FAMILY LAW

Interim Maintenance

     Introduction

The order for maintenance of wife, children and parents can be passed in appropriate cases under section 125 of the Criminal Procedure Code. It is the duty of the court to interpret the provisions in Chapter IX of the Criminal Procedure Code in such a way that it would not defeat the very object of the legislation 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.  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.

In the  case of an interim maintenance, 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. 

In this blog we are referring to a  matter before Delhi High Court in the matter of Poonam Khanna vs. P. Sharma & Anr. in Cr. Misc. Petition 2602/2012 wherein the petition was filed under Section 482 Cr.P.C. against the impugned order interim maintenance to the tune of ` 5,000/- per month (“Interim Maintenence”) to the Petitioner was set aside.  Vide order dated 23.01.2010, the Interim Maintenance was awarded in favour of the Petitioner on the basis of the material placed on record by both the parties. The instant petition is being filed on the ground that the respondent has not placed any material on record for showing the earning or employment of the Petitioner. By quoting the qualification of the petitioner to earn is not contemplated under Section 125 (1) (a) Cr. P.C. and a wife, who sacrifices her lucrative career for the sake of her children besides herself being ill cannot be denied maintenance by her husband/respondent as held by various Courts in the decisions

A.             Arguments of the Petitioner

(i)           The Petitioner has raised the issue that as per the settled law, the interlocutory order being the interim maintenance order cannot be challenged by way of revision petition under Section 397 Cr. P.C.

(ii)           Secondly, she has raised the issue that learned Additional Sessions Judge, while setting aside the order passed by learned Magistrate on interim maintenance has ignored the fact:

•  that on the presumption that respondent may be able to prove the means of petitioner in future by placing additional material on record, which is against settled law that the interim maintenance must be decided on the material available on record and not on the hypothecation that the material likely to be adduced at the time of evidence.

• that the petitioner being the wife of respondent is unemployed and is not earning her livelihood. Learned Additional Sessions Judge, has ignored the submission made by petitioner that the respondent / husband is having rental income from the properties. 

 

B. Arguments of the Respondent

The Respondent has filed reply whereby he has taken preliminary objection about the maintainability of petition. He has submitted that the Petitioner has concealed important / material facts from this Court because these facts render this petition to be non-maintainable. The said facts are as under:-

(i) The petitioner proposed a settlement deed in the Court of Smt.R.S.Nag on 27.05.2002 which envisaged that the parties will seek divorce, petitioner will not claim any maintenance and respondent will forego his lien over the DDA flat as also a shop in property and property at Shivalik, shall be sold off and sale proceeds shall be divided equally between the parties. The Petitioner backtracked from the said settlement and continued with the litigation vigorously. Another settlement was executed on 02.04.2003 which was ultimately registered

(ii)      On 03.05.2003, the divorce obtained by mutual consent in terms of settlement dated 02.04.2003 and petitioner withdrew her case in the guardianship court and petition under Section 125 Cr. P.C. on behalf of his son.

(iii) The petitioner thereafter filed the application under The Protection of Women from Domestic Violence Act, 2005 claiming maintenance and same was dismissed by learned Trial Court as well as Sessions Court as non-maintainable in the background of settlement dated 02.04.2003.

(iv) On the basis of settlement dated 02.03.2003, this Court quashed four criminal cases in Criminal M.C.No.3337/2007 a petition filed under Section 482 Cr. P.C. by respondent. The petitioner preferred to challenge the said judgment in the Supreme Court, whereupon the petitioner's appeal was dismissed, thus adding sanctity to the settlement.

Settled Law

There is no doubt that no revision is permissible under Section 397(2) Cr. P.C. against an interlocutory order. However, in appropriate cases, the High Court in exercise of its powers under Section 482 is competent enough to intervene or set aside or modify even an interlocutory order in case it has resulted in abuse of process of law or is causing grave miscarriage of justice.

Conclusion

That in view of these peculiar fats and circumstances, the court said that the parties are required to prove whether the settlement arrived into between them was only illusory and sufficient arrangement has not been made for the future maintenance of the respondent/ wife or that whether respondent/wife is unable to maintain herself or whether the petitioner/husband has sufficient means or not. Section 125 Cr. P.C. says certain conditions are required to be fulfilled and it would be a matter of trial whether respondent has refused or neglected to maintain the Petitioner or whether the Petitioner is capable to maintain herself and whether the respondent has sufficient means to maintain the petitioner. In the aforesaid order, learned Additional Sessions Judge has recorded this opinion. The Petitioner during her cross-examination in the petition under Section 125 Cr. P.C. on behalf of her son deposed that she was living on the mercy of the relatives, friends but however failed to name even a single person from whom she had taken debt or loan.  Above all, the income tax returns of the Petitioner was higher in comparison to that of the Respondent. In view of above, the court found no perversity in the impugned order passed by learned Additional Sessions Judge and hence no merit in the case. Accordingly, petition was dismissed.