MOHD TAJ Vs. SAKINA BI

JUDGEMENT

(1.) DURING the pendency of a petition seeking maintenance under Sec. 488 Cr. P. C., the wife, respondent herein, applied for interim relief. She supported her application for interim relief with an affidavit in which it was deposed that her husband, the petitioner herein, had refused and neglected to maintain her & that he being a Government Servant had sufficient means to maintain her, while she had no independent source of income to support her. The application was resisted and objections were filed. The learned Judicial Magistrate 1st Class, Mendhar, however, after hearing the parties vide order dated 8 -5 -1986, allowed the application for grant of interim maintenance and directed the petitioner -husband to pay Rs. 80/ - p. m. as interim relief during the pendency & till the final disposal of the main petition. Aggrieved, the petitioner husband filed a revision before Sessions - Judge, Poonch who has made recommendation to this court vides order dated 21 -7 -1986 to set aside the order of the Judicial Magistrate 1st Class, Mendhar dated 8 -5 -1986. In the opinion of the Sessions Judge the order of the Judicial Magistrate granting interim relief was illegal because on order for interim relief is envisaged in proceedings under Sec 488 Cr. P. C. According to the learned Sessions Judge, since there is no provision in the Code of Criminal procedure which authorises the magistrate to make an order for interim relief during the pendency of the application for maintenance under section 488 Cr. P. C , the Judicial Magistrate, Mendhar, could not on "the basis of natural justice" grant interim relief.

(2.) THE parties had been served but have not appeared and this reference is therefore, being disposed of on the basis of the record. For the reasons which follows this reference needs to be rejected, the revision petition filed by the petitioner before the Sessions Judge dismissed & the order of the Judicial Magistrate dt. 8 -5 -86 upheld,

(3.) CHAPTER XXXVI of the code of Criminal procedure which deals with the "maintenance of wives & Children" provides a mode of preventing vagrancy. These provisions as held in Bhagwan Datt Vs. Kamla Devi -AIR 1975 SC 83, are "intended to fulfill a social purpose. Their object is to compel a man to perform the moral obligation which he owes to society in respect of his wife & children, while providing a simple, speedy but limited relief they seek to ensure that the neglected wife & children are not left beggared & destitute on the scrap - -heap of society & thereby driven to a life of vagrancy, immorality and crime for their subsistance. "The courts have, therefore, to interpret the provisions of Sec. 488 so as to advance the object of the provisions contained in Chapter XXXVI of the Code. Indeed, there is no express provision in the code authorising the Magistrate to make an order directing payment of maintenance during the pendency of an application under section 488. such a power however, has to be implied to be vested in the Magistrate having regard to the nature of the proceedings under section 488 Cr. P. C. which confers power on an magisttrate to direct a person having sufficient means but who neglects or refuses to maintain his wife or his legitimate or illegitimate child unable to maintain itself,upon proof of such neglect or refusal to pay a monthly allowance for the maintenance of his wife or such child at such monthly rate not exceeding Rs 500/ - in the while as the magistrate thinks fit. Such allowance is payable from the date of the order, or if so ordered, from the date of the application for maintenance.