DAVIS Vs. THOMAS

JUDGEMENT

(1.) The common petitioner in both the writ petition as well as the revision petition is the son the common respondent-Thomas. The said respondent is the 78 year old father of the petitioner. In the year 2004 he filed M.C. No. 349/2004 against the revision petitioner seeking maintenance under Section 125 Cr.P.C. at the rate of Rs. 5000/- per month. On 01-03-2005 the Family Court passed an interim order (produced as Ext.P2 in the Writ Petition) directing the revision petitioner to pay interim maintenance at the rate of Rs. 300/-. Subsequently, the Family Court passed the final order on 26-02-2007 awarding maintenance at the rate of Rs. 1000/- per month from the date of petition after striking off the defence of the revision petitioner/respondent for the reason that he failed to pay the interim maintenance ordered on 01-03-2005. The writ petition is directed against the order dated 01-03-2005 awarding interim maintenance. The Crl.R.P. is filed challenging the final order for maintenance.

(2.) There is no dispute that the respondent/father had not filed any written application for interim maintenance either along with or subsequent to the filing of the M.C. which is the application for maintenance. After the amendment of the Cr.P.C. with effect from 24-09-2001, there cannot be any dispute that an order for interim maintenance can be passed only if there is an application for the same. This is indicated by the 2nd and 3rd provisos to Section 125(1) Cr.P.C. which read as follows:

(3.) Even before the above amendment of the Cr.P.C. and at a time when there was no enabling provision to award interim maintenance under Section 125, the Apex Court in Savithri v. Govind Sing, 1986 CrLJ 41 held that an order for interim maintenance could be granted even without any enabling provision in the Cr.P.C. but held that even in such case the Magistrate should insist upon an affidavit to be 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. It was further observed that if the allegations in the affidavit are not true, it is always open to the person against whom such an order for maintenance is made to show that the order was unsustainable. Any way, now after the 2001 amendment of the Cr.P.C. the position is very clear that there should be a written application for interim maintenance. Hence, the order for interim maintenance passed without any written application in that behalf is quashed.