JEET RAM Vs. SWAMO DEVI

JUDGEMENT

(1.) The Short point requiring determination in this case is as to whether the proceedings under section 488 of Cr. P.C. can be disposed of in a summary manner without holding proper enquiry in terms of sub section (1) read with sub section (6) of section 488 of Cr. P.C. The facts giving rise to the filing of the present revision petition are that respondent-wife filed an application against the petitioner-husband for the grant of maintenance in the trial court of SubJudge, Jammu. After getting the objections of the respondent, the trial Magistrate appears to have recorded the statements of the parties on 9-4-1988 for the purposes of ascertaining the possibility of re-conciliation and passed the impugned order without affording them any opportunity of leading evidence or of being heard.

(2.) The Purpose and object of the proceedings for maintenance is to prevent vagrancy by compelling the husband or the father to support his wife or child enable to support itself. The section does not give a licence to the wife to abandon the matrimonial home and insist for the payment of maintenance without there being sufficient grounds. The provisions are intended to serve a social purpose by insisting upon the unit of the family and cordial relations between the father, the mother and the child. The section is not intended to punish the husband or the father without adopting due course of law. In cases of emergency, the courts have the powers to grant interim maintenance as was held by the Supreme Court in case Smt Savitri v. Govind Singh Rawat (A.I.R. 1986 Page 984) that having regard to jurisdiction exercised by a Magistrate in proceedings in the determination of maintenance to a wife the provisions have to be interpreted as conferring power by necessary implication upon 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. The Magistrate in appropriate cases may insist for some evidence before exercising such a power. Such an order in appropriate cases may be passed exparte, pending service of the notice and subject to objections or modification. However, the grant of interim maintenance does not absolve the court of holding an enquiry and decide the application according to the procedure established by law. It is true that the application under Section, 488 of Cr. P.C. cannot be equated with the complaint nor a charge sheet, but the word Judicial Magistrate of the 1st Class may upon proof of such a neglect or refusal clearly shows that the wife or the child approaching the court are under an obligation to prove the neglected and refusals in order to be entitled to the grant of maintenance allowance. The courts are under legal obligation to determine the potential paying capacity of the husband or the father and the extent of requirements of the claimants. The proceedings even though not equated with trial of an offence; yet are proceedings of a civil nature. No court can therefore, dispose of the main petition without holding an enquiry by affording the parties opportunity to lead evidenced of being heard the instant case, the Trial Court has adopted a procedure un-authorised by law. The impugned orders passed by the Trial Magistrate on 25th of April, 1988 and that of 1st Additional District and Session Judge, Jammu on 27/9/1988 being contrary to the provisions of law are liable to be set-aside. The revision petition is accepted and the orders impugned are set-aside.

(3.) The petitioner-wife had filed an application in the Trial Court on 8/1/1988 for the grant of intern maintenance in which the other side had filed the objections. The application of the petitioner is supported by an affidavit. The learned counsel for the respondent -wife has submitted that the orders impugned may be treated to have been passed in the application for the grant of interim maintenance. The learned counsel for the husband has no objections provided the amount awarded is reduced from three hundred to two hundred per month and made payable with effect from the date of the application for interim maintenance. On the request of the learned Counsel for the parties, it is directed that the respondent-wife shall be entitled to the payment of Rupees two hundred per month as interim maintenance during the pendency of the proceedings with effect from 8/1/1988. This also disposes of Cr. M.P. No. 236/88.