SAVITRI Vs. GOVIND SINGH RAWAT

JUDGEMENT

(1.) The short question which arises for consideration in this case is whether a Magistrate before whom an application is made under S. 125 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'the Code') can make an interim order directing the person against whom the application is made under that section to pay reasonable maintenance to the applicant concerned pending disposal of the application.

(2.) In the instant case, the petitioner was an applicant under S. 125 of the Code before the Metropolitan Magistrate, Delhi. In her application, she prayed for an order against her husband directing him to pay maintenance to her. Immediately after she filed the said application, she made another application before the Magistrate for an interim order directing her husband to pay some reasonable sum by way of maintenance pending disposal of the main application. The learned Magistrate declined to make such an interim order on the ground that there was no express provision in the Code enabling a Magistrate to pass such an order. Aggrieved by the said order the applicant has filed this special leave petition under Art. 136 of the Constitution.

(3.) It is true that there is no express provision in the Code which authorises a Magistrate to make an interim order directing payment of maintenance pending disposal of an application for maintenance. The Code does not also expressly prohibit the making of such an order. The question is whether such a power can be implied to be vested in a Magistrate having regard to the nature of the proceedings under S. 125 and other cognate provisions found in Chapter IX of the Code which is entitled "Order For Maintenance of Wives, Children and Parents". S. 125 of the Code confers power on a Magistrate of the first class to direct a person having sufficient means but who neglects or refuses to maintain (i) his wife, unable to maintain herself, or (ii) his legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or (iii) his legitimate or illegitimate child (not being a married daughter) who has attained majority, where such child is, by reason of any physical or mental abnormality or injury unable to maintain itself or (iv) his father or mother, unable to maintain himself or herself, upon proof of such neglect or refusal, to pay a monthly allowance for the maintenance of his wife or such child, father or mother, as the case may be, at such monthly rate not exceeding five hundred rupees in the whole as such Magistrate thinks fit. Such allowance shall be payable from the date of the order or, if so ordered from the date of the application for maintenance. S. 126 of the Code prescribes the procedure for the disposal of an application made under S. 125. S. 127 of the Code provides for alteration of the rate of maintenance in the light of the changed circumstances or an order or decree of a competent civil Court. S. 128 of the Code deals with the enforcement of the order of maintenance. It is not necessary to refer to the other details contained in the abovesaid provisions.