Wednesday, August 7, 2013

Orissa HC : Magistrate can order intr main u/s 125 CrPC from date of filing application. Need NOT be from date of application for *interim* maintanence or from the date of the order for interim maintenance. However the magistrate to discuss the reason for such directions.

Magistrate can order intr main u/s 125 CrPC from date of filing application. Need NOT be from date of application for *interim* maintanence or from the date of the order for interim maintenance. However the magistrate to discuss the reason for such directions. 


Learning
**********************
* Quoting the Honourable HC : "..........the Magistrate has the competence to direct payment of interim maintenance from the date of filing of the application under Section 125 Cr.P.C. it has to be borne in mind that ordinarily the direction for payment of interim maintenance is either from the date of the order or from the date of application for interim in it If the Magistrate considering the facts and circumstances of the case before him deems it just and proper to direct that interim maintenance should be paid not from the date of the order or from the date of application for interim maintenance but from the anterior date of filing of the application under Section 125 Cr.P.C. He should discuss the reason for such direction, (his will not only convince the parties that the jurisdiction vested in him has been exercised properly and on sound judicial principles ........"
* However in this case the hapless husband is contesting the VERY marriage
* the husband is begging as to WHY the case / main petition is NOT disposed off and why interim has to be granted !! and those thoughts are NOT discussed by the Honourable HC !! 




******************************disclaimer**********************************
This judgment and other similar judgments posted on this blog was / were collected from Judis nic in website and / or other websites of Govt. of India or other internet web sites like worldlii or indiankanoon. Some notes are made by Vinayak. This is a free service provided by Vinayak (pen name). Vinayak is a member of SIF - Save Indian Family Foundation. SIF is committed to fighting FALSE dowry cases and elder abuse. SIF supports gender equality and a fair treatment of law abiding Indian men. Should you find the dictum in this judgment or the judgment itself repealed or amended or would like to make improvements or comments, please post a comment on the comment section of the blog or write to e _ vinayak @ yahoo . com (please remove spaces). Vinayak is NOT a lawyer and nothing in this blog and/or site and/or file should be considered as legal advise.

******************************************************************
CASE FROM INDIAN KANOON SITE 
******************************************************************

   
Orissa High Court

Smt. Sabita Sahoo vs Captain Khirod Kumar Sahoo on 16 October, 1990

Equivalent citations: II (1991) DMC 288

Author: D Mohapatra
Bench: D Mohapatra

JUDGMENT

D.P. Mohapatra, J.

1. These two revision petitions are inter-linked. They are directed against different orders passed in Criminal Misc. Case No. 37 of 1988 pending in the Court of the Judicial Magistrate, First Class Bhubaneswar With consent of the learned counsel for the parties the cases have been heard together and are being disposed of by the common order.

2. The controversy in these cases relates to payment of interim maintenance by Khirod Kumar Sahoo to Smt. Sabita Parida alias Sahu during pendency of the proceeding under Section 125 Cr.P.C. for proper appreciation of the contentions raised by the counsel, it is necessary to state in short the factual backdrop of the case.

3. On the application filed by Smt. Sabita Sahu on 31.5.88 under Section 125 Cr.P.C. Criminal Misc. Case No. 37 of 1988 was initiated by the Judicial Magistrate, First, Class, Bhubaneswar. In the said application she alleged, inter alia, that she had married to Khirod Kumar Sahoo, an officer of the Indian Army and they had lived as husband and wife before parting. Since her husband neglected to maintain her, she filed the application claiming maintenance.

4. Khirod Kumar Sahu denied that there was any such marriage between the parties though at one stage there was negotiation for it and therefore the claim was without any basis whatsoever. During pendency of the proceeding Sabita Sahu filed an application on 1.11.89 praying for interim maintenance at the rate of Rs. 500/- per month alleging, inter alia, that she had no ostensible source of livelihood, is undergoing great hardship to meet her daily needs and the case has been pending since a year. This application was also contested by the husband. The learned Magistrate rejected the prayer for interim maintenance by his order dated 12.12.89 which was the subject matter of Criminal Revision No. 71 of 1990 before this Court. That case was disposed of by order dated 2.3.90 whereby this Court set aside the order of the learned Magistrate and directed him to reconsider the matter and pass fresh order subject to certain conditions, within the period specified in the order. Thereafter the learned Magistrate heard the parties and passed the impugned order dated 29,3.90 granting the prayer for interim maintenance and directed the husband to pay interim maintenance at the rate of Rs. 300/- per month from the date of filing of the application under Section 125 Cr.P.C. This order is challenged by the husband in Criminal Revision No. 333 of 1990. The wife filed an application under Section 125(3) Cr.P.C. for enforcement of the order of interim maintenance and prayed for issue of warrant against the husband. This prayer was not accepted by the learned Magistrate who decided to issue a notice to him first and passed the order 18.6.90 accordingly. This order is being challenged by the wife in Criminal Revision No. 328 of 1990.

5. The main thrust of the argument of Shri M.M. Sahu appearing for the husband is that the learned Magistrate clearly erred in directing his client to pay interim maintenance from the date of filing of the application under Section 125 Cr.P.C. It is his further submission that the learned Magistrate has given no specific reason way interim maintenance should be paid retrospectively. Shri Sahu has also contended that no interim order of maintenance was necessary in the facts and circumstances of the case and instead the main proceeding should have been disposed of expeditiously. It is also the contention of Shri Sahu that certain observations have been made by the learned Magistrate regarding the registered deed of marriage which, as contended by him, was not filed during the hearing of the petition for interim maintenance but has been noticed and relied upon by the learned Magistrate in the order. '

6. Shri G.S. Rath appearing for the wife, on the other hand lends full support to the impugned order and submits that considering the scope the purpose and the spirit behind the order of interim maintenance, all possible steps should be taken to avoid delay in its implementation and the amount should be realised as quickly as possible.

7. The position is not disputed before me that though Section 125 Cr.P.C. does not make any specific provision for payment of interim main tenance, the Magistrate has jurisdiction to has such order in appropriate case. It is also not in dispute that such an order which is meant primarily to avoid vagrancy and destitution to the wife cat, be passed ex parte. The controvert raised in the case relates to the date from which the order for payment of interim maintenance is to be effected. While it is the contention of Shri Sahu that ordinarily payment of interim maintenance is to be directed from the date of order or from the date of filing of the application for interim maintenance, it is the submission of Shri Rath that it is open to the Court to direct payment of interim maintenance from an anterior date, i.e. the date of fir of the application under Section 125 Cr.P.C. Shri Rath placed strong reliance on the decision of this Court in the case of Yudhistir Nayak v Smt. Rukmani Nayak, reported in 32 (1990) O.J.D. 94 (Criminal) which is also noted by the learned Magistrate.

8. I have perused the order of the learned Magistrate granting intern maintenance. It is patent from it that the learned Magistrate has not any specific reason for his direction for payment of interim maintenance from the date of filing of the application under Section 125 Cr.P.C and not from the date of the application for interim maintenance of from the date of the order. Though the position is not in dispute that the Magistrate has the competence to direct payment of interim maintenance from the date of filing of the application under Section 125 Cr.P.C. it has to be borne in mind that ordinarily the direction for payment of interim maintenance is either from the date of the order or from the date of application for interim in it If the Magistrate considering the facts and circumstances of the case before him deems it just and proper to direct that interim maintenance should be paid not from the date of the order or from the date of application for interim maintenance but from the anterior date of filing of the application under Section 125 Cr.P.C. He should discuss the reason for such direction, (his will not only convince the parties that the jurisdiction vested in him has been exercised properly and on sound judicial principles but it will also avoid criticism of arbitrariness against his order. While deciding a case it is important to determine whether the Court has the power/jurisdiction to grant the prayer of the applicant and it is equally important to exercise such power legally and properly.

9. Coming to the decision in the case of Yudhistir Nayak v. Smt. Rukmani Nayak (supra) in that case this Court discussing the facts and circumstances of the case decided not to interfere with the order of the Magistrate granting interim maintenance from the date of the application under Section 125 Cr.P.C. In the present case though the learned Magistrate has referred to the above decision in his order he has made no attempt to ascertain if the facts and circumstances in the two case's are comparable and similar. However, in view of the order I propose to pass, it is not necessary to delve further into the matter.

10. On perusal of the lower Court record, it appears that there has been some delay in disposal of the case on account of the application filed by the wife to amend her application under Section 125 Cr.P.C. to change the date of the marriage. The matter has now been set at rest by this Court in Criminal Revision No. 70 of 1990 wherein the prayer for amendment has been allowed. Now the parties are to lead evidence in support of their respective cases.

11. Considering the stage at which the proceeding stands, the purpose and the spirit behind the order for interim maintenance and the necessity to avoid unnecessary delay in finalisation of the controversy, I deem it proper to dispose of the revision petitions in the following manner :

(i) The husband Khirod Kumar Sahu will deposit a lump sum amount of Rs. 3,600/- towards interim maintenance in the Court of the Judicial Magistrate, First Class, Bhubaneswar by the 6th of November, 1990;

(ii) On the said amount being deposited, it will be open to Smt.. Sabita Sahu to withdraw the same.

(iii) The learned Magistrate will dispose of the Criminal Misc. Case No. 37 of 1988 within six weeks from the date of deposit of the aforementioned amount in the Court.

(iv) While deciding the case the learned Magistrate will not be influenced by any observation made in the order dated 29.3.80, particularly regarding the registered deed of marriage and will dispose of the case in accordance with law.

(v) The order of interim maintenance will be subject to the result of the case.

12. Both the criminal revisions are disposed of in the manner aforesaid.


***********************************************

FOLLOW 
@ATMwithDick on twitter or 
http://evinayak.tumblr.com/ (recent blog so recent cases ) 
FOR 100s of high court and supreme court cases


regards

Vinayak
Father of a lovely daughter, criminal in the eyes of a wife, son of an compassionate elderly mother, old timer who hasn't given up, Male, activist