Madras High Court
Pandi @ Soundara Pandi vs G.Sasikala on 1 September, 2015
Author: S.Vimala
Bench: S.Vimala
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 01.09.2015 CORAM THE HON'BLE MRS.JUSTICE S.VIMALA Crl.R.C.(MD) No.385 of 2015 and Crl.R.C.(MD) No.386 of 2015 and M.P.(MD) No.1 of 2015 Pandi @ Soundara Pandi ... Petitioner in both petitions -vs- 1. G.Sasikala 2. Minor Pooja ... Respondents Prayer in Crl.R.C.(MD) 385/2015: Criminal Revision Petition has been filed under Sections 397 and 401 of Cr.P.C., to call for the entire records pertaining to the order passed by the learned Judicial Magistrate, Nilakottai, Dindigul District in Cr.M.P.No.6377 of 2015 in M.C.No.7 of 2015 dated 22.06.2015 and set aside the same. Prayer in Crl.R.C.(MD) 386/2015: Criminal Revision Petition has been filed under Sections 397 and 401 of Cr.P.C., to call for the entire records pertaining to the order passed by the learned Judicial Magistrate, Nilakottai, Dindigul District in Cr.M.P.No.8385 of 2015 in Cr.M.P.No.6377 of 2015 in M.C.No.7 of 2015 dated 24.08.2015 and set aside the same. !For Petitioner : Mr.R.Anand ^For Respondent : :O R D E R
?We are guilty of many errors and many faults, but our worst crime is abandoning the children, neglecting the fountain of life. Many of the things we need can wait. The child cannot. Right now is the time his bones are being formed, his blood is being made, and his senses are being developed. To him we cannot answer ?Tomorrow,? his name is today.? - Gabriela Mistral If instant justice is the need of the child, whether in an application for interim maintenance, the Court should pass ad-interim exparte order of interim maintenance under proviso to Section 125 (1) Cr.P.C. is the issue canvassed in this revision petition.
2. Aggrieved over the order of interim maintenance passed by the learned Judicial Magistrate, Nilakottai, directing the revision petitioner to pay a sum of Rs.2,500/- each to R1 and R2, who are the wife and the minor daughter of the revision petitioner respectively, this revision petition has been filed.
3. The respondents herein have filed an application for maintenance in M.C.No.7 of 2015 before the learned Judicial Magistrate, Nilakottai, Dindigul District. In M.C.No.7 of 2015, an interlocutory application has been filed in Cr.M.P.No.6377 of 2015 by the wife, seeking interim maintenance, pending disposal of the main application.
4. The learned Judicial Magistrate has taken the sworn statement of the 1st respondent herein and after perusing the records, has directed the revision petitioner to pay a sum of Rs.2,500/- to each of R1 and R2. Immediately after passing of the order of interim maintenance, notice has been ordered to the respondent / revision petitioner herein, returnable by 01.07.2015.
4.1. Similarly, in M.C.No.7 of 2015, notice has been ordered. Again fresh notice has been ordered on 01.07.2015 for hearing on 22.07.2015. Copies have been furnished to the revision petitioner on that day and the order of interim maintenance has been communicated to the husband. On 05.08.2015, the revision petitioner filed an application in Cr.M.P.No.8385 of 2015 in Cr.M.P.No.6377 of 2015 under Section 126 Cr.P.C., seeking postponement of the order.
4.2. The relief sought for in this M.P should have been more appropriately worded. Either the husband should have asked for setting aside of the order or modification of the order, instead has asked the relief of postponement of the order. However, this Court has construed the prayer as the one for cancellation of the order of maintenance.
5. In the petition, the revision petitioner has stated that he is a businessman deriving meagre income and that as he has no intention to desert either his wife or the child and hence the order of interim maintenance ought not to have been passed without notice to him.
6. The Court, after considering the application in Cr.M.P.No.8385 of 2015 in Cr.M.P.No.6377 of 2015 (filed under Section 126 of Cr.P.C.), seeking to set aside the order of interim maintenance, dismissed the same. Relying upon the decisions reported in,
i) 1993 Crl.Law Journal 2898 (Calcutta High Court);
ii) 1996 Crl.Law Journal 1896 (Chennai);
iii) 2005 Crl. Law Journal 1455 (Gujarat High Court), the Court held that there is nothing wrong in Court passing an exparte order of interim maintenance. Whether this finding is sustainable is the main issue canvassed in this revision petition.
6.1. It will be appropriate to refer to the provisions of Section 125 Cr.P.C. to appreciate the contention raised by the revision petitioner:
?Order for maintenance of wives, children, and parents.-(1) If any person having sufficient means neglects or refuses to maintain-
(a)his wife, unable to maintain herself, or
(b) his legitimate or illegitimate minor child, whether married or not, unable to maintain itself , or
(c) his legitimate or illegitimate child (not being a married daughter)who has attained majority, where such child is, by reason of any physical or mental abnormality or injury unable to maintain itself, or
(d) his father and mother, unable to maintain himself or herself, A Magistrate of the first class may, upon proof of such neglect or refusal , order such person to make a monthly allowance for the maintenance of his wife or such child, father or mother, at such monthly rate [i], as such Magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to time direct:
Provided that the Magistrate may order the father of a minor female child referred to in clause (b) to make such allowance, until she attains her majority, if the Magistrate is satisfied that the husband or such minor female child, if married, is not possessed of sufficient means. [ii][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.] 6.2 pointing out this proviso, learned counsel for the revision petitioner would vehemently contend that when the provisions of Section 125 Cr.P.C. provides for notice being issued to the revision petitioner before passing any interim order of maintenance, the order passed by the learned Judicial Magistrate, before even issuing notice, cannot be sustained and therefore, it is liable to be set aside.
6.3. Whether the proviso enjoining the Magistrate to dispose of the application for interim maintenance within a period of 60 days should be construed as the proviso relating to limitation (providing for 60 days time) for the final disposal of the application for interim maintenance or it should be construed as a provision which is mandatory in nature, directing the Court to issue notice before passing an order of interim maintenance.
6.4. This involves interpretation of the proviso to Section 125 Cr.P.C.
A bare mechanical interpretation of the words and application of a legislative intent devoid of concept of purpose will reduce most of the remedial and beneficial legislation to futility, as held by the Hon'ble Supreme Court in the case of Organo Chemical Industries vs. Union of India, AIR 1979 SC 1803.
6.5. ?To be literal in meaning is to see the skin and miss the soul. The judicial key to construction is the composite composition of deha and the dehi of the provision.? - Sakunthala S.Tiwari vs. M.Chand, AIR 1987 SC 1823.
6.6. With regard to the principles of interpretation with reference to Section 125 Cr.P.C., the Hon'ble Supreme Court has held in the case of Shamima Farooqui vs. Shahid Khan (Crl.A.Nos.564 and 565 of 2015).
?It can never be forgotten that the inherent and fundamental principle behind Section 125 CrPC is for amelioration of the financial state of affairs as well as mental agony and anguish that woman suffers when she is compelled to leave her matrimonial home. The statute commands there has to be some acceptable arrangements so that she can sustain herself. The principle of sustenance gets more heightened when the children are with her.
7. Keeping these principles in mind, the provision for interim maintenance has to be interpreted.
8. The provision for maintenance has been provided under the provisions of the Protection of Women from Domestic Violence Act also, under Sections 20 and 23. Section 23 provides for the power to grant interim and exparte orders: The relevant provision under D.V. Act are extracted for convenient reference:
20 (1) a to c....
d. the maintenance for the aggrieved person as well as her children, if any, including an order under or in addition to an order of maintenance under section 125 of the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force.
23. (1) In any proceeding before him under this Act, the Magistrate may pass such interim order as he deems just and proper.
(2) If the Magistrate is satisfied that an application prima facie discloses that the respondent is committing, or has committed an act of domestic aviolence or that there is a likelihood that the respondent may commit an act of domestic violence, he may grant an ex parte order on the basis of the affidavit in such form, as may be prescribed, of the aggrieved person under section 18, section 19, section 20, section 21 or, as the case may be, section 22 against the respondent.
In many jurisdictions, the claim made under Section 125 Cr.P.C. are also dealt with by the Judges of the Family Court.
9. When an aggrieved person can get an exparte interim maintenance while moving the Family Court invoking the provisions of the Domestic Violence Act, there is no reason as to why the same relief of maintenance should be denied to him, while moving for the same relief under the provisions of Code of Criminal Procedure, when the provisions in both the enactments intend to provide instant relief to the victims.
10. The provision for interim maintenance was introduced by amending under Section 125 Cr.P.C. and the amendment was introduced by Act 50 of 2001 (with effect from 24.09.2001). Prior to this amendment, the Hon'ble Supreme Court considered the implied power of the Magistrate to grant interim maintenance under Section 125 Cr.P.C. while considering that issue, after explaining the object of the enactment, after giving a finding that jurisdiction conferred upon the Magistrate is preventive rather than remedial held that the Magistrate has got the implied power to order interim maintenance. The relevant observation pointing out the implied power of the Magistrate reads as under:
?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 lt 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 lead to the passing of interim orders in a large number of cases where the liability to pay maintenance may not exist.?
11. When there was no provision for grant of interim maintenance pending disposal of the main application, the Hon'ble Supreme Court has held as stated supra. Now, the question is, when there is a provision for interim maintenance, whether the power to grant interim maintenance includes the implied power to grant ad-interim exparte order of maintenance.
12. In many cases, it is seen that there is an inordinate delay in disposal of the main petition seeking maintenance. Whenever the status of the wife and the paternity of children are admitted, the relevant issues to be considered would be as follows:
a) whether the husband had sufficient means to maintain the wife and children;
b)whether the husband neglected and refused to maintain the wife and children;
c) whether the wife was unable to maintain herself;
d) whether the wife is living in adultery;
e) whether the wife refuses to live with the husband without any sufficient reasons
f) whether the wife is living separately by mutual consent.
So far as the minor children are concerned, relevant issue would be, whether the children (legitimate or illegitimate) are unable to maintain themselves.
The stage of minority itself would be sufficient to come to a conclusion that the child is not able to maintain itself.
So far as the child, who has attained majority is concerned, whether such child was unable to maintain itself by reason of any physical or mental abnormality or injury.
Obviously, those issues are not complicated issues.
13. Rarely, the status of the wife is disputed and only in few cases, the defense of disentitlement of the wife on the ground of her living in adultery is raised. In majority of the cases, depending upon the financial capacity of the husband, the Court has to fix the quantum of maintenance. This is not a complex issue, requiring voluminous evidence. Therefore, prima facie, based on the affidavit and documents, it is possible to pass an ad- interim exparte order of maintenace. If notice is ordered within a week and if it is brought to the notice of the Court that the exparte order was obtained by misrepresentation or fraud or uttering falsehood, the order can be suspended or even be set aside. Only this methodology would provide adequate and timely justice to the deserving wife and children. It would be appropriate to quote the poignant observation of the Hon'ble Supreme Court where it was found that it took 10 years for Family Court to dispose of the maintenance application.
?........Procrastination is the greatest assassin of the lis before it. It not only gives rise to more family problems but also gradually builds unthinkable and Everestine bitterness. It leads to the cold refrigeration of the hidden feelings, if still left. The delineation of the lis by the Family Judge must reveal the awareness and balance. Dilatory tactics by any of the parties has to be sternly dealt with, for the Family Court Judge has to be alive to the fact that the lis before him pertains to emotional fragmentation and delay can feed it to grow.?
14. If this sort of situation is to be avoided, then it is necessary that in all cases, exparte order of interim maintenance has to be passed excepting cases where there seems to be prima facie disqualification for the applicant to claim maintenance.
15. This observation of the Hon'ble Supreme Court came to be made, having been worried over the fact that the application for grant of maintenance which was filed in the year 1998 was not decided till 17.02.2012.
16. When the object of granting maintenance is a measure of social justice intended to prevent vagrancy and destituteness, whether this state of affairs should not be taken into account while interpreting the provisions of the proviso to Section 125 Cr.P.C. was the issue operating in the mind of the Court.
17. It is contended that before issuing notice to the respondent, the Court cannot order interim maintenance. Whether this contention is correct? Observing that in order to enjoy the fruits of the proceeding, the applicant should be made alive till the date of final order and the applicant in large of number of cases, will be benefited only if an order for interim maintenance is passed by the Court, the Hon'ble Supreme Court justified the grant of interim maintenance. Such being the objective of interim maintenance, the contention that the respondent is entitled to notice before ordering interim maintenance cannot be sustained.
18. It is not as if the revision petitioner was without any remedy. The revision petitioner has taken out an application to cancel the order of maintenance in Cr.M.P.No.8385 of 2015. The interim maintenance ordered is purely provisional in nature, which is flexible, which is liable to be modified, set aside, reduced or be confirmed, subject to the defense taken by the other side. Accordingly, the Court has entertained the petition and after hearing both parties, has chosen to dismiss the petition. Therefore, the contention that the Court has no power to pass exparte ad-interim order of interim maintenance is not sustainable.
19. The Court has got not only the power, but the duty to consider the application for grant of interim maintenance and to pass exparte ad-interim order of interim maintenance in all cases, even before issuing notice to the respondent as per the proviso to Section 125(1) Cr.P.C., except where there is apparent disqualification under the Law for the petitioner to claim maintenance. In cases, where the Court is not granting ad-interim exparte order of maintenance, the Court shall record the reasons in brief and then order notice.
20. In many cases, the delay in grant of maintenance is itself on account of delay in service of notice to the respondent. Once the interim maintenance is ordered, the respondent will not be inclined to evade the service of summons. In fact, he would be anxious to appear before the Court to contest the interim order of maintenance.
21. Moreover, the impact of delay is not realized by the respondent quite often and they realize the burden only when the arrears of maintenance get accumulated. Ultimately, the respondent finds it difficult to pay the arrears of maintenance in lumpsum. This kind of difficulties can also be avoided once an order of interim maintenance is passed and it is being paid regularly.
22. Before the expiry of 60 days period, the Court will be able to pass final order disposing of application for interim maintenance after hearing both sides on merits. This will ameliorate the problems of the children and wife. If the order had been obtained by suppression of material facts or based on false allegations, the order could be modified / set aside, even before the implementation of the exparte order interim maintenance, i.e. even before the 1st payment. Thus, the rights and interests of both parties can be protected. Therefore, there is no legal impediment in passing ad-interim exparte order of interim maintenance.
23. Coming to the facts of this case, so far as the liability of the husband / father to pay maintenance to the wife / daughter is concerned, the defense open to the revision petitioner is very limited. Insofar as the 2nd respondent is concerned, she, being the daughter, the liability is absolute on the part of the revision petitioner.
24. So far as the liability to maintain the wife is concerned, the justifiability of the wife to live away from her husband is the main issue to be decided by the Court. It is pointed out that the husband has also filed an application before the Sub-Court, Dindigul for restitution of conjugal rights. Just because, a petition for restitution of conjugal rights is filed, it cannot be said that wife has no justifiable ground to live away from the husband. The only inference that the husband has taken steps to bring back his wife thereby implying that he would not have intended to neglect the wife. This inference is once again subject to the evidence, which have to be adduced on both sides.
25. The learned Magistrate has held that the husband has not taken any effective steps to take back the wife except filing the petition for restitution of conjugal rights and therefore, the order of interim maintenance is not liable to be set aside. As the question of neglect on the part of the husband and justifiability of the wife to live away from the husband are factual aspects, which requires proof, the learned Magistrate, instead of dismissing the petition should have passed an order expediting the enquiry in the main petition.
26. Since the liability of payment of maintenance to the daughter is absolute, the revision petitioner shall continue to pay interim maintenance of Rs.2,500/- to the 2nd respondent herein, until the quantum is finally decided by the learned Judicial Magistrate in the main proceeding. So far as the order passed in respect of the wife is concerned, it is suspended and the liability and quantum can be decided in the main application.
27. There is an undertaking by the learned counsel for the revision petitioner to co-operate for final disposal of the main application. The revision petition shall file a counter immediately in the next hearing. If no counter is filed, the application in Cr.M.P.No.8385 of 2015 shall be treated as a counter in the M.C.No.7 of 2015.
28. The learned Judicial Magistrate, Nilakottai, Dindigul District is directed to dispose of the main application within a period of one month from the date of receipt of a copy of this order.
29. With the above condition, these Criminal Revision Petitions stand partly allowed and the order of interim maintenance stands modified to the extent indicated above. Consequently, connected miscellaneous petition is also closed.
To:
Judicial Magistrate, Nilakottai, Dindigul District.
.