Charan Dass v. Sheela Devi

Per Arun Kumar Goel, Judge.:-

1. This reference under Section 436 of Criminal Procedure Code is received on the recommendation made by learned Sessions Judge, Jammu vide his order dated 6th February, 1998. By means of said order its has been recommended by the revisional court below for setting aside the order of interim maintenance passed by the trial Magistrate on 9.12 1997 being legally infirm.

2. I have heard Mr. Khajuria, learned counsel appearing for the petitioner in sup­port of this reference as well as Shri Babu Ram Sharma, learned counsel appearing for respondent, who opposed the reference made by learned Sessions Judge, Jammu and have also examined the records of the trial court with the assistance of learned counsel appearing for the parties.

3. According to Sh. Khajuria his client has neither neglected nor refused to main­tain the respondent wife who infact, was residing under the same roof with her hus­band petitioner. Thus no case has been made out for invoking Section 486 Cr. P.C. by the respondent wife. An attempt was made by Shri Khajuria to refer to proviso of this Section for accepting the reference in toto. On the other hand learned counsel appearing for the respondent wife opposed the submissions made on behalf of the petitioner and further urged that the revisional court below had fallen into error while making the recommendation in ques­tion to this court. Not only this, but accord­ing to learned counsel for the respondent wife there is ample material to prima facie show that petitioner has wilfully neglected as well as refused to maintain the respond­ent and thus she is entitled to the mainte­nance claimed, both in the main case as well as in the application for grant of in­terim maintenance. Reliance was placed in support of this plea for the grant of in­terim maintenance on AIR 1986 SC 984 "Smt. Savitri Petitioner vs Sh. Govind Singh Rawat, Respondent".

4. It was further made out by Sh. Sharma that relationship having been asmitted, simply because parties were living under the same roof cannot be made a ground at the very outset to hold that the party concerned cannot maintain the application in question. Sh. Khajuria has relied upon the judgement reported in AIR 1959 Calcutta 454 "Sew Kumber, Petitioner vs Mongol (Mongri) Opposite Party".

5. In order to properly understand the controversy involved in this case as well as to properly appreciate the respective submissions urged by the learned coun­sel for the parties, brief facts need to be referred to which are to the following ef­fect.

6. Respondent wife filed petition under Section 488 of Criminal Pricedure Code on the plea that she is an old ailing lady and is not being provided maintenance by her husband (petitioner in this revision). Fur­ther case of the wife was that she has been put to miseries and was also being sub­jected to unnecessary harrassment by her husband without any rhyme and reason According to wife, her husband has re­ceived Rs. 40.000/- as gratuity and is get­ting pension of Rs. 1400/- per month, be­sides obtaining income of Rs 100/- per day by selling vegetables. In this background maintenance @ Rs. 1000/- was claimed. It may be noticed here under Section 488 Cr. PC. maximum amount awardable to the party claiming maintenance is Rs. 500/- per month and nothing more. This claim of the wife is being contested by the husband, who questioned the maintainability of the petition since parties were living under the same roof. Amongst other things it was pleaded that husband is providing all nec­essary maintenance in the shape of resi­dence, clothing and food to the wife and thus dismissal of the petition was prayed for. It was admitted that the husband is getting pension of Rs. 1200/- month. It was during the course of such proceedings under Section 488 Cr. PC. that an appli­cation has been filed by the wife on 9th September, 1997 before the trial court, which was also contested and resisted by the husband. Trial Magistarte on 9.12.1997 allowed Rs. 450/- per month as interim maintenance from 9.9.1997 during the pendency of the proceedings under Sec­tion 488 Cr. P.C.

7. This order passed by the trial court granting interim maintenance was questioned by the husband before the revisional court below, who has made recommenda­tions accepting the plea of the husband for setting aside the order passed by the trial court.

8. It hardly needs to be emphasised that the purpose of enacting provisions under Section 488 Cr. P.C. is to provide summary and speedy remedy to a wife unable to maintain herself, or his legitimate or ille­gitimate minor child whether married or not unable to maintain itself, or 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 of proof of sufficient means as well as neglect or refusal to maintain is liable to pay maintenance.

9. The purpose of this enactment is to prevent vagrancy by compelling a person to support his wife or child unable to sup­port itself. Further object of this section is to provide cheap and speedy but limited relief for neglected wives and children, and machinery is provided under Section 488 of Criminal Procedure Code for the said purpose. By grant of maintenance under Section 488 Cr. P.C. the object has been attained by providing barest minimum ne­cessity for existence of the party concerned namely food and clothing. No doubt on the other hand the provisions of this Section are not aimed at being penal in nature or as a cause of harrassment against the person from whom maintenance is claimed.

10. In addition to above, it may also be appropriately mentioned that the powers of the criminal courts under section Cr. P.C 489 and 490 are limited in scope and the orders passed there under are subject to final adjudication that may be made by a civil court between the parties respecting their civil rights and status and in no case these proceedings can be equated to a civil suit for maintenance. As a consequence of this the orders passed being tentative are subject to final determination of rights of the parties by a civil court of competent jurisdiction and further liable to variation depending upon the circumstances of each case.

11. In the aforesaid background when the recommendations made by the learned Sessions Judge below are examined, it is clear that those cannot be accepted in toto. In the present case learned counsel in his wisdom did not produce any material to prima facie show, including an affidavit that the wife is entitled to interim maintenance. Still the trial Magistrate could have asked the wife to place some material, may be in the shape of an affidavot in support of her claim for such interim relief. Admittedly that had not been done. Here the observations made by the Apex Court in the case of 'Smt. Savitri Petitioner vs Sh. Govind Singh Rawat, Respondent" (supra), may be ap­propriately noticed:

".......The Magistrate may, however insist upon an affidavit being filed by or on behalf of the applicant con­cerned stating the ground 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 experte 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 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."

12. As already noticed, unfortunately no steps appear to have been taken by the learned counsel for the wife, who appears to be an illiterate lady without being aware of niceties and intricacies of law, same mistake has been committed by the trial court before passing the order on 9th De­cember, 1997 while allowing the interim maintenance.

13. So far the plea of the husband that the wife is living with him under the same roof and is being looked after by him is concerned, it is a question to be ultimately determined white finally adjudicating the matter. Thus no benefit can be had by the petitioner from the case of "Sew Kumber, Petitioner vs Mongru (Mongri) Opposite Party (supra) in this case.

14. In view of the aforesaid discussion, recommendations made by the learned Sessions Judge below while making ref­erence vide his order dated 6.2.1998 are accepted in part and consequently the im­pugned order passed by the trial court is set aside partly. However, while doing so the file is sent back to the trial court with a direction to it to call upon the parties to file affidavit(s) in support of their respective contentions made by them in application for grant of interim maintenance/its reply and then decide the said application afresh in accordance with law after hearing the parties.

15. Reference is answered in these terms. Parties through their counsel are directed to appear before the trial court on 3oth June, 1998 before which date regis­try will ensure that the record of the case is made available to the said court, before parting, it is hoped that keeping in view its docket trial court would make all out ef­forts for the expeditious disposal of the main case under Section 488 of Criminal Procedure Code filed by the wife.

Jammu 29-05-1998.