD learned counsel for the parties. This reference has been made by learned Sessions Judge, Jammu on 31st December, 1988 recommending the setting aside of the order dated 20th May, 1999 passed by 1st Additional Munsiff, Judicial Magistrate 1st Class (Forest Magistrate) Jammu. It has been recommended that the case be remanded back with a direction to pass afresh order after hearing the parties Rs 400/ - each has been granted as maintenance interim relief under section 488 Cr.P.C by the Magistrate by virtue of his order passed on 20th May, 1998 to the wife and son, who is alleged to have been deserted by her husband. Order has been challenged in the Revision Petition before learned Sessions Judge, Jammu on the ground that the order was exparte and no opportunity of being heard was given to the husband/respondent therein. Learned Sessions Judge, Jammu has found it correct that the order was exparte.
(2.) I have gone through both the orders. The main question arises as to whether Magistrate can pass an interim relief order without notice or not. The object of this provision of law is to secure much needed relief for discarded wives helpless and deserted children and destitute parents. Word maintenance itself is very eloquent to express that it is a speedy remedy given to starving wives, children and parents so that they may not go astray. In such circumstances, maintenance allowance as interim relief can safely be given to the deserving even without notice to minimize their sufferings, but of course subject to objections of the other side. This provision has been inserted purposely in criminal proceedings to prevent delays and dilly dally tactics. I think Sessions Judge has not appreciated the point in the light of above and Apex Court also in Savitri vs. Govind Singh Rawat reported in AIR 1986 SC 984 has expressed the same views. From the above authority, it is crystal clear that the Magistrate once satisfied on affidavit that prima facie case is made out for interim relief, he can pass an order to this extent subject to objections of other side. Two things emerge from the law laid down by the Apex Court, firstly, that the law permits the Magistrate to exercise his judicial discretion if he is satisfied on affidavit that the spouse demanding the maintenance allowance is to be saved from starvation during the course of pendency of the application under section 488 Cr.P.C. and secondly, after being so satisfied he can grant interim relief to such applicant. In this case the Magistrate has prima facie satisfied himself that the applicant -wife, who has been deserted by the husband needs interirn relief till the application is finally disposed of and it is only after the satisfaction he has passed the interim relief. Only the unfortunate part of his order is the order of the Magistrate appears to be final, he has touched the merits of case, he has discussed the income of other side and has shown satisfaction that the other side is having such amount. He should not have expressed his final opinion about the income of the respondent and should not have touched the merits of the case.
(3.) AFTER all interim relief is always subject to the objections of the other side, subject to alteration, modification or cancellation. For these reasons, therefore, the reference is not accepted and the same is disposed of by upholding the order of the Magistrate of maintenance allowance of Rs 400/ - each to the applicants subject to objections, alteration, modification or cancellation. The opinion of the Magistrate expressed about the merits of the case shall not be taken into consideration at the time of disposing of the application finally.;


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