Jammu & Kashmir High Court
Gurmeet Kour vs Amrik Singh on 10 February, 2005
Equivalent citations: 2005CRILJ3889, 2006(1)JKJ201
ORDER Y.P.. Nargotra, J.
1. The petitioner has filed an application under Section 488, Cr.P.C. for grant of maintenance against the respondent in the Court of learned Judicial Magistrate Sub-Judge, Jammu. Along with this application she also filed an application for grant of interim maintenance. Respondent in his objections admitted the factum of marriage, however, contested the entitlement of the petitioner to the interim maintenance on the ground that she was leading adulterous life. Learned Magistrate accepted the plea of the respondent and has dismissed the application of the petitioner for grant of interim maintenance being of the view that the ground taken by the respondent if ultimately proved would disentitle the petitioner to any maintenance at all, therefore, interim maintenance cannot be allowed. Aggrieved by the dismissal of the application, the petitioner-wife has filed this revision.
2. I have heard the learned Counsel for the parties and gone through the record of the case thoroughly.
3. Contention of the learned Counsel for the petitioner is that the learned trial Magistrate was not justified in dismissing the application of the petitioner for grant of interim maintenance simply on the ground that respondent in his objections had alleged that the petitioner was living adulterous life. According to him the fact of adultery could only be established by the respondent by leading evidence during the trial. He submits that the trial has yet to begin and at the stage of granting of maintenance, the Magistrate could not take into consideration, what the ultimate decision of the application would be for deciding the question of grant of interim maintenance. The petitioner was only to show prima facie that she is wife of the respondent and respondent is neglecting to maintain her making her survival difficult. In the present case, according to him the marriage between the parties has been admitted by the respondent and in the circumstances of the case, the petitioner being a destitute lady is entitled to be granted interim relief. On the other hand the contention of the learned Counsel for the respondent is that in view of the law laid down in case titled Salmant Maish v. Neena reported in 2003 (Suppl) JKJ 540 by this Court, the petitioner is not entitled to be granted interim maintenance. He submits that in case he is made to pay interim maintenance to the petitioner and ultimately the succeeds in proving the fact of adultery against the petitioner he would not be able to recover back the amount paid way of interim maintenance.
4. Provision for granting maintenance to the deserted wife and neglected children has been made in Section 488, Cr.P.C. Section intends to provide a cheap and speedy summary remedy for deserted wife and neglected children so that they are not left beggared and destitute. In Section 488, Cr.P.C. there is no express provision for grant of interim maintenance but now it is well-settled in law that the Court while dealing with the application under Section 488, Cr.P.C. can grant interim maintenance.
5. In case of Smt. Savitri v. Govind Singh Rawal, the Supreme Court has held as follows (para 6):--
"...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 common fact that applications made under Section 125 of the Act also take several months for being disposed of finally. In order to enjoy the fruits of the proceedings under Section 125 of the Act, 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...."
6. In view of the law laid down by their Lordships, every Court which has jurisdiction to grant maintenance under Section 488, Cr.P.C. possesses jurisdiction to grant interim maintenance to a person who seeks maintenance under Section 488, Cr.P.C. and is unable to maintain herself during the pendency of the proceedings and due to the neglect of the defaulting party the very survival of that person has become difficult. It is the duty of the Court to ensure that during the pendency of the main proceedings the applicant gets sufficient interim maintenance from the defaulting party so that she or he could survive and sustain herself or himself during the pendency of said proceedings. At the time of deciding the question of grant of interim maintenance the Court is not entitled to take into consideration the ultimate possibility of dismissal of main application for grant of maintenance. The grounds of defence which are subject to the proof cannot be taken into consideration at that stage by the Court. Learned Magistrate appears to have been swayed to hold the petitioner not entitled to interim maintenance on the objection of the allegation of respondent-husband that petitioner was living adulterous life. The allegation of the respondent was subject to proof and could be proved only by evidence, to be led during the trial. At the initial stage of the case while deciding the question of interim maintenance, learned Magistrate could not and should not have taken into consideration the said objection. There is always a presumption in the chastity of a woman and this presumption can be rebutted only by way of leading sufficient evidence. Therefore, the order of learned Magistrate is not sustainable in law. Learned Magistrate as well as learned Counsel for the respondent have placed reliance upon the case Salmant Maigh v. Neena reported in 2003 (Supp) JKJ 540. This authority is clearly distinguishable and has no application to the question of granting interim maintenance. In that case during the course of proceedings Under Section 488, Cr.P.C. respondent-husband had filed an application for permission of the court to establish that the petitioner-wife was living in adultery. The learned Magistrate disallowed the application on that stage and held that Magisterial Court has first to pass an order of maintenance when sufficiency of means and neglect is proved by the wife. According to the learned Magistrate it was after the passing of that order the court could advert to the fact as to whether or not the wife because of living an adultery was entitled to maintenance and in case and in the event of adultery having been proved, the Court would revoke the order. The said order of the Magistrate was challenged in a revision petition before the Court of Sessions by the wife. Learned Sessions Judge held that Section 488 of Cr.P.C. cannot be read independent of Sub-section (4) and adultery which is defence available to the husband cannot be a claim of the wife for maintenance. So the learned Sessions Judge made reference to this Court. This Court after noticing the provisions made in Section 488, Cr.P.C. observed as under :--
"A reading of above sub-section shows that this is a negative provision which disentitle the wife from any claim of allowance from her husband after it is proved that she is living in adultery. Once the statute lays a perfect bar on the entitlement of the wife, question of passing in any order in her favour in terms of Sub-section (1) will not arise. Rule of interpretation in general envisages that provision is read to be as a whole and on its grammatical interpretation if we maintain the order of learned Magistrate, then Sub-section (4) supra becomes redundant and bar created by this sub-section is non-est. I am sure, that Section 488, Cr.P.C. lays down its procedure, once a bar to the entitlement of allowance is created by the provision determination of entitlement despite such bar will be doing violence to the statute."
7. From the abovesaid observations it does not emerge out as a principle of law that whenever a husband alleges that his wife is living in adultery, it by itself would disentitle the wife from the maintenance. Sub-section (4) of Section 488, Cr.P.C. reads as follows :--
"No wife shall be entitled to receive an allowance from her husband under this section, if she is living in adultery or without any sufficient reason she refuses to live with her husband or if they are living separately by mutual consent."
8. All the three circumstances envisaged by Sub-section (4) supra are in the nature of its defence available to a husband against whom an application for grant of maintenance is filed by a wife. These defences can only disentitle a wife from maintenance when any of them is sufficiently proved before the trial Court. These defences available to a husband are not relevant at the initial stage of the case for considering the entitlement of a wife to the grant of interim maintenance. For granting interim maintenance a Magistrate is required to see as to whether on the pleadings of the wife it is prima facie made out that she being the wife of the respondent is being neglected by him and her very survival has become difficult. If prima facie these factors appear from the pleadings, it is duty of the Magistrate to grant reasonable interim maintenance in favour of the wife. The order impugned of the learned Magistrate cannot thus be sustained. The same is, therefore, set aside and learned Magistrate is directed to pass fresh orders after hearing the learned Counsel for the parties on the application of the petitioner for grant of interim maintenance during the pendency of the petition. The record of the case along with copy of this order be sent back. Learned counsel for the parties are directed to cause the appearance of the parties before the trial Court on 25-2-2005.