Court:KARNATAKA HIGH COURT
Bench: JUSTICE G. Patri Basavana Goud
VEERABHADRAPPA Vs. SMT. VEDAVATHI On 7 September 1998
Law Point:
Warrant For Levying of Fine : Non-payment of Maintenance : Issuing Arrest Warrant Straight Away, Unsustainable — Maintenance amount to be recovered in manner provided for recovery of fine amount — Methods — Issue of warrant for levying of amount by attachment and sale of movable property belonging to husband — When amount not recovered in execution of said warrant, imprisonment shall be ordered — Issuing arrest warrant straight away and sending petitioner-husband to jail for period of 9 months because interim maintenance not paid — Clearly unsustainable in law — Set aside..
JUDGEMENT
The respondent filed an application under Section 125, Cr.P.C. before the JMFC, Challakere, seeking maintenance from the petitioner husband. Notice was ordered thereon to the petitioner husband. In the meantime, respondent filed an interlocutory application i.e. I.A. No. 1 seeking interim maintenance. Learned Magistrate, by his order dated 31.10.1996, granted interim maintenance of Rs. 200/- per month from the said date. Notice of I.A. No. 1 was also ordered. Petitioner husband appeared through a Counsel and filed objections. Matter was then posted from time-to-time for payment of interim maintenance and on 5.4.1997, petitioner husband filed objections to the main petition as also to the interlocutory application. It may be mentioned in this context that the petitioner husband had appeared through a Counsel on 7.12.1996, and, it was only on 5.4.1997 that he filed objections to the main petition and to the interlocutory application. Matter was then posted for enquiry from time-to-time. In the meantime, learned Magistrate straightaway issued an arrest warrant against the petitioner husband with regard to recovery of interim maintenance. On 31.7.1997, when the petitioner husband was present in Court, and when the arrest warrant issued earlier had also remained unexecuted, learned Magistrate passed the order to the following effect :
“Arrest warrant to respondent returned unexecuted.
Re-issue arrest warrant to respondent if P.F. paid. Petitioner examined PW 1. Exbts. 1 to 7 marked .Respondent present. Arrest warrant in existence. He has not paid arrears of interim maintenance from 31.10.1996 till today. He has not paid interim maintenance. Hence respondent is in default of interim maintenance from 31.10.1996 to 31.7.1997. Hence respondent convicted for default of arrears of interim maintenance of Rs .200 /-p.m. He is in arrears of 9 months. Hence respondent is convicted for 9 months’ default of arrears of interim maintenance.
Issue convict warrant against respondent.
Call on 16.8.1997.”
Petitioner husband, in this revision petition under Section 397, Cr.P.C., questions the abovesaid order.
2. At the outset, it needs to be stated that the order of granting interim maintenance by the learned Magistrate on 31.10.1996 has not been challenged by the petitioner husband. That order very much holds the field till today, making it obligatory on the part of the petitioner husband to pay the same until his objections are heard by the learned Magistrate, and until his obligation thereunder would cease only if, on hearing his objections, the I.A. comes to be dismissed. We are only concerned with the petitioner husband’s challenge to the order dated 31.7.1997 extracted above, namely, with regard to the mode of recovery of the said interim maintenance.
3. The order of payment of interim maintenance is in vogue according to the decision of the Supreme Court in Smt. Savitri v. Govind Singh Rawat, 1986 (1) RC (Cr.) 83. This is what the Supreme Court said in that regard in paragraph 6 of the judgment.
“6. In view of the foregoing it is the duty of the Court to interpret the provisions in Chapter IX of the Code in such a way that the construction placed on them would not defeat the very object of the legislation. 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. Every Court must be deemed to possess by necessary intendment all such powers as are necessary to make its orders effective. This principle is embodied in the maxim ‘ubi aliquid conceditur, conceditur et id sine quo res ipsa esse non potest’ (Where anything is conceded, there is conceded also anything without which the thing itself cannot exist). Vide Earl Jowitt’s Dictionary of English Law 1959 Edn. p. 1797). Whenever anything is required to be done by law and it is found impossible to do that thing unless something not authorised in express terms be also done then that something else will be supplied by necessary intendment. Such a construction though it may not always be admissible in the present case however would advance the object of the legislation under consideration. A contrary view is likely to result in grave hardship to the applicant, who may have no means to subsist until the final order is passed. 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 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. Having regard to the nature of the jurisdiction exercised by a Magistrate under Section 125 of the Code, we feel that the said provision 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. In taking this view we have also taken note of the provisions of Section 7(2)(a) of the Family Courts Act, 1984 (Act No. 66 of 1984) passed recently by Parliament proposing to transfer the jurisdiction exercisable by Magistrate under Section 125 of the Code to the Family Courts constituted under the said Act.”
4. It is only on the basis of what the Supreme Court said that the learned Magistrate has passed the order awarding interim maintenance, obviously, on being convinced about the prima facie case having been made out on the basis of the affidavit in support of I.A. No. 1. It is of course open to the petitioner husband to file objections to I.A. No. 1 which he has already done, and to urge through his Counsel to substantiate the contentions that he has taken in his objection statement, to convince the learned Magistrate that the interim maintenance was not liable to be paid. If the reasons that he advances were to be accepted by the learned Magistrate, I.A. No. 1 naturally comes to be dismissed. But, there can be no disputing the position that so long as the learned Magistrate passes the order dismissing I.A. No. 1, or so long as a higher Forum interferes with the said order of interim maintenance, either modifying it or setting it aside, the order of the learned Magistrate granting interim maintenance holds the field, and, there is no way the petitioner husband can escape from his liability to pay interim maintenance as ordered. It is recognising this position, that we have to proceed and as said earlier, that all that is questioned herein is the mode of recovery of the said interim maintenance.
5. Maintenance amount has to be recovered in the manner provided for recovery of the fine amount. That takes us to Section 421, Cr.P.C. One of the methods thereunder is issue of a warrant for levying of the amount by attachment and sale of any movable property belonging to the husband. It is only where the amount is not recovered in execution of the said warrant, or the whole of the amount is not recovered in execution of the said warrant, then, for the whole or any part of each month’s allowance remaining unpaid after the execution of the warrant, imprisonment shall have to be ordered which may extend to one month from each month’s allowance. But what the learned Magistrate has done by the impugned order is to straight away issue arrest warrant, and, on finding the petitioner husband in the Court, sending him to jail by way of imprisonment for a period of nine months, because the interim maintenance had not been paid for nine months. It is clearly unsustainable in law, and, it needs to be set aside, and the matter remitted to the learned Magistrate to recover the amount of interim maintenance including the arrears by first issuing warrant for attachment and sale of movable property of the petitioner husband, and, if any balance is still due, then only to resort to sentencing the husband to imprisonment as stated above.
6. Mr. Sunil, learned Counsel for the petitioner, however urges this. The mode of recovery of interim maintenance is no different from the one provided for recovery of maintenance awarded after final disposal of the application under Section 123, Cr.P.C. Therefore, even for recovery of interim maintenance, as required by the first proviso to Sub-section (3) of Section 125, Cr.P.C., the wife has to make an application. Even after such an application is made, notice of it shall have to be given to the husband to enable the husband to show cause against issue of such warrant as per Sub-section (3) of Section 125, Cr.P.C. Though not stated in so many words, the argument of Mr. Sunil would further take us to the second proviso to Sub-section (3) of Section 125, Cr.P.C. also, wherein the husband can offer to maintain his wife.
7. Mr. Sunil, learned Counsel for the petitioner, by contending as stated above, therefore submits that when the matter goes back to the learned Magistrate on the impugned order being set aside, petitioner husband should have an opportunity to convince the learned Magistrate with regard to the necessity of dismissing I.A. No. 1 on merits without the corresponding obligation on the part of the petitioner husband to pay interim maintenance in the meantime.
8. First of all, as noted at the very outset, the order of 31.10.1996 by which the learned Magistrate granted interim maintenance/has not been questioned in any Forum so far. Petitioner husband’s objections to the said order of interim maintenance by way of his objections to I.A. No. 1 are yet to be heard and a decision on I.A. No. 1 taken. If, after hearing both the parties on I.A. No. 1 on merits, learned Magistrate were to hold that I.A. No. 1 needs to be dismissed, then, from that day onwards i.e. from the day I.A. No. 1 is dismissed, the husband would be no longer under an obligation to pay interim maintenance. If the learned Magistrate were to allow I.A. No. 1 the obligation to pay interim maintenance would continue. But, what is of significance is that even if, on so hearing both the parties on merits of I.A. No. 1, if the learned Magistrate were to dismiss I.A. No. 1 on a particular day, the obligation of the husband to pay interim maintenance would cease only from that day onwards i.e., from the day I.A. No. 1 is dismissed. Notwithstanding such dismissal of I.A. No. 1, husband’s obligation to pay interim maintenance from the date it was initially ordered, until the date I.A. No. 1 was dismissed, cannot be wished away because, during that entire period, the order of interim maintenance was very much an order by a competent Court holding the field, not interfered with nor modified by any higher Forum. The said position, therefore, clearly needs to be borne in mind while appreciating the contention of Mr. Sunil, learned Counsel for the petitioner.
9. Mr. Sunil, learned Counsel for the petitioner has referred to several decisions to the effect that not only that before the husband could be imprisoned for arrears, a warrant in the manner of recovery of fine has to be issued, but also that even before such warrant is issued, he should be issued a notice to show cause as to whether, and if so, for what reasons he is not obliged to pay the amount. All of them relate to payment of maintenance as determined on final adjudication of the application under Section 125, Cr.P.C. There can be no disputing the said proposition, and, Sub-section (3) of Section 125, Cr.P.C. together with its two provisos make it absolutely clear. We are however concerned herein not with payment of maintenance as determined on final adjudication of an application under Section 125, Cr.P.C. We are herein concerned with payment of interim maintenance that is being ordered in many of the proceedings initiated under Section 125, Cr.P.C. after the decision of the Supreme Court in the case of Savitri (supra). The Supreme Court, while dispelling the apprehension that the recognition of such implied power to grant interim maintenance would lead to passing of the interim orders in a large number of cases where liability to pay maintenance may not exist, observed that 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. It was then that the Supreme Court observed that the Magistrate 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 to satisfy himself that there is prima facie case for making such an order, and, that 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. The Supreme Court observed that the affidavit maybe treated as supplying prima facie proof of the case of the applicant. It further observed that if the allegations in that 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. The Supreme Court therefore concluded that having regard to the nature of the jurisdiction exercised by a Magistrate under Section 125, Cr.P.C., such a provision 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, pending final disposal of the application.
10. From the observations of the Supreme Court referred to above, it is absolutely clear that on a prima facie case being made out, even ex parte, the Magistrate can pass an order of interim maintenance, and any such order is, as referred to by the Supreme Court in its. earlier decision in Bhagwan Dutt v. Smt. Kamla Devi, AIR 1975 SC 83 extracted in paragraph 5 of the abovesaid decision of the Supreme Court in Savitri (supra), to ensure that the neglected wife and children are not left beggared and destitute on the scrap-heap of the society and thereby driven to a life of vagrancy, immorality and crime for their subsistence. Even before the right of the application under Section 125, Cr.P.C. is adjudicated upon on merits after hearing both sides, implied power of the Magistrate to pass an order of interim maintenance on a prima facie case being made out, even ex-parte, is recognised by the Supreme Court. If that be so, it means that until the said order of interim maintenance is modified or cancelled, it needs to be complied with. Even for compliance with such an order, if an application under the first proviso to Sub-section (3) of Section 125, Cr.P.C. is insisted upon or if the husband, without compliance with such an order, is permitted to make the offer under the second proviso to Sub-section (3) of Section 125, Cr.P.C., or if, without compliance with such an order, the husband is permitted to ask for an opportunity to show sufficient cause within the meaning of Sub-section (3) of Section 125, Cr.P.C., then, it would frustrate the very object of granting interim maintenance in exercise of the implied power as recognised by the Supreme Court in Savitri (supra). It is therefore not possible to agree with the contentions of Mr. Sunil, learned Counsel for the petitioner.
11. Petition allowed. Impugned order of the learned JMFC, Challekere dated 31.7.1997 in Criminal Misc. No. 30 of 1996 is set aside. Learned Magistrate is directed to hear I.A. No. 1 on merits and to dispose it of on merits expeditiously, at any rate, within one month from the date he receives a copy of this order. Needless to say that right from the date such interim maintenance was ordered i.e. from 31.10.1996, the obligation of the petitioner husband to pay interim maintenance has continued throughout, and shall continue unless on I.A. No. 1, the said order is either modified or cancelled. Petitioner husband therefore must necessarily comply with the said order until a decision is taken on I.A. No. 1, either modifying or cancelling the order. All that needs to be stated by way of caution is that the learned Magistrate should ensure recovery of such interim maintenance from the petitioner husband by first issuing warrant for attachment and sale of movables of the petitioner husband, and, only in respect of the balance that may still remain, that the learned Magistrate shall have to resort to sentencing the petitioner husband, imprisonment as provided for in Section 125, Cr.P.C.
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