Karnataka High Court
Devendrappa S/O. Nagappa Harijan vs Renuka W/O. Devendrappa Harijan on 22 January, 2014
Author: K.N.Phaneendra
Bench: K.N. Phaneendra
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 22nd DAY OF JANUARY, 2014
BEFORE
THE HON'BLE MR. JUSTICE K.N. PHANEENDRA
CRIMINAL PETITION No. 100105/2014
BETWEEN:
DEVENDRAPPA S/O. NAGAPPA HARIJAN
AGE: 35 YEARS, OCC: AGRICULTURE
R/O. SAAVIKERI, TQ:HONGAL
DIST: HAVERI
... PETITIONER
(BY SRI LAXMAN T MANTAGANI, ADV.)
AND
RENUKA W/O. DEVENDRAPPA HARIJAN
AGE: 30 YEARS, OCC: HOUSEHOLD WORK
R/O. SAAVIKERI, TQ: HONGAL
DIST: HAVERI
... RESPONDENT
THIS CRIMINAL PETITION IS FILED U/S 482 OF
CR.P.C. PRAYING TO SET ASIDE THE IMPUGNED ORDER
PASSED BY THE COURT OF SENIOR CIVIL JUDGE AND
JMFC, HANGAL, HAVERI, IN CRIMINAL MISC.
NO.149/2013 DATED 03/10/2013 ON I.A. NO.1.
THIS PETITION COMING ON FOR ADMISSION THIS
DAY, THE COURT MADE THE FOLLOWING:
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ORDER
The petitioner has called in question in this petition the ex-parte order of interim maintenance passed against the petitioner in favour of the respondent herein in Crl.Misc.No.149/1013 dated 3/10/2013.
2. On perusal of the order, it discloses that the learned Magistrate on the petition filed under Section 125 of Cr.P.C., passed an ex-parte order, awarding interim maintenance of Rs.6,000/- per month from the date of the order. Simultaneously, issued notice to the respondent along with the interim maintenance order passed on IA No.I. The respondent later appeared before the Magistrate on 6/12/2013. In the meantime, the present petition is filed.
3. In view of the above said facts and circumstances of the case and also question involved is as to:
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"Whether the ex-parte interim maintenance order passed by the learned Magistrate can be challenged before the same Court or not?"
4. It is worth to note here the decision of the Hon'ble Supreme Court reported in AIR 1986 SC page 984 between Savitri W/o Govind Singh Rawat Vs. Govind Singh Rawat wherein the Hon'ble Supreme Court has held as follows at Paragraph 6:-
"In view of the foregoing it is the duty of the court to interpret the provisions in Chapter IX of the Code in such a way that the construction placed on them would not defeat the very object of the legislation. 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 18 quite common that applications made under section 125 of the Code also take several months 4 for being disposed of finally. In order to enjoy the fruits of the proceedings under section 125, 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. This principle is embodied in the maxim 'ubi aliquid conceditur, conceditur et id sine quo res ipsa esse non potest (Where anything is conceded, there is conceded also anything without which the thing itself cannot exist.) (Vide Earl Jowitt's Dictionary of English Law 1959 Edn. P.1797). Whenever anything is required to be done by law and it is found impossible to do that thing unless something not authorised in express terms be also done then that something else will be supplied by necessary intendment. Such a construction though it may not always be admissible in the present case however would advance the object of the legislation under consideration. A contrary view is likely to result in grave hardship to the applicant, who may have no means to subsist until the final order is passed. There is no room for the apprehension that the recognition of such implied power would 5 lead to the passing of interim orders in a large number of cases where the liability to pay maintenance may not exist. It is quite possible that such contingency may arise in a few cases but the prejudice Caused thereby to the person against whom it is made is minimal as it can be set right quickly after hearing both the parties. The magistrate, may, however, insist upon an affidavit being filed by or on behalf of the applicant concerned stating the grounds in support of the claim for interim maintenance to satisfy himself that there is a prima facie case for making such an order. Such an order may also be made in an appropriate case ex parte pending service of notice of the application subject to any modification or even an order of cancellation that may be passed after the respondent is heard. If a civil court can pass such interim orders on affidavits, there is no reason why a magistrate should not rely on them for the purpose of issuing directions regarding payment of interim maintenance. The affidavit may be treated as supplying prima facie proof of the case of the applicant. If the allegations in the application or the affidavit are not true, it is always open to the person against whom such an order is made to show that the order is unsustainable. Having regard to the nature of 6 the jurisdiction exercised by a magistrate under section 125 of the Code, we feel that the said provision should be interpreted as conferring power by necessary implication on the magistrate to pass an order directing a person against whom an application is made under it to pay a reasonable sum by way of interim maintenance subject to the other conditions referred to there pending final disposal of the application. In taking this view we have also taken note of the provisions of section 7 (2)(a) of the Family Courts Act, 1984 (Act No. 66 of 1984) passed recently by Parliament proposing to transfer the jurisdiction exercisable by magistrates under section 125 of the Code to the Family Courts constituted under the said Act."
(Emphasis supplied)
5. In view of the above said ruling, it is amply clear that if an ex-parte order is made pending service of notice of the application, the learned Magistrate is empowered to modify or even cancel the order passed by him after hearing the respondent. Therefore, there is absolutely no room for the petitioner to approach this Court under Section 482 of Cr.P.C.
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6. Giving liberty to the petitioner herein to file appropriate application before the Magistrate for modification or cancellation of the ex-parte interim maintenance order passed by the Magistrate and with a direction to the Magistrate to provide an opportunity to the respondent to contest the application and also dispose of the application on merits in accordance with law.
Accordingly, this petition stands dismissed. In view of the disposal of the petition, the pending IA1/2014 does not survive for consideration.
SD/-
JUDGE Vmb