MANU/GJ/0343/1991

Equivalent Citation: 1992(1)C rimes910(Guj.), (1991)2GLR1385, 1992(1)RC R(C riminal)375

IN THE HIGH COURT OF GUJARAT

Decided On: 22.08.1991
Appellants: Prabhavatiben Bipinchandra Rangunwala
Vs.
Respondent: Bipinchandra Dhansukhlal and Ors.
Hon'ble Judges/Coram:
Jagdish Udeshankar Mehta, J.
JUDGMENT
Jagdish Udeshankar Mehta, J.
1. The petitioner is the original applicant who has claimed maintenance under Section
125, Cri. Pro. Code by filing Misc. Criminal Application No. 48 of 1988 on 3-3-1988
before the learned Judicial Magistrate, F.C. Surat for getting maintenance from
respondent No. 1 on the ground that the petitioner is the married wife of respondent
No. 1 and without any cause or reason she was deserted by respondent No. 1. On 19-8-
1988 the petitioner filed an application at Ex. 8 praying for interim maintenance till the
final disposal of the main application, inter alia, alleging that the petitioner has no
independent income of her own and she has to live a life depending upon her parents
who are economically poor and if the interim maintenance is not awarded, she will have
to starve. She has filed this application on solemn affirmation.
2 . The learned Magistrate, after hearing the parties, rejected the application of the
present petitioner for granting her interim maintenance. The order is annexed at Ex. "A"
to this petition.
3 . Being aggrieved by the said order of the learned Magistrate, the present petitioner
preferred Cri. Revision Application No. 118 of 1989 before the Court of the learned
Addl. Sessions Judge, Surat. After hearing both the parties, the learned Addl. Sessions
Judge rejected the said Revision Application by order dated 16-2-1991.
4. Being aggrieved by the said orders passed by the Courts below, the original applicant
has come before this Court under Article 227 of the Constitution challenging the legality
and validity of the orders passed by the Courts below.
5 . Miss Patel, learned Advocate appearing on behalf of the petitioner submitted that
both the Courts below erred in interpreting the ratio laid down by the Supreme Court in
the case of Smt. Savitri v. Govind Singh reported in MANU/SC/0104/1985 :
1986CriL J41 . She also contended that both the Courts below failed to appreciate that
the petitioner had filed the Maintenance Application on 3-3-1988 and till 21-9-1989 i.e.,
the day on which the learned Judicial Magistrate, F.C. Surat rejected the application for
interim maintenance of the petitioner the main application was not disposed of and that
the wife had to depend upon the parents for her maintenance, who were economically
poor and under these circumstances, the learned Judicial Magistrate, F.C. ought to have
granted the application for interim maintenance filed on behalf of the petitioner. She
contended that without discussing any evidence produced on record, the learned
Magistrate rejected the application for interim maintenance on the ground that the

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petitioner cannot be said to be starving as she is living with her parents. She submitted
that the judgment and order of both the Courts below are unreasonable and perverse
and, therefore, this is a fit case in which this Court should interfere under Article 227 of
the Constitution of India.
6. The learned Advocate Mr. Jariwala appearing for Mr. S.N. Shelat for respondent No.
1-original opponent contended that in view of the limited scope in the present petition,
the petition is required to be rejected. He submitted that both the Courts below have
given a finding of fact that the present applicant is living with her parents and it cannot
be said that she will have to starve and, therefore, the lower Courts have rejected the
interim maintenance application and in these circumstances, it would not be justifiable
for the High Court to exercise its jurisdiction under Article 227 of the Constitution and
interfere with the findings of fact recorded by the lower Courts. Mr. Jariwala submitted
that the function of the High Court is limited to see that the subordinate Court or
Tribunal functions within the limits of its authority and it cannot correct mere error of
facts by examining the evidence and reappreciating it. He relied upon the judgment of
the Supreme Court in the case of Babhutmal Raichand Oswal v. Laxmibai R. Tarte
reported in MANU/SC/0504/1975 : AIR1975SC1297 and the judgment of the Supreme
Court in the case of Ganpat Ladha v. Shashikant Vishnu Shinde reported in (1978) XIX
GLR 502.
7 . Mr. D.K. Trivedi, learned Public Prosecutor appearing for the State vehemently
supported the petition filed on behalf of the wife and submitted that both the Courts
below have taken unreasonable and perverse view of the matter in rejecting the
application for interim maintenance claimed by the wife and it requires interference by
this Court as this is a fit case for interference under Article 227 of the Constitution.
8 . There cannot be any doubt regarding the proposition laid down by the Supreme
Court in the aforesaid cases as conceded by Mr. Jariwala. But when the finding of the
lower Court is perverse and patently unreasonable, it becomes the duty of the Court to
interfere with the impugned order by exercising the powers of superintendence under
Article 227 of the Constitution, to prevent manifest injustice. It requires to be taken
note of the fact that the provision of Section 125 of the Criminal procedure Code is a
measure of social justice and specially enacted to protect women and children and
parents unable to maintain themselves and falls within the Constitutional sweep of
Article 15(3) reinforced by Article 39 of the Constitution of India. It is observed by the
Supreme Court in the case of Ramesh Chandra Kaushal v. Mrs. Veena Kaushal reported
in MANU/SC/0067/1978 : 1979CriLJ3 as follows:
We have no doubt that sections of statutes calling for construction by Courts
are not petrified print but vibrant words with social functions to fulfil. The
brooding presence of the constitutional empathy for the weaker sections like
women and children must inform interpretation if it has to have social
relevance. So viewed, it is possible to be selective in picking out that
interpretation out of two alternative which advances the cause--the cause of the
derelicts.
The object of Section 125, Criminal Procedure Code is to compel a man to perform the
moral obligation which he owes to the society in respect of his wife and children and
father and mother unable to maintain themselves so that they are not left beggared and
destituted on the scrap heaps of the society and thereby driven to a life of vagrancy,
immorality and crime, for their subsistence. In this general jurisdiction, a broader
perception and appreciation of facts and their bearing must govern the verdict not

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chopping little logic or tinkering with burden of proof.
9 . In the case of Smt. Savitri v. Govind Singh reported in MANU/SC/0104/1985, the
Supreme Court has observed as follows:
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 Section 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 Section 125 of the Code also take several months for being
disposed of finally. 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.
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
reply 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 under Section 125 of the
Code, we feel that the said provisions 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.
Thus, the Supreme Court has recognised the power of the Courts acting under Section
125 of the Criminal Procedure Code to pass an order for interim maintenance of
satisfying himself that there is a prima facie case for making such an order in an
appropriate case ex-parte pending service of notice of application for interim
maintenance subject to any modification or even an order of cancellation that may be
passed after the respondent is heard and in order to satisfy himself about the prima
facie case, may 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 because
the object of the provision is intended to fulfil a social purpose and to compel a man to
perform the moral obligation which he owes to the society in respect of his wife and
children because the jurisdiction conferred by the section on the Magistrate is more in
the nature of preventive rather than a remedial jurisdiction.

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1 0 . Now, looking to the facts and circumstances of the present case, the learned
Magistrate, without discussing any evidence led on behalf of the applicant and the
respondent No. 1 rejected the application on the ground that in the present case the
applicant is staying with her parents and, therefore, it cannot be said that the applicant
is starving and that the applicant has to prove that it is a legal duty on respondent No. 1
to pay the maintenance and that can be decided only after the disposal of the main
application. The learned Magistrate also stated that the applicant can be allowed if delay
is caused in deciding the main application, but the respondent has give an assurance
that he will not cause undue delay in disposing of the matter and, therefore, he came to
the conclusion that at this stage it is not necessary to give the interim maintenance to
the applicant. It is interesting to note that the main application was made by the wife on
3-3-1988 and the application for interim maintenance was filed on 19-8-1988 and the
order is passed on the interim maintenance application on 21-9-1989 and even then,
the learned Magistrate, curiously enough, appears to be of the opinion that there cannot
be said to be any delay in disposing of the main application, even though the same is
pending. I am, therefore, constrained to say on the facts of this case that the order of
the learned Magistrate is quite unreasonable and perverse. The same is the case so far
as the order passed by the learned Addl. Sessions Judge is concerned, when he
confirmed the order of the trial Court.
1 1 . One more ground is added by the learned Addl. Sessions Judge that after the
application was dismissed by the trial Court, the learned Extra Assistant Judge, Surat,
by his order dated 9-1-1991 granted an amount of Rs. 150/- by way of interim alimony
in favour of the wife under Section 24 of the Hindu Marriage Act and, therefore,
according to the learned Addl. Sessions Judge, no order of interim maintenance can be
passed in this Revision Application. A statement is made on behalf of the petitioner at
the Bar that even though the learned Extra Assistant Judge, Surat passed an order of
interim alimony under Section 24 on 9-1-1991, till today not a single pie is paid to the
petitioner by respondent No. 1. Not only that but respondent No. 1 has challenged the
said order of interim alimony before the Court of the learned District Judge and Mr.
Jariwala for respondent No. 1 has admitted the said fact. From this it is amply borne out
that respondent No. 1 is interested only in delaying the proceedings at all levels and
thus depriving the petitioner of her legitimate claim of maintenance. In my opinion,
both the lower Courts have failed to see that even though the wife has filed an
application for maintenance under Section 125 of Criminal Procedure Code on 3-3-1988,
the same is not yet disposed of till this date and thus, the object of enacting Section
125 of Criminal Procedure Code is frustrated in the present case. In my opinion, the
husband is under a moral obligation to maintain the wife and cannot disown liability or
decline to perform the obligation by refusing to maintain his wife on the ground that
she is staying with her parents and, therefore, she is disentitled to claim interim
maintenance.
1 2 . In The present case, the wife has on affidavit stated that her parents are
economically poor and she has to take shelter with the parents. Under these
circumstances, the Courts below ought to have passed an order of interim maintenance
when the main matter could not be disposed of since long as stated above.
Unfortunately, the Courts below adopted totally an erroneous approach and took a
perverse view while rejecting the application of the wife. Having regard to the facts and
circumstances of the present case, in my opinion, the order of interim maintenance is
required to be passed in favour of the applicant-wife entitling her to at least a sum of
Rs. 200/- per month from the date of the application for interim maintenance.
13. In the result, this petition is allowed. The impugned orders passed by the Courts

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below are quashed and set aside. The interim maintenance is fixed at Rs. 200/- per
month till the final disposal of the main application. Respondent No. 1 is directed to pay
the said amount of Rs. 200/- per month to the petitioner-wife as interim maintenance
from the date of the application for interim maintenance till the disposal of the main
application under Section 125 of Cri. Pro. Code. The lower Court is directed to dispose
of the main application under Section 125 of Cri. Pro. Code as expeditiously as possible.
It is also directed that the main application under Section 125 of Cri. Pro. Code be
heard and disposed of by any other Court than the Court which passed the order on the
interim maintenance application. Respondent No. 1 shall pay the cost of this petition to
the petitioner. The cost of this petition is quantified at Rs. 500/-
Rule is made absolute accordingly.

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