Karnataka High Court
Devaraj S/O Basanagouda Patil vs Smt. Soumya D/O Shivayogeppa Wali on 6 November, 2012
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IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT DHARWAD
DATED THIS THE 6TH DAY OF NOVEMBER 2012
BEFORE
THE HON'BLE MR.JUSTICE K.N.KESHAVANARAYANA
CRIMINAL PETITION No.11429/2012
BETWEEN:
Devaraj S/o Basanagouda Patil,
Age: 36 years, Occ: Teacher,
R/o Hale-Veerapur, Tq: Hirekerur,
District: Haveri,
Now at Pallagatta,
Tq: Jagalur,
District: Davanagere. ... Petitioner
[By Sri.M.B.Gundawade, Advocate]
AND:
1. Smt.Soumya D/o Shivayogeppa Wali
Age: 22 years, Occ: House hold work,
R/o Hirekerur,
Now at Prof. M.B.Bijapur Building,
Mruthunjaya Nagar, Ranebennur,
District: Haveri.
2. Kum.Neha D/o Soumya
Age: 1 year,
Since minor represented by
Natural guardian mother/
Respondent No.1-Smt.Soumya. ... Respondents
This Criminal Petition is filed under Section 482 of
Cr.P.C. seeking to set aside the interim ex-parte interim
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order passed on 27.3.2012 and thereby directing the
petitioner to pay Rs.1000/- each to the respondents and
passing an order of issuance of attachment of salary of the
petitioner in Crl.Misc.No.116/2012 by the Addl. Civil
Judge & II Additional JMFC, Ranebennur and the
confirmation of the same by the Fast Track Court,
Ranebennur on 25.9.2012 in Crl.RP.No.139/2012.
This Criminal Petition coming on for admission, this
day the Court made the following:
ORDER
In this petition filed under Section 482 Cr.P.C., the petitioner has sought for quashing the order dated 27.3.2012 passed by II Additional JMFC, Ranebennur in Crl.Misc.No.116/2012 directing him to pay the interim maintenance at the rate of Rs.1,000/- per month to each of the respondent Nos. 1 and 2 pending disposal of the application for interim maintenance and also sought for quashing the order dated 25.9.2012 passed by Fast Track Court, Ranebennur in C.R.P.No.139/2012, dismissing the said petition affirming the order passed by the learned Magistrate.
2. Respondent No.1 claiming to be the wife and respondent No.2 claiming to be minor daughter of the :3: petitioner filed petition under Section 125 Cr.P.C. before the learned Magistrate seeking order of maintenance against the petitioner herein. Along with the said petition, the respondents filed interim application seeking order of interim maintenance and also sought for an exparte order for interim maintenance. The learned Magistrate on consideration of the averments made in the petition and also the statement made in the affidavit, by order dated 27.3.2012, directed payment of interim maintenance at the rate of Rs.1,000/- per month to each of the respondent Nos. 1 and 2 and directed the petitioner herein to pay the same with effect from the date of the petition namely 27.3.2012. On coming to know of the same, the petitioner herein filed revision petition before the learned Sessions Judge Haveri in C.R.P.No.139/12. The said petition came to be dismissed by order dated 25.9.2012 by the Fast Track Court, Ranebennur affirming the exparte interim order passed by the learned Magistrate. Thereafter, on 26.9.2012, the petitioner paid a sum of Rs.3,000/- towards interim maintenance and also stated to have filed objection to the application. As the entire arrears of interim maintenance ordered by the learned :4: Magistrate had not been paid by 26.9.2012 and even after deducting Rs.3,000/- paid on that day he was still due in a sum of Rs.9,000/-, the learned Magistrate ordered issue of attachment of salary of the petitioner. It is thereafter the petitioner has presented this petition.
3. I have heard the learned counsel for the petitioner.
4. The principle ground urged in this petition is that the learned Magistrate has no power or jurisdiction to pass an exparte interim maintenance and order of interim maintenance can be passed only after giving opportunity to the opposite party of being heard and after service of notice. In the light of the decision of the Hon'ble Supreme Court in the case of Smt.Savitri Vs. Govind Singh Rawat reported in [AIR 1986 SC 984], I find no substance in the said contention. The Apex Court in the said decision has held that by implication, the Magistrate exercising power under Section 125 Cr.P.C. has power to pass exparte interim order of maintenance. The relevant observations are found in para 6 of the said decision, which reads as under:
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"6. 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 U/sec.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 U/sec.125 of the Code also take several months for being disposed of finally. In order to enjoy the fruits of the proceedings U/sec.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 :6: 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 :7: 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 a Magistrate U/sec.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 the pending final disposal of the application. In taking this view we have also taken note of the provisions of S.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 U/sec.125 of the Code to the Family Courts constituted under the said Act."
5. If the petitioner has already filed his objection statement to the application filed for interim maintenance, :8: it is needless to state that the learned Magistrate is under an obligation to consider the same and pass appropriate orders either affirming or modifying the exparte interim order of maintenance. Learned counsel for the petitioner contended that objection has been filed by the petitioner denying the relationship and the said objection has not been considered by the learned Magistrate before ordering attachment of salary. Admittedly, the petitioner has not paid the interim maintenance as ordered by the learned Magistrate till the date of filing of objection and its hearing. Therefore, pending consideration of the objection filed by the petitioner, the learned Magistrate has directed attachment of salary for recovery of the arrears of maintenance. The very object of passing exparte interim maintenance is to provide immediate sustenance and succor to the respondents, who, appears to have no source of livelihood. It is only to save the destitution of the respondents, such benevolent provisions have been made. Therefore, the petitioner is under an obligation to comply with the exparte interim order passed by the learned Magistrate and insist upon the learned Magistrate to hear on the objection filed to the application and to :9: pass appropriate orders thereon. Therefore, the order passed by the learned Magistrate directing the petitioner to pay interim maintenance cannot be held as illegal. In view of the above, the learned Magistrate is justified in ordering recovery of arrears by attaching the salary. It is open to the petitioner to pay or deposit the entire arrears of interim maintenance as ordered by the learned Magistrate and thereafter request the learned Magistrate to hear on the application. If the petitioner complies with the same, the learned Magistrate is directed to consider the objection filed by the petitioner to the interim application and pass appropriate orders thereon in accordance with law.
6. In view of the above, the petition lacks merit and is accordingly dismissed.
Sd/-
JUDGE RS/*