Gujarat High Court
Manojkumar Harilal Joshi vs Truptiben Manojkumar Joshi on 17 November, 2003
Author: D.H. Waghela
Bench: D.H. Waghela
JUDGMENT D.H. Waghela, J.
1. This Criminal Revision Application seeks to challenge the order of the learned Sessions Judge in Criminal Revision Application no.159/2002, whereby the order to pay interim maintenance to the respondent no.1 and 2 was revised to Rs.5000/- and Rs.1500/- from Rs.500/- and Rs.400/- respectively.
2. Admittedly, the original application for maintenance under Section 125 of the Criminal Procedure Code was filed with the contentions that the petitioner was a Professor employed at a salary of Rs.21,000/-, besides having the income from singing of songs and giving stage programmes. The original applicants, being wife aged 38 and minor son aged 12, have claimed total Rs.12,000/- per month by way of maintenance and also prayed to decide the amount of interim maintenance, since the hearing and disposal of the main application might take longer time. The applicants had substantiated their contentions by executing an affidavit dated 12-9-2002 below the application and, after considering that, the learned Chief Judicial Magistrate, Rajkot, had, by order dated 10-12-2002, ordered the payment of total Rs.900/- by way of interim maintenance.
3. Aggrieved by the aforesaid order of the learned Chief Judicial Magistrate, the said dependents of the petitioner approached the learned Sessions Judge by way of a Revision Application under Section 397 of the Criminal Procedure Code (for short "the Code") and, having regard to the facts and circumstances, more particularly the net income of the petitioner, the requirements of the estranged wife and the educational needs of the minor child who was soon to face the examination of higher standard, the learned Sessions Judge has modified the amount of interim maintenance so as to order the petitioner to pay a sum of Rs.5000/- per month to the wife and a sum of Rs.1500/- to the son. It is that order which is under challenge in this Revision Application.
4. After issuance of notice and reducing the amount of interim maintenance by way of ex parte ad interim relief, the matter has been listed from time to time and the parties appear to have entertained the hope of negotiations and reconciliation. Those efforts having failed, the application was argued for admission by the learned Counsel Mr. Gondalia mainly on the ground that the impugned order made in revision was bad in law since the Revision Application against the interim order was not maintainable under the express provisions of the Code. He pointed out the express provisions of Section (2) of Section 397 to submit that the powers of revision conferred by sub-section (1) of Section 397 cannot be exercised in relation to any interlocutory order passed in any appeal, trial or other proceeding. He also submitted that the petitioner proposed to lead, as early as possible, the evidence regarding his own personal requirements, income and the expenditure required to be incurred on other dependents, one of whom was his handicapped brother. The judgment of this Court in STATE OF GUJARAT vs. GAURANG MATHURBHAI & ORS. (1999(3) G.L.R 2325 was relied upon for the proposition of law as under:
" The expression "interlocutory order" is not defined in Criminal Procedure Code. In order to Judge whether the particular order is interlocutory or otherwise, the Court has to, making every endeavor, find out whether the order in question is interlocutory order. If it is found that the order passed is purely interim or temporary in nature which does not decide or touch the important rights and liabilities of the parties and give a final shape to a particular point at a particular stage during the course of the hearing the same can be termed interlocutory order. If the order substantially affects the rights and liabilities of the parties it would not be an interlocutory order. It may also be stated that intermediate or quasi-final order which determines a particular issue finally at any stage of the hearing will not fall within the ambit of `interlocutory order'. "
5. The provisions of the Code contained in Section 125 provide for the interim maintenance by way of a proviso as under:
"Provided further that the Magistrate may, during the pendency of the proceeding regarding monthly allowance for the maintenance under this sub-section order such person to make a monthly allowance for the interim maintenance of his wife or such child, father or mother, and the expenses of such proceeding which the Magistrate considers reasonable, and to pay the same to such person as the Magistrate may from time to time direct."
"Provided also that an application for the monthly allowance for the interim maintenance and expenses for proceeding under the second proviso shall, as far as possible, be disposed of within sixty days from the date of the service of notice of the application to such person."
5.1 Sub-section 3 of Section 125 provides that if any person ordered to pay maintenance or interim maintenance fails without sufficient cause to comply with the order, the Magistrate may, for every breach of the order, issue a warrant for levying the amount due in the manner provided for levying fines.
6. In the above scheme of legal provisions the grant of maintenance fixed by way of interim maintenance would be and would remain the amount required to be paid under the pain of penalty and in that view of the matter such order shall subsist till final disposal of the maintenance application.
7. The Criminal Procedure Code (Amendment) Act, 2001, by which the aforesaid provisions regarding interim maintenance were inserted had as its object the making of express provisions of interim maintenance allowance to the aggrieved person and it was also proposed that such order of interim maintenance should ordinarily be made within sixty days from the date of service of notice. Before the amendment, the consistent ratio of judgments of the Supreme Court was that, even without an express provision, the Magistrate had the power to make an order, directing the person against whom the application was made under Section 125 of the Act, to pay a reasonable sum by way of interim maintenance and such order of interim maintenance has been treated as final as far as the determination of interim maintenance allowance was concerned. In SUMER CHAND ALIAS SUMER NATH V. SANDHURAN RANI AND ANOTHER ( 1987 Cri.L.J. 1396), the Division Bench of the Punjab & Haryana High Court has also taken the same view as in SUNIL KUMAR SABHARWAL VS. NEELAM SABHARWAL, AND OTHERS (1991 Cr.L.J.2056) summing up the law as under:
" In brief, it may be taken as settled law that the expression `interlocutory order' u/s. 397(2) of the Code is to be given a restricted meaning. Orders which are purely procedural, necessary for the progress of the case, such as orders summoning witnesses, adjourning cases etc. are interlocutory. Finality of the case is not a sine qua non of an order for being taken out of category of interlocutory order. The crucial test is that the order substantially affects the rights and liabilities of the parties either with regard to the case as a whole or any aspect thereof. Applying the above tests, we are of the considered view that the order in question, is not an interlocutory order. Under the order the petitioner was saddled with a liability to pay maintenance till it was either finally decided or it was varied. For default in payment of the amount, coercive process could be used against the petitioner. It is plain that the rights and liabilities of the parties stood determined though until final decision of the case by the impugned order and the order could not, therefore, be considered to be interlocutory. It does not stand to reason that the aggrieved party should have no remedy against an order fixing interim maintenance."
7.1 The above view of the Punjab & Haryana High Court is supported by the judgment of the Supreme Court in MADHU LIMAYE vs. STATE OF MAHARASHTRA (AIR 1978 SC 47) wherein it is observed that:
"......... The universal application of the principle that what is not a final order must be an interlocutory order is neither warranted nor justified. If it were so it will render almost nugatory the revisional power of the Sessions Court or the High Court conferred on it by Section 397(1). On such a strict interpretation, only those orders would be revisable which are orders passed on the final determination of the action but are not appealable under Chapter XXIX of the Code. This does not seem to be the intention of the legislature when it retained the revisional power of the High Court in terms identical to the one in the 1898 Code."
8. By the aforesaid amendment by Act, 50 of 2001, the provisions of Section 127 and 128 regarding alteration and enforcement of the order of maintenance are also suitably amended so as to include the order of interim maintenance and expenses of proceedings for the purpose of enforcement of such order by any Magistrate in any place where the person against whom it is made may be. These alterations in the scheme of the provisions regarding interim maintenance clearly suggest that once the order for interim maintenance is made, it becomes enforceable under the pain of penalty and except on proof of change in the circumstances it operates on its own strength till the final disposal of the application for maintenance under the provisions of subsection (1) of Section 125. It also follows that except in case of, and upon proof of, a change in the circumstances of the person receiving interim maintenance the order for payment thereof becomes final against which no appeal lies. In such circumstances, the correctness, legality or propriety of any finding or order or the regularity of any proceedings of the inferior Court can be examined by a superior Court only if the powers of revision are available to prevent miscarriage of justice, if any.
9. As held by the Supreme Court in AMAR NATH v. STATE OF HARYANA [ AIR 1977 SC 2185 ], the orders which are matters of moment and which affect or adjudicate the rights of the accused or a particular aspect of the trial cannot be said to be interlocutory order so as to be outside the purview of the revisional jurisdiction of the High Court. It is also observed that 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 to the High Court against that order because that would be against the very object which formed the basis for insertion of this particular provision in section 397 of the 1973 Code.
10. The above discussion on the legal aspect of maintainability of the revision application, the status and effect of the order of interim maintenance, its enforceability and the absence of any provision for appeal from such order, indicate the interim order to be not an interlocutory order, but a final order on the aspect of interim maintenance even as the main application for maintenance remains pending.
11. Having held that the revision application to challenge the original order of the learned Judicial Magistrate, First Class was maintainable, there is no other infirmity, irregularity or illegality which could be pointed out from the impugned order of the learned Sessions Judge. The learned Sessions Judge has appreciated the prima facie case based on the material on record till then and found that the necessities of life and extra care of the young child studying in Standard IX require sufficient funds and the petitioner, admittedly a professor, had regular cash receipt of at least Rs.11,000/- per month and he also appeared to be owning or possessing two houses in Rajkot. In these facts and circumstances, in short, no reason is made out to interfere with the impugned judgment and order of the learned Sessions Judge in exercise of the powers of this Court under section 397 of the Code of Criminal Procedure Code. The application is, therefore, dismissed and the interim relief granted earlier in this petition is vacated with the result that the petitioner shall abide by the impugned order and pay the amounts of interim maintenance accordingly after deducting the amounts already paid in respect of the same period. It is clarified, at the request of the learned counsel, that the observations made in the impugned judgment or herein shall not be taken into account while disposing the main application for maintenance which has to be decided on its own merits on the basis of the evidence that may be led. Notice is discharged with no order as to costs.