Section 125 Cr.P.C. : Application for Interim Maintenance has to be Decided on the basis of Affidavit [Case Law]
Criminal Procedure Code, 1973 - S. 125 - Order for maintenance of wives, children and parents - Application for interim maintenance has to be decided on the basis of affidavit.
Hon'ble Shri Justice Sanjay K. Agrawa
15/05/2018
Cr.M.P.No.
514 of 2018
Akhilesh Kumar
Jagatramka Vs. Ganesh Kumar Jagatramka
For Petitioner : Mr.Kishore Bhaduri, Advocate For Respondents : Mr.Vineet Kumar
Pandey, Advocate
O R D E R
1. This is an avoidable
and unfortunate litigation between father & mother and their son. Challenge
in this petition is order of interim maintenance granted by the Family Court, Raigarh
dated 22.2.2018 (Annexure P/1) granting an amount of ₹ 40,000/- per month (₹ 10000/- per month to respondent
No.1 and ₹ 30,000/-
per month to respondent No.2) from the date of order.
2. A well known proverb is
required to be noticed herein:-
“Maatru Devo Bhava” (revere your mother as God)
and “Pitro Devo Bhava (revere your father as God).
The
above-stated words of prudence direct us to treat our parents as God.
Modernization, technological advancement and social liability have changed our
life-style and values. We
have completely forgotten the duties of a son towards aged parents. We have
also abandoned our ancient traditions when parents were most revered and
respected.
3. A test of Manu cited in
the Mitakshara and the Parasaramadhaviya says:-
“It is declared by Manu that
the aged mother and father, the chaste wife and an infant child must be
maintained even by doing a hundred misdeeds.” (See Manu's Hindu Law 16th edition Para 722)
4.
The petitioner herein is a son, failed to perform his parental duties towards
his parents by maintaining them, forced them to institute proceedings for
maintenance under Section 125 CrPC, in which they also claimed interim maintenance
which was replied by the petitioner. Learned Family Court pending adjudication
of maintenance proceedings, directed the petitioner herein to pay a sum of ₹ 40,000/- per month as an interim
maintenance without going into the merits of the matter, which has been seriously
disputed by the petitioner stating that the claim of the respondents/parents is
an act of playing fraud upon the Court, as the respondents are not dependent
upon the petitioner and they are self-sufficient wealthy business persons
having properties Raigarh at prime locations valuing in excess of crores of
rupees and interim maintenance has been granted without appreciating the reply
of the petitioner and documents appended thereto, which deserves to be set
aside.
5. I have heard learned
counsel for the parties and considered their rival submissions made
herein-above and also went through the records with utmost circumspection.
6. The provision contained
in Section 125 CrPC is a piece of social legislation and provides for summary
and speedy relief by way of maintenance to a person who is unable to maintain.
The object of this provision being to prevent vagrancy and destitution, it has
to be found out as to what is required by wife/parents to maintain a standard
of living which is neither luxurious nor penurious, but is modestly consistent
with status of the family. The needs and requirement of wife/child/parents for
moderate living, the earning of the husband, son or his capacity to earn and
his commitments are relevant factors.
7. By the Code of Criminal
Procedure (Amendment) Act, 2011, sub-section (1) and (2) came to be amended
with effect from 24.9.2001 by which ceiling which was fixed under the original
enactment of 1973 of ₹ 500/- has been removed and now it is open to a Court under the
amended law to fix such amount as it “thinks fit”.
8. Section 125 CrPC as
originally enacted did not expressly empower the Magistrate to make such order
and direct payment of interim maintenance, but by the Amendment Act 2011, power
and jurisdiction to grant interim maintenance has been conferred to Magistrate.
9. The Supreme Court in
the matter of Savitri w/o
Govind Singh Rawat v. Govind Singh Rawat, (1985) 4 SCC 337 held that magistrate has implied power on being prima facie satisfied
to pass interim order directing the person from whom the maintenance is claimed
to pay a reasonable sum by way of interim maintenance to the applicant pending
final disposal of the application on the basis of affidavit filed by the
applicant stating the grounds in support of the claim for interim maintenance.
10. The Supreme Court in
the matter of Sunita Kachwaha
and others v. Anil Kachwaha, (2014) 16 SCC 715 held that person claiming maintenance must positively aver and prove
his/her inability to maintain. It was observed as under:-
“7. Inability to
maintain herself is the precondition for grant of maintenance to the wife. The
wife must positively aver and prove that
she is unable to maintain herself, in addition to the fact that her husband has
sufficient means to maintain her and that he has neglected to maintain her. In
her evidence, the appellant wife has stated that only due to help of her
retired parents and brothers, she is able to maintain herself and her daughters. Where
the wife states that she has great hardships in maintaining herself and the daughters,
while her husband's economic condition is quite good, the wife would be entitled
to maintenance.”
Their Lordships further in Sunita
Kachwaha (supra) held that merely because
wife is earning something, would not be a ground to reject her claim for
maintenance.
11. The proceedings under
Section 125 CrPC, it must be remembered, are of a summary nature and are
intended to enable destitute wives and children, the latter whether they are
legitimate or illegitimate, to get maintenance in speedy manner (See Smt.Dukhtar Jahan v. Mohammed Farooq, (1987) 1 SCC 624).
12. Recently, the Supreme
Court in the matter of Bhuwan
Mohan Singh v. Meena and others, (2015) 6 SCC 353 deprecating the delay in concluding the maintenance proceeding
observed as under:-
“13. The purpose of highlighting this aspect is that in the
case at hand the proceeding before the Family Court was conducted without being
alive to the objects and reasons of the Act and the spirit of the provisions
under Section 125 of the Code. It is unfortunate that the case continued for
nine years before the Family Court. It has come to the notice of the Court that on certain occasions the Family Courts have been granting
adjournments in a routine manner as a consequence of which both the parties
suffer or, on certain occasions, the wife becomes the worst victim. When such a
situation occurs, the purpose of the law gets totally atrophied. The Family
Judge is expected to be sensitive to the issues, for he is dealing with
extremely delicate and sensitive issues pertaining to the marriage and issues
ancillary thereto. When we say this, we do not mean that the Family Courts
should show undue haste or impatience, but there is a distinction between impatience
and to be wisely anxious and conscious about dealing with a situation. A Family
Court Judge should remember that the 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. We hope and trust that
the Family Court Judges shall remain alert to this and decide the matters as
expeditiously as possible keeping in view the objects and reasons of the Act
and the scheme of various provisions pertaining to grant of maintenance, divorce,
custody of child, property disputes, etc.”
13. Reverting to the facts of the
case, it appears that learned Family Court granted the application for interim maintenance
only on the basis of averments made in the said application and reply of that
application filed by the petitioner herein as no affidavits were filed by the respondents
in support of the application for interim maintenance. Likewise, no affidavit
was filed by the petitioner to oppose the application for interim maintenance.
It ought to have been decided on the basis of affidavit on the question of
interim maintenance filed by the parties, which is in teeth of judgment of the
Supreme Court in the matter of Savitri
(supra), as such, order of interim maintenance
has been passed on the basis of no material.
14. As a fallout and
consequence of the above-stated discussion, order granting interim maintenance
is set aside. The matter is remitted to the Family Court, Raigarh with
following directions:-
(i) That the parties will appear before the Family Court,
Raigarh on 23.5.2018 and they will file their affidavit in support of
application for interim maintenance/reply to application within 7 days from the
date of their appearance (23.5.2018).
(iii)
Thereafter, the Family Court, Raigarh will consider and decide the application
for interim maintenance afresh within further 7 days thereafter by a reasoned and
speaking order after hearing the parties on or before 11.6.2018.
(iv)
Final maintenance proceedings will be decided expeditiously as held by Hon'ble
Supreme Court in the matter of Bhuwan
Mohan Singh (supra).
15. The
petition is allowed to the extent outlined hereinabove.
No
cost(s).
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