BANO Vs. ABDUL SALAM

JUDGEMENT

(1.) PETITIONER Mst. Bano has preferred this revision against the order, dated March 11, 1980 passed by the learned Sessions Judge, Jodhpur in criminal revisions No. 109 of 1979 and 116 of 1979.

(2.) BRIEFLY stated the facts for disposal of the petition are these. Petitioner Mst. Bano was married to non-petitioner Abdul Salam on 8-1-75. On 14. 6. 77, Abdulsalam turned out Mst. Bano from his house. Since then Mst. Bano and her minor son have been living with her parents. On 24-1-79, she filed a petition under sec. 125 of the Code of Criminal Procedure (hereinafter referred to as 'the Code') for maintenance and claimed a sum of Rs. 300/- per month for herself and her minor son. Non-petitioner Abdulsalam contested the application inter alia on the ground that on 12. 2. 80, he gave customary divorce to Mst. Bano and paid her a sum of Rs. 25/- as Mehar and, therefore, she was not entitled to any maintenance. The application for interim maintenance by the petitioner was opposed mainly on the ground that there was no provision in the Code to grant the same. The learned Additional Munsif and Judicial Magistrate, No. 1, Jodhpur allowed the application of the petitioner for interim maintenance and granted a sum of Rs. 100/- per month pendente lite as interim maintenance. The learned Additional Munsif and Judicial Magistrate, No. 1, Jodhpur was of the view that the proceedings under sec. 125 of the Code were civil in nature and, therefore, under inherent powers of the court, the petitioner could be granted interim maintenance notwithstanding the fact that there was no such provision in the Code. Aggrieved by the order of the learned Magistrate, the husband filed revision petition No. 109 of 1979 and the wife filed revision petition No. 116 of 1979 for enhancement of interim maintenance. The learned Sessions Judge took the view that a subordinate criminal court did not possess any inherent powers and, therefore, interim maintenance could not be granted u/sec. 125 of the Code. He accepted the revision of the non-petitioner and dismissed the application of the petitioner for grant of interim maintenance. The revision filed by the petitioner was naturally dismissed. Both the revisions were disposed of by one order. Mst. Bano by this revision has challenged the orders of the learned Sessions Judge, Jodhpur relating to both the revisions.

(3.) ON the other hand, the learned counsel for the non-petitioner argued that where mode of discharging a power is laid down by law, it must be performed in that mode or not at all. The argument is based on maxim-"expre-ssio unius ast exclusio alterius. " I have considered the rival contentions carefully. Both the maxims are well settled and difficulty lies in their application to a particular provision of law. It was thus observed in Income-Tax Officer, Cannanore v. M. K. Mohammed Kunhi (1) "it is a firmly established rule that an express grant of statutory power carries with it by necessary implication the authority to use all reasonable means to make such grant effective (Surtherland Statutory Construction, Third Edition, Article 5401 and 5402v. The powers which have been conferred by Sec. 254 on the Appellate Tribunal with widest possible amplitude must carry with them by necessary implication all powers and duties incidental and necessary to make the exercise of those powers fully effective. In Domat's Civil Law, Cushing's Edition, Vol. 1 at page 88, it has been stated: "it is the duty of the Judges to apply the laws, not only to what appears to be regulated by their express dispositions but to all the cases where a just application of them may be comprehended either within the consequences that may be gathered from it. " Maxwell on Interpretation of Statutes, Eleventh Edition contains a statement at p. 350 that "where an Act confers a jurisdiction, it impliedly also grants the power of doing all such acts, or employing such means, as are essentially necessary to its execution. Cuijuris-dictiodata est, as quoqe concease case indenture sine quicks jurisdiction expliceri non potruit. " An instance is given based on Ex Parte, Martin (1879) 4qbd 212 at p. 491 that "where an inferior court is empowered to grant an injunction, the power of punishing disobedience to it by commitment is impliedly conveyed by the enactment, for the power would be useless if it could not be enforced. " The same view is expressed in Matajog Dobey v. H. C. Bhari (2) and (3) Assistant Collector of C. E. v. N,t. Co. of India Ltd. (3 ). ON the other hand, it was thus held in Ramchandra Keshav Adke (Dead) by Lrs. vs. Govind Joti Chavare (4) - "a century ago, in Taylor v. Taylor (1875)1 Ch D 426 Jessel U. K. adopted the rule that where a power is given to do a certain thing in a certain way,the thing must be done in that way or not at all and that other methods of performance are necessarily forbidden. This rule has stood the test of time. It was applied by the Privy Council, in Nazir Ahmed v. Emperor, 63 Ind. App. 372 - (AIR 1936 PC 253 (2) and later by this Court in several cases, Shiv Bahadur Singh vs. State of U. P. (1954) SCR 1098- (AIR 1954 SC 322=1954 Cr. L. J. 910): Deep Chand vs. State of Rajasthan (1962) SCR 662= (AIR 1961 SC 1527=1961 (2) Cr. L. J. 705) to a Magistrate making a record under secs. 164 and 364 of the Code of Criminal Procedure, 1898. This rule squarely applies "where, indeed, the whole aim and object of the legislature would be painly defeated if the command to do the thing in a particular manner did not imply a prohibition to do it in any other. Maxwell's Interpretation to do it in any other. Maxwell's Interpretation of Statutes, 11th Edn. pp. 362-363"