Jharkhand High Court
Uttam Kumar Choubey vs Kiran Devi @ Kumari Kiran And Ors. on 17 August, 2005
Equivalent citations: II(2006)DMC284, [2005(4)JCR406(JHR)], 2006 CRI LJ (NOC) 278, 2005 AIR - JHAR. H. C. R. 2583, (2006) 2 DMC 284, (2005) 4 JLJR 202, (2005) 4 JCR 406 (JHA), (2006) 37 ALLINDCAS 289 (JHA), (2005) 4 EASTCRIC 174
Author: Amreshwar Sahay
Bench: Amreshwar Sahay
ORDER Amreshwar Sahay, J.
1. This revision application has been filed by the petitioner, against his wife and daughter, challenging the Judgment dated 28.01.2004, passed by Principal Judge, Family Court, Dumka, directing the petitioner to pay Rs. 1000/-per month to his wife, and Rs. 500/- per month to his daughter, by way of interim maintenance during the pendency of the proceeding under Section 125, Cr PC initiated at the instance of the wife and daughter of the petitioner, who are opposite Party Nos. 1 and 2 in this application.
2. The petition under Section 125, Cr PC was filed by the opposite party Nos. 1 and 2 before the Principal Judge, Family Court, Dumka for a direction to pay maintenance to them, which was registered as Criminal Misc. Case No. 69 of 2003. During the pendency of the said petition, one another application was filed by the said opposite parties for a direction to the petitioner herein to pay Rs. 3000/- and Rs. 2000/- per month respectively to opposite party Nos. 1 and 2 by way of interim maintenance during the pendency of the proceedings under Section 125, Cr PC.
3. It is not disputed that opposite party No. 1 is the legally wedded wife of the petitioner and opposite party No. 2 is the daughter, who were presently living at the place of the father of opposite party No. 1 at Dumka. It appears that both the parties are fighting several cases against each other, which are going on.
4. According to the claimant wife (opposite party No. 1), she could live at her matrimonial home only for few days, as during her stay there, she was tortured and ill treated by her husband and his family members. It was further alleged by the opposite party No. 1 that during her stay at her marital house, she found that her husband was keeping a Santhal woman and was having illicit relationship with her. It was further stated that after bearing filthy languages and ill treatment at the hands of her husband, opposite party No. 1 fell ill and then she was taken to her parent's place at Dumka by her husband (petitioner) in ailing condition. Thereafter, on his constant visit to Dunmka, she conceived and gave birth to a female child i.e., opposite party No. 2.
The opposite parties have no independent source of income, are living at Dumka at the residence of father of opposite party No. 1 after being deserted and neglected by the petitioner, who had his income not less than 15.000-20.000/- per month.
5. The prayer of the opposite parties for grant of maintenance as well as interim maintenance was objected to by the revision petitioner on various grounds. The learned Principal Judge, Family Court, Dumka, by impugned order, awarded the interim maintenance in favour of the wife and daughter (opposite party Nos. 1 and 2) of the petitioner, which has been challenged in this revision application.
6. Mr. Nilesh Kumar, learned counsel appearing for the opposite parties raised objection regarding maintainability of the present revision application on the ground that against the order awarding interim maintenance, a revision would not be maintainable under Section 397(2) of the Code of Criminal Procedure as the impugned order is interlocutory in nature.
7. Mr. Rajiv Ranjan, learned counsel appearing for the petitioner submitted that though the present revision application arises against the order awarding interim maintenance, but the revision is maintainable as order impugned is in the nature of final order where the right of the parties have been decided and, therefore, the bar under Section 397(2) would not apply in the present case.
8. The meaning of "Interlocutory Order" has elaborately been dealt with and interpreted by the Apex Court in the case of V.C. Shaukla v. State through CBI , wherein the Supreme Court has held as follows :
"The word 'interlocutory order' used in Section 397(2) of the Code relates to various stages of the trial, namely, appeal, Inquiry, trial or any other proceeding. The object seems to be to cut down the delays in stages through which a criminal case passes before it culminates in an acquittal, discharge or conviction. Having regard to the very large ambit and range of the Code, the expression 'interlocutory order' would have to be given broad meaning so as to achieve the object or the Act without disturbing or interfering with the fairness of the trial. The term 'interlocutory order' used in the Code of Criminal Procedure has to be given a very liberal construction in favour of the accused in order to ensure complete fairness of the trial because the bar contained in Section 397(3) of the Code would apply to a variety of cases coming up before the Courts not only being offences under the Penal Code but under numerous Acts. The revisional power of the High Court or the Sessions Judge could be attracted if the order was not purely interlocutory but intermediate or quasi final."
9. It is further relevant to notice the decision of the Supreme Court rendered in the case of Smt. Parmeshwari Devi v. The State , wherein the Supreme Court after discussing the scope of 397(2) of the Cr PC has held as follows :-
"The purpose of Section 397 of the new Code is to keep such an order outside the purview of the "power of revision ', so that the enquiry or trial may proceed without delay. This is not likely to prejudice the aggrieved party for it can always challenge it in due course, if the final order goes against it. But it does not follow that if the order is directed against a person who is not a party to the enquiry or trial and he will have no opportunity to challenge it after a final order is made affecting the parties concerned, he cannot apply for its revision even if it is directed against him and adversely affects his rights. An interlocutory order, though not conclusive of the main dispute may be conclusive as to the subordinate matter with which it deals. It may thus be conclusive with reference to the stage at which it is made, and it may also be conclusive as to a person, who is not a party to the enquiry or trial, against whom it is directed."
10. It is relevant to notice at this juncture the decision of the Supreme Court in the case of Smt. Savitri Govind Singh Rawat v. Govind Singh Rawat where the Apex Court was dealing with a matter regarding grant of interim maintenance in a proceeding under Section 125, Cr PC. The Apex Court held that it is quite common that the application made under Section 125, Cr PC takes several months for being disposed of finally. In order to enjoy the fruits of the proceedings under Section 125, Cr PC, the applicants should be alive till the date of the final order and the applicant do in a large number of cases only if an order for payment of interim maintenance is passed by the Court. The jurisdiction conferred by the Section on the Magistrate is more than preventive rather than remedial jurisdiction. It is certainly not curative.
During the pendency of the proceeding under Section 125, Cr PC the Court before whom the proceeding is pending, has the power and jurisdiction to pass an order directing payment of a reasonable amount by way of interim maintenance till the disposal of the application under Section 125, Cr PC. The purpose behind granting such interim relief has been discussed by the Apex Court in the case of Savitri Govind Singh Rawat (supra).
11. From the above discussions, it appears that Chapter IX of the Code of Criminal Procedure contains summary and quick remedy for securing some reasonable amount by way of maintenance to protect to destitute wife from starvation. Section 125, Cr PC does not provide for full and final determination of the personal rights of the parties. The jurisdiction conferred by that provision is more in the nature of preventive, rather then a remedial jurisdiction. It is certainly not punitive one. The Court is empowered either to modify or even to cancel the order passed by him earlier. Therefore, granting interim maintenance, pending proceeding under Section 125, Cr PC can either be modified or even be cancelled at subsequent stage and, therefore, it cannot be said that the interim order of maintenance is a final order.
According, it is held that the grant of interim maintenance pending proceeding under Section 125, Cr PC is an interlocutory order and thus no revision is maintainable in view of bar under Section 397(2) of the Cr PC.
Accordingly, this revision application is dismissed as not maintainable.