Calcutta High Court
Saili Halder vs Debaprasad Halder And State Of West ... on 25 February, 2005
Equivalent citations: (2005)3CALLT12(HC), 2005(3)CHN87, II(2005)DMC856
JUDGMENT Arun Kumar Bhattacharya, J.
1. The hearing stems from an application filed by the petitioner praying for revision of the order dated 20.08.2004 passed by the Id. Judicial Magistrate, 9th Court, Alipore in Case No. M-60/2004 refusing the prayer for her interim maintenance.
2. The circumstances leading to the above application are that the present petitioner filed an application under Section 125 Cr. PC being registered as Case No. M-60/2004 against her husband the present O.P. No. 1, in the Court of Id. SDJM, Alipore with a prayer for interim maintenance for self and her two minor sons, but the Court of Id. Judicial Magistrate, 9th Court, Alipore to which the case was transferred, while granted interim maintenance in favour of her two sons to the tune of Rs. 350/- p.m. each refused her prayer for interim maintenance vide order dated 20.08.2004.
3. Being aggrieved by, and dissatisfied with, the said order, the present revision has been preferred.
4. All that now requires to be considered is whether the Id. Court below was justified in passing the said order refusing the prayer of the petitioner for interim maintenance.
5. Mr. Aloke Mitra, Id. Counsel for the petitioner, contended that on being driven out by O.P. No. 1 from her in-laws' house his client with her two minor sons having no income is now at the mercy of a Mahila Seva Samity which has arranged for their accommodation and though the necessary ingredients for invoking the provision of Section 125 Cr. PC were there, her prayer for interim maintenance was refused on a ground extraneous to the issue and as such that part of the order is liable to be set aside. O. P. No. 1, who appeared in person, on the other hand, on referring to a xerox copy of certificate issued by the Registrar, P.W. (Roads) Department, submitted that he is a Lower Division Assistant in the P.W. (Roads) Department, now under suspension and receives a meagre subsistence allowance of Rs. 830/- p.m. only and he is not in a position to arrange for his medical treatment even of his eyes.
6. The first question that crops up for consideration is whether the impugned order refusing interim maintenance is vulnerable in revision in view of the limitations embodied in Section 397(2) Cr. PC.
7. "Interlocutory order" has not been defined in the Code. A judgment or order may be final for one purpose and interlocutory for another or final as to one part and interlocutory as to another. The meaning of two words "final" & "interlocutory" has to be considered separately in relation to the particular purpose for which it is required, as was held in Mohan Lal's case, reported in AIR 1968 SC 733. Order which is passed on a matter arising from and during the course of an appeal, inquiry, trial or other proceeding before a Criminal Court by way of preliminary or procedural step and which does not terminate the said appeal, inquiry, trial or proceeding by deciding finally the dispute between rights of the parties, will be an interlocutory order. The expression "interlocutory order" merely denotes order of a purely interim or temporary nature which does not decide or touch the important rights or the liabilities of the parties. Any order which substantially affects the rights of the accused, or decides certain rights of the parties cannot be said to be an interlocutory order so as to bar a revision against that order. Orders which are matters of moment and which affect and adjudicate the rights of the accused or a particular aspect of the trial cannot be said to be interlocutory orders so as to bar revision, as was observed in Amarnath's case, reported in AIR 1977 SC 2185. The said decision was reviewed and affirmed in Madhu Limaye's case, reported in AIR 1978 SC 47 holding that "interlocutory order" cannot be equated as invariably being converse of "final order"; an order passed during the course of a proceeding may not be final but, yet it may not be an interlocutory order, pure and simple. Some kinds of order may fall in between the two which must be taken to be an order of the type falling in the middle course. The bar of Section 397(2) is not meant to be attracted to such kinds of intermediate orders. Agreeing with the exposition of law in Madhu Limaye case(supra) it has been reiterated in the case of V.C. Shukla, reported in AIR 1980 SC 962 that the term "interlocutory order" has to be given a liberal construction in favour of the accused in order to ensure complete fairness of the trial and the revisional power could be attracted if the order was not purely interlocutory but intermediate or quasi-final. Therefore, when the impugned order which affects the rights of the petitioner on a particular aspect of the trial cannot be said to be interlocutory order so as to bar revision.
8. Section 125 prescribes a summary procedure with a view to providing a speedy remedy against vagrancy and starvation of a deserted wife or child or indigent parents, the object being to compel a man to perform the moral obligation which he owes to society in respect of his wife, children and parents so that they are not left beggared and destituted on the scrap-heap of society and thereby driven to a life of vagrancy, immorality and crime for their subsistence.
9. At the stage of hearing an application for interim maintenance which is generally disposed of on the basis of affidavit filed by or on behalf of the applicant stating the grounds in support of the claim for such maintenance, the Court is to satisfy itself regarding existence of a prima facie case for making such an order. Where such a prima facie case has been made out, interim maintenance cannot be denied unless it is barred by any other provision.
10. Residing of the wife in a place on her own arrangement at the charity and mercy of others cannot be held to amount to discharge of the moral and legal obligation of the husband to look after his wife. The wife cannot be treated as a chattel. The word "maintenance" is not to be narrowly interpreted. It means the most reasonable requirement for existence of a person to live separate. As regards the above contention of O.P. relating to his receipt of a meagre subsistence allowance of Rs. 830/- p.m. the certificate produced by him reveals that his total subsistence allowance per month is Rs. 4720/-, out of which a major portion (Rs. 3500/-) is deducted for payment of building loan, GPF loan and co-operative loan and Rs. 340/- towards GIS and GPF contribution. If the above contention of the O.P. is taken into consideration, any person who is obliged to maintain his wife, children etc. by adopting the same recourse can avoid his solemn obligation to maintain and thus frustrate the very raison d'etre of the provision which is not permissible.
11. The Revisional Court is concerned with the legality and propriety of the order and its jurisdiction as a broad proposition which is merely illustrative and not exhaustive may be justified where (a) the decision is grossly erroneous, (b) there is no compliance with the provisions of law, (c) the finding of fact affecting the decision is not based on evidence, (d) judicial discretion is exercised arbitrarily or perversely etc. Applying the above propositions, in the case on hand, the impugned order refusing grant of interim maintenance is not at all sustainable on the ground of non-application of judicial mind and non-compliance with the provisions of law. In the present case, Id. Magistrate appears to have failed to take relevant matters into consideration and proceeded to deal with the matter on a different angle which is not germane to the issue, thus resulting in failure of justice.
12. Accordingly, that part of the order is not sustainable and the present revisional application succeeds.
13. In the premises the impugned order dated 20.08.2004 refusing the prayer of the petitioner for interim maintenance is set aside, and the case be sent back to the Id. Court below with a direction to dispose pf the petitioner's prayer for interim maintenance in the light of the observations made above and in accordance with the law, after giving an opportunity to the parties of being heard, as expeditiously as possible preferably within three months from the date of receipt of this order.
14. Let a copy of this order be sent down at once to the Id. Court below.