M.B.SHARMA, J. - (1.) A point involved in this revision petition as to whether in proceedings under Section 125 Cr.P.C. the learned Magistrate, has powers to grant interim maintenance to the wife in my opinion is no longer res -integra in view of the decision of their Lordships of the Supreme Court in Savitri Vs. Govind Singh Rawat. (1) In the aforesaid case their Lordships of the Supreme Court observing that there is no express provision in the Code of Criminal Procedure which authorises a Magistrate to make an interim order directing payment of maintenance pending disposal of application of maintenance held that it is the duty of the court to interpret the provisions in Chapter IX of the Code in such a way that the restriction placed on them would not defeat the very object of the legislation and laid down the law that the Magistrate, has powers to pass an order directing a person against an application is made under Section 125 Cr.P.C to reasonable sum by way of interim maintenance subject to other conditions referred to there till the final disposal of the application. Therefore, in view of this pronouncement of their Lordships of the Supreme Court a reasonable sum by way of interim maintenance can be allowed to the applicant provided the conditions laid down in Section 125 Cr.P.C. and given here in are prima facie satisfied. (a) That the person against whom an order of interim maintenance is made must be having sufficient means and should refuse or neglect to maintain his wife or his legitimate or illegitimate minor child unable to maintain or (b) his father or mother unable to maintain himself or herself.
(2.) THEREFORE , prima facie there must be proof of neglect or refusal by the person against whom an interim order for maintenance is made. While making an order for interim maintenance the income of the husband in case the order is made in favour of the wife and the circumstances of the case are also to be taken into consideration.
(3.) THUS , the learned Sessions Judge, Kota, was not correct when in order dated September 11. 1985, he took a view that under the Code of Criminal Procedure no order of interim maintenance on an application under Section 125 Cr.P.C. can be made. But the learned Sessions Judge, has not adverted to the other aspect of the case as to whether prima facie refusal or neglect by the husband in the facts and circumstances is made out or not and whether the sum of Rs. 350/ -awarded by way of interim maintenance, taking the income of husband Rs. 600 -/, is just or excessive.;