MANU/OR/0296/1991

Equivalent Citation: 1991(I)OLR475

IN THE HIGH COURT OF ORISSA

Criminal Revision Nos. 256 and 257 of 1987
Decided On: 28.03.1991
Appellants: Jayaram Thakra
Vs.
Respondent: Sabitri Thakra and Ors.
Hon'ble Judges/Coram:
S.C. Mohapatra, J.
Counsels:
For Appellant/Petitioner/Plaintiff: B. Rath, P.K. Parida and R.C. Rath
For Respondents/Defendant: S.C. Mohanty, J.K. Bastia, R.N. Panda, R.K. Nayak and B.
Das
JUDGMENT
S.C. Mohapatra, J.
1. These two revisions arise out of a proceeding under Section 125, Cr. P. C.
2 . Opp. party No. 1 is wife and opp. party Nos. 2 and 3 are minor daughters of
petitioner. In the proceeding for maintenance they filed an application for interim
maintenance. By order dated 1-10-1986, trial Court directed petitioner to pay interim
maintenance at the rate of Rs. 150/- per month where it was directed that on failure to
comply with the order, petitioner would not be allowed to contest the case. After one
month when order was not complied with by petitioner, opposite parties, filed an
application to give direction to petitioner to pay the same, Petitioner submitted that with
object of challenging the order he has not complied with the same but in spite of
application, certified copy has not been supplied till then. Learned Magistrate held that
withholding of interim maintenance which is granted to avoid vagrancy and destitution
would frustrate the purpose and accordingly, rejecting submission of petitioner, he
ordered to set petitioner ex parts and proceeding was posted for ex parts hearing.
Against the said order, Criminal Revision No. 257 of 1987 has been filed, ex parte
hearing, order dated 4-2-1987 was passed directing payment of maintenance at Rs.
400/- per month against which Criminal Revision No. 256 of 1987 has been filed.
After ex parte hearing, order dated 4-2-1987 was passed directing payment of
maintenance at Rs. 400/- per month against which Criminal Revision No. 256 of 1987
has been filed.
3 . In spite of absence of provision for grant of interim maintenance in a proceeding
Under Section 125, Cr. P. C, Courts on grant the same in just circumstances. See
MANU/SC/0104/1985 (Smt. Savitri v. Govind Singh Rawat) (1989) 2 OCR 687
(Yudhistir Nayak v. Smt. Rukmani Nayak) (1989) 2 OCR 84 (Madhab v. Minamani Das
and Another) MANU/OR/0152/1986(Smt. Sulochana Sahu v. Baman Ch. Sahu). Where a
party feels aggrieved, he should be given a chance to approach higher forums to

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vindicate his grievance. Rigidity in insisting upon compliance of the order by creating
circumstances for which such party cannot express his grievance is not a fair play, Trial
Court, ought to- have examined if petitioner was supplied with a certified copy on his
complying with the formalities. To avoid vagrancy and destitution, a method should not
have been adopted which prevents a party from expressing his grievance.
4 . Direction setting petitioner ex parte is grievance of petitioner as learned Magistrate
has no power to pass an ex parte order except the grounds provided for in Section
126(2) Proviso which reads as follows:
"126. Procedure:
(1) xx xx xx
(2) All evidence in such proceedings shall be taken in the presence of
the person against whom an order for payment of maintenance is
proposed to be made or, when his personal attendance is dispensed
with in the presence of his pleader, and shall be recorded in the
manner prescribed for summons cases:
Provided that if the Magistrate is satisfied that the person against whom
an order for payment of maintenance is proposed to be made is wilfully
avoiding service, or wilfully neglecting to attend the Courts the
Magistrate may proceed to hear and determine the case ex parts and
any order so made may be set aside for good cause shown on an
application made within three months from the date thereof subject to
such terms including terms as to payment of costs to the opposite party
as the Magistrate may think just and proper."
5. Non-compliance of order to pay interim maintenance is not a situation envisaged to
pass ex parts order. Specific provision for ex pane order having been made by
Parliament, there is no scope for Courts to lead into the provision something which is
not consistent with the language of the said provision. Power to set a party ex parts is
not ancillary to exercise main power. Civil Courts might have jurisdiction in just cases
to impose restriction on defaulting husband from contesting in exercise of inherent
power. Such power has not been vested in Criminal Courts since inherent power is
vested with High Courts only Under Section 482, Cr P. C. Same principle is not possible
to be applied-to proceedings before Criminal Courts.
6 . Giving opportunity of being heard in a principle of natural justice which is to be
followed unless statutory provision leads to a conclusion otherwise, in this view of the
matter, I am inclined to hold that drastic power to take away the right to defend ought
not to be invoked unless language of the statute does nor envisage the same.
7 . I might have considered to think differently if the persons who were given interim
maintenance would not have any remedy to realise the same. Such order for interim
maintenance can be executed like a final order for maintenance. Courts can execute the
order promptly to give relief to eradicate vagrancy or destitution.
8 . So far as wives to whom maintenance is ordered to be paid, difficulties have been
removed-by the Committee for implementing legal aid schemes constituted- by Central
government headed by a Sitting judge of Supreme Court which is known as CIAS. It has
intimated the Orissa State Legal aid and Advice Board in letter dated 29-91989 that to
cover the difficult period from the institution of proceedings for matrimonial

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maintenance from a husband, wife can be paid financial: assistance in deserving cases
by the State Board up to a ceiling of Rs. 300/- per month for a maximum period of six
months with order of Courts. Implementation of the scheme is simple. Wife who has an
order for getting maintenance in her favour is to make an application to the Court for
getting, the financial assistance from the State legal aid Board. Court is to examine the
justification of the prayer and pass an order to that effect in his favour in a deserving
case. Since the amount of legal assistance to be received is to be paid back to she
Board for being utilised in other deserving, cases for making it a permanent scheme for
temporary assistance, wife is to execute an undertaking for adjustment of the amount
recovered from the husband as per order of she Court. Time for six months is adequate
enough to recover the maintenance amount from the husband. Courts should be more
vigilant in such cases. Introduction of this scheme is not yet made known to Courts. It
inadvisable that a scheme is prepared by Member-Secretary of State legal Aid and
Advice Board and circulated to all Courts dealing, with maintenance of wives from
husbands in this State so that it can be implemented to the benefit of destitute by the
Courts in deserving cases without wafting for any administrative direction from the High
Court since ' the scheme is not in any manner inconsistent with administration of
Justice, Rather it is in furtherance of the same.
9. In this case, adopting the scheme of CILAS, I direct She State Legal Aid and Advice
Board in exercise of power Under Section 482, O.P.C to implement the scheme on
receipt of order of the Court and proposal for such financial assistance to the extent of
Rs. 150/- only which has been awarded as interim maintenance treating it to be an
order for favour of the wife which would be utilised for benefit of children also.
10. Coming back to the order setting petitioner ex parte I am satisfied that learned
Magistrate had no such power and this is also not a deserving case where such drastic
action was called for. Accordingly, order dated 11-11-1986 is set aside and consequent
final order is also vacated learned Magistrate shall continue the proceeding from the
stage where it was on 11-11-1986. Proceeding Under Section 125, Criminal Procedure
Code may be finalised within three months of receipt of record of this Court, Both
parties are directed to appear before the learned Magistrate on 6th May 1991 for fixing a
date of hearing.
11. In the result, both the revisions are allowed to the extent indicated above. There
shall be no order as to costs.
Send a copy of this order to Member secretary, State legal Aid and Advice Board for
compliance Revisions allowed.

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