Karnataka High Court
G.L. Jagadish And Etc. vs Shamantha Kumari And Ors. Etc. on 5 December, 1989
Equivalent citations: 1990CRILJ1175, I(1990)DMC552, ILR1990KAR967, 1990(3)KARLJ531
ORDER
1. In these two writ petitions under Articles 226 and 227 of the Constitution, the petitioners have sought for quashing the ex parte orders of interim maintenance passed by the Additional Principal Judge, Family Court, Bangalore. The petitioners have not yet filed their objections and sought for re-consideration of the ex parte orders of interim maintenance granted in the petitions for maintenance filed under Section 125 of the Code of Criminal Procedure.
2. The contention of the petitioners is that neither Section 125 of the Code of Criminal Procedure (in short 'Cr.P.C.') contains any provision enabling the Court to pass an ex parte order of interim maintenance nor there is any other provision in the Cr.P.C, to reconsider the order of maintenance once passed whether interim or final; that the jurisdiction exercised by the Family Court is the one exercisable by the Court of Judicial Magistrate I Class under Section 125 of the Cr.P.C.; therefore, the restrictions and the limitations imposed on the jurisdiction of the Criminal Court continue to govern the Family Court while exercising jurisdiction under Section 125 Cr.P.C. Therefore, it is submitted that the impugned ex parte orders of interim maintenance are without jurisdiction.
3. On the contrary, it is contended by Sri Subbanna, learned High Court Government Advocate that the Court that has exercised the jurisdiction is a Civil Court. The fact that there is no provision contained in Section 125 of the Cr.P.C. enabling a Criminal Court to pass an ex parte order of interim maintenance does not take away the jurisdiction vested in a Civil Court to pass ex parte orders in aid of the main relief sought in the petition. It is also further submitted by the learned Government Advocate that the matter is no more resintegra because the Supreme Court in the case of Smt. Savitri v. Govind Singh Rawat has specifically considered this question and has held that the Magistrate while exercising jurisdiction under Section 125 of the Cr.P.C. has an inherent power to pass an ex parte order awarding interim maintenance and so also the Family court which exercises the very same jurisdiction under Section 7(2)(a) of the Family Court Act, 1984, has jurisdiction to pass an ex parte order granting interim maintenance.
4. In the light of these submissions, the question that arises for consideration is as to whether the Family Court while exercising jurisdiction under Section 7(2)(a) of the Family Court Act, 1974 has jurisdiction to pass an ex parte interim order of maintenance.
5. The jurisdiction exercised by the Family Court under Section 7(2)(a) of the Family Court Act is the one exercisable by a Judicial Magistrate I Class under the Cr.P.C. wherever a Family Court is established for any area, the jurisdiction of judicial magistrate I Class having territorial jurisdiction over that area ceases and the Family Court is entitled to exercise the said jurisdiction. No doubt under Section 7(2)(a) of the Family Court Act, what is exercised by the Family Court is the jurisdiction exercisable by the Magistrate under Chapter IX of the Code of Criminal Procedure, 1973. Nevertheless it is not a Criminal Court. It is a Civil Court. There is an inherent jurisdiction in a Civil Court to pass ex parte orders and ex parte interim orders in aid of the main relief in order to protect the interest of the party who approaches the Court and/or to protect the subject matter of the suit, in order to ensure that the relief which the party will be granted in the suit or a proceeding is not rendered infructuous. Thus in aid of the final relief, an interim ex parte order can be granted. That it is so cannot at all be doubted. In the absence of such power the very jurisdiction to pass final order in many cases would be rendered ineffective. When the Court has jurisdiction to pass final order, the power to pass interim order stems from the very power to pass final order. Such a power is necessarily concomitant of the power to order maintenance. In the absence of such a power the jurisdiction will not be meaningful and effective. A person approaches the Court for maintenance because he or she as the case may be is not in a position to maintain himself or herself. If such a person is required or made to wait for a considerable time and he has to be told only after a lapse of considerable period that he or she is entitled to certain amount of maintenance, how such a person could carry on and live to know the decision of the Court which may take place in some cases several years. Such a situation would either result in miscarriage of justice or failure of justice. An interim order can also be modified, dissolved or vacated after hearing the respondent. Even the final order can be altered in the circumstances stated in Section 127 of the Cr.P.C. It is not possible to hold that the Court has no power to revise the interim order. That being the position, the fact that Section 125 of the Cr.P.C. does not specifically provide for revision of the interim order, cannot be of any relevance. Further when it is the Curt, whether Criminal or Civil, that exercises the jurisdiction, every details of the procedure need not be provided. The procedure consistent with justice and actuated by exigencies of the situation can be adopted even if there is no specific provision is provided in the statute governing or conferring the jurisdiction to award maintenance. In addition to this it is not the Criminal Court that exercises the jurisdiction. It is a Civil Court that exercises the jurisdiction exercisable by the Court of the Judicial Magistrate I Class. As a matter of fact, Chapter IX of the Cr.P.C. does not relate to any criminal matter and it is certainly not punitive. It deals with civil liabilities only. In order to ensure expeditious decision so that a person in need of maintenance is able to get it within a short period, the subject of maintenance of wives, children and parents is included in the Cr.P.C. The Judicial Magistrate I Class and the Family Court exercising jurisdiction under Section 125 of the Cr.P.C. in the light of the provisions contained in Section 7(2)(a) of the Family Court Act have jurisdiction tv pass an order directing payment of maintenance, pending final disposal of the petition filed under Section 125 of the Cr.P.C.
6. In addition to this, as contended by Sri Subbanna, learned Government Advocate, the matter is considered by the Supreme Court in Smt. Savithri's Case (1986 Cri LJ 41). The question that is specifically raised and considered in that decision is as to whether Magistrate before whom an application is made under Section 125 of the Cr.P.C. can make an interim order directing the person against whom the application is made under that Section to pay reasonable maintenance pending disposal of the application. After referring to provisions contained in Section 125 of the Cr.P.C. and other relevant provisions contained in the Code, it is held as follows (at pp. 43-44 of Cri LJ) :
"In view of the foregoing it is the duty of the Court to interpret the provisions in Chap. 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 S. 125 of the Code to pay some reasonable sum by way of maintenance to the applicant pending final disposal of the application. It is quite common that applications made under S. 125 of the Code also take several months for being disposed of finally. In order to enjoy the fruits of the proceedings under S. 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 etid 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 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 the jurisdiction exercised by Magistrate under S. 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 an application is made under it to pay reasonable sum by way of Interim maintenance subject to the other conditions referred to the pending final disposal of the application. In taking this view we have also taken note of the provisions of S. 72(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 S. 125 of the Code to the Family Courts constituted under the said Act."
Thus it is clear from the aforesaid decision that the court of the Judicial Magistrate Ist Class and the Family Court exercising jurisdiction under Section 7(2)(a) of the Family Court Act exercisable by the Court of the Judicial Magistrate I Class under Section 125 of the Cr.P.C. can grant an interim order of maintenance. However, it is contended on behalf of the petitioners that the aforesaid decision of the Supreme Court does not lay down specifically that an ex parte order of interim maintenance can be granted in a petition filed under Section 125 Cr.P.C. The contention is not well founded. Hence, it is rejected.
7. I have already pointed out that the Court has an undoubted jurisdiction to grant an ex parte order of interim maintenance. That jurisdiction has to be exercised on being prima facie satisfied that there is a case for granting interim maintenance. The Supreme Court in the aforesaid decision has indicated that the Magistrate may however insist upon the affidavit filed on behalf of the applicant concerned stating the ground to satisfy himself that there is a prima facie case for making such an ex parte order of interim maintenance. It is the common experience that considerable time is spent in the service of notice. Especially in maintenance matters, the attempt of the respondent would be to avoid service of notice and see that the matter is prolonged on the assumption that until the notice is served no interim or final order can be passed by a Court. This has also resulted in the pendency of several petitions for over years without the notice being served. When there is a jurisdiction in the Court to pass an ex parte order in aid of the final relief sought for in the petition and the person seeking makes out a prima facie case for maintenance, there is no justification whatsoever in holding that even in such cases no ex parte order of interim maintenance could be passed. Interim order of maintenance can always be revised on the respondent applying for it. In that event, the Court can heir both the sides and decide as to what should be the appropriate amount of interim maintenance pending disposal of the main petition. At the interim stage, there need not be a mini trial of the petition. The matter can be decided on affidavits and records if any produced by the parties. Therefore, the point for consideration is answered as follows :
The Family Court exercising the jurisdiction under Section 7(2)(a) of the Family Court Act in a petition filed under Section 125 of the Cr.P.C. 1973 for maintenance, on being satisfied that there is a prima facie case for maintenance and it is necessary to pass an ex parte order of maintenance has the jurisdiction to pass an ex parte order of interim maintenance. Such interim order can also be revised on being requested by the respondent by filing an appropriate application. Such an order of maintenance shall always be subject to the final adjudication on the main petition.
8. Consequently the petitions are disposed of in the following terms :
It is now open to the petitioners to file their objections or an application requesting the Family Court to re-consider the same. In that event the Family Court shall consider the request and decide the same in the light of the observations made in this order and in accordance with law.
In the facts and circumstances of the case, there will be no order as to costs.
Sri Subbanna, learned High Court Government Advocate is permitted to file his memo of appearance in six weeks.
9. Order accordingly