SAVITRI W/O SHRI GOVIND SINGH RAWATversusSHRI GOVIND SINGH RAWAT

                                                                     615

                                                                           A

                  SAVITRI W/O SHRI GOVIND SINGH RAWAT
                                   v.
                        SHRI GOVIND SINGH RAWAT

                              OCTOBER 9, 1985                              B

              [E,S, VENKATARAMIAH AND R,B. MISRA, JJ,]

      Code   of    Criminal    Procedure,   1973,   s.   125 -   Whether
Magistrate can grant interim maintenance.
                                                                           c
      The petitioner filed an application under s. 125 of the
Code of Criminai Procedure, 1973 before the Magistrate for an
order against her husband directing him to pay maintenance.
Thereafter she filed another application for an interim order
directing her husband to pay a reasonable sum bY way of
maintenance pending disposal of the main application. The                  D
Magistrate declined to make an interim order on the ground that
there was no express provision in the Code enabling a Magistrate
to pass such an order.

      The petitioner filed special leave petition in this Court.
                                                                           E
      Disposing of the petition,

        lll!Lll : 1. There is no express provision in the Code which
 authorises a Magistrate to make an interim order directing pay-
' ment of maintenance pending disposal of an application for
 maintenance. The Code does not also expressly prohibit the making
  of such an order. (617 E]                                                F

      2. Tlie provisions contained in ss. 125, 126, 127 and 128 of
the Code of Civil Procedure 1973 show that they are intended to
provide for a preventive remedy for securing payment of
maintenance which can be granted quickly and in deserving cases
with effect from the date of the application itself, (618 CJ               G

      3. The rate of maintenance that can be awarded under the
Code is limited even though under the law governing the parties a
competent civil court may order payment of a larger sum in
appropriate cases. The civil courts have inherent power to grant
interim maintenance pending disposal of the suit for maintenance.
(618 C-il]                                                                 H

      4, The jurisdiction of a Magistrate under Chapter IX of the
Code is not strictly a criminal jurisdiction. While passing an
         616              SUPREME COURT REPORTS       [1985] SUPP.3 s.c.R.


A        order under that Chapter asl<ing a person to pay maintenance to
         his wife, child or parent, the Magistrate is not imposing any
         punishment on such person for a crime committed by him. Chapter
         IX of the Code contains a sUllliilary remedy for securing some
         reasonable sum by way of n.aintenance, subject to a decree, if
         any, which may be made in a civil court in agiven case provided
B        the Personal I.aw applicable to the person concerned authorises
         the enforcement of any such right to lllllintenance. The Code,
         however, provides a quick remedy to protect the applicant against
         starvation and to tide over immediate difficulties. Chapter IX of
         the Code does not in reality create any serious new obligation.
          (618 E-G]

C              5. It is the duty of the Court to interpret the provisions
         in Chapter lX of the Code in such away that the construction
         placed on them would not de.feat the very object of the legis-
         lation. In the absence of any express prohibition, it is appro-
         priate to construe the provisions in Chapter IX as conferring an
                                                                              •
         implied power to the Magistrate to direct the person against whom
         an application is made under s. 125 of the Code to pay some
o        reasonable sum by way of maintenance to the applicant pending
         final disposal of the application. (619 E-G)

               Sbri llbagwm Dutt v. Smt. 1a1o1a Devi anc1 Anr., I 19 75 J 2
         S.C.R. 483 at 486, relied upon.

E              6. There is no room for apprehension that recognition of
         such implied power would lead to the passing of interim orders in
         a large number of cases where the liability to pay maintenance
         my not exist. It is quite possible that such contingency may
         arise in a few caaes but the prejudice caused thereby to the
         person against whom it is made is minimal as it can be set right
F        quickly after hearing both the parties. The Magistrate may,
         however, insist upon an affidavit being 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 ~ case for making such an order. If a Civil Court can
         pass such interim orders on affidavits, there is no reason why a
    G    magistrate should not rely on them for the purpose of issuing
         directions regarding payment of interim maintenance. (620 C-£)

                CRIMINAL APPELLATE JURISDICTION : Special Leave Petition
          (Criminal) No. 1028 of 1984,

    ij         From the Order dat"d U. l.1984 of the           Metropolitan
          Magistrate, New Delhi in Ca&e No. 41/1 of 1983,
          SAVITRl v • GOVIND SINGH [VENKATARAMIAH, J, ]       617

                                                                     A
     Ms. Bina Gupta for the Petitioner.

      The Judgment of the Court was delivered by

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

      In the instant case, the petitioner was an applicant ,under
                                                                     c
section 125 of the Code before the ,Metropolitan Magistrate,
Delhi. In her application, she prayed for an order against her
husband directing ltim to pay maintenance to her. Iumediately
after she filed the said application, she made another
application before the magistrate for an interim order directing
                                                                     D
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 application
has filed this special leave petition under Article 136 of the
                                                                     E
Constitution.

       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
                                                                         F
implied to be vested in a magistrate having regard to the nature
of the proceedings under section 125 and other cognate provisions
found in Chapter IX of the Code which is entitled "Order For
Maintenance of Wives, Children and Parents". Section 125 of the
Code confe.rs power on a magistrate of the first class to direct a
person having sufficient means but who neglects or refuses to
                                                                         G
maintain (i) his wife, unable to maintain hereself, 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
                                                                         H
proof of such neglect or refusal, to pay a monthly allowance for
    618              SUPREME COURT REPORTS       [1985] SUPP.3 s.c.R.


A   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. Section 126 of
    the Code prescribes the procedure for the disposal of an
B   application made under section 125. Section 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. Section 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 above said provisions.

c         A reading of the above provisions shows that they are
    intended to provide for a preventive remedy for securing payment
    of maintenance which can be granted quickly and in deserving
    cases with effect from the date of the application ltself. The
    rate of maintenance that can be awarded is also limited even
    though under the law governing the parties a competent civil
    court may order payment of a larger sum by way of maintenance in
D   appropriate cases. The civil courts have inherent.power to grant
    interim maintenance pending disposal of the suit for maintenance.
    The point for consideration is whether the magistrate can also
    make such an interim order or not.

          The jurisdiction of a magistrate under Chapter IX of the
E   Code is not strictly a criminal jurisdiction. While passing an
    order under that Chapter asking a person to pay maintenance .to
    his wife, child or parent, as the case may be, the magistrate is
    not imposing any punishment on such person for a crime committed
    by him. Chapter IX of the Code contains a summary remedy for
    securing some reasonable sum by way of maintenance, subject to a
F   decree, if any, which may be made in a civil court in a given
    case provided the Personal I.aw applicable to the person concerned
    authorises the enforcement of any such right to maintenance. The
    Code, however, provides a quick remedy to protect the applicant
    against starvation and to tide over immediate difficulties.
    Chapter IX of the Code does not in reality create any serious new
G   obligation unknown to Indian social life. In Shri Bbagwau Dutt v.
    Smt, Kamla Devi and Anr., [1975] 2. s.c.R. 483 at 486,this Court
    has explained the object of sections 488, 489 and 490 of the Code
    of Criminal Procedure, 1898 which are replaced by the provisions
    in Chapter IX of the Code thus :

               "Sections 488, 489    and   490 constitute one family.
           SAVITRI v. GOVIND SINGH [VENKATARAMIAH, J.]       619


          They have been grouped together in Chapter XXXVl of
          the Code of 1898 under the caption "Of the maintenance    A
          of wives and children". This chapter, in the words of
          Sir James Fitzstephen provides "a mode of preventing
          vagrancy, or at least of preventing its consequences".
          These provisions are intended to fulfil a social
          purpose. Their object is to compel a man to perform
          the moral obligation which he owes to society in          B
          respect of his wife and children. By providing a
          simple, speedy but limited relief, they seek to ensure
          that the neglected wife and children are not left
          beggared and destituted on the scrap-heap of society
          and thereby driven to a life of vagrancy, immorality
          and crime for their subsistence. Thus, section 488 is     c
          not intended to provide for a full and final deter-
          mination of the status and personal rights of the
          parties. The jurisdiction conferred by the section on
          the Magistrate is more in the nature of a preventive
          rather than a remedial jurisdiction; it is certainly
          not punitive. As pointed out in Thmpson's case 6 NWP      D
          205 the scope of the Chapter XXXVI is limited and the
          Magistrate cannot, except as thereunder provided,
          usurp the jurisdiction in matrimonial disputes
          possessed by the civil courts. Sub-section (2) of
          section 489 expressly makes orders passed under
          Chapter XXXVl of the Code subject to any final adjudi-    E
          cation that may be made by a· civil court between the
          parties regarding their status and civil rights."

     In view of the foregoing it is the duty of the   ' court to
interpret the provisions in Chapter IX of the Code in such a way
that the construction placed on them would not defeat the very
object of the legislation. In the absence of any express prohibi-   F
tion, it is appropriate to construe the provisions in Chapter IX
as conferring an implied power on the magistrate to direct .the
person against whom an application is made under section 125 of
the Code to pay some reasonable sum by way of maintenance to the
applicant pending final disposal of the application. It is quite
common that applications made under section 125 of the Code also
                                                                    G
take several mo!'ths for being disposed of finally. In order to
enjoy the fruits of the proceedings under section 125, the
applicant should be alive till the date of the final order and
that the applicant can do in a large number of cases only if an
order for payment of interim maintenance is passed by the court.
Every court must be deemed to possess by necessary intendment all
                                                                    H
    620               SUPREME CO\)RT REPOR'I&     [1985] Su1'P.3 s.c.R.

    such powers as are necessary to make its orders effective. This
A   principle is embodied in the mal<itn '.!!£!. aliquid conceditur,
    conceditur et ~ ~ quo ~ ipsa ~ ~ potest (Where
    anything is conceded, there is conceded also anything without
    which the thing itself cannot exist.) (Vide Earl Jowitt's
    Dictionary of English Law 1959 E.cln. F.1797). llhenever anything is
    required to be done by law and it is found itnpossible to do that
B   thing unless s0tnething not authorised in express tenns be also
    done then that something else will be supplied by necessary
    intendtnent. Such a cons true tion thoush it may not always be
    adtnissible in the present case however would advance the object
    of the legislation under consideration. A contrary view is likely
    to result in grave hardship to the applicant, who may have no
    means to subsist until the final order is passed. There is no
C   room for the apprehension that the recognition of such itnplied
    power would lead to the passing of interitn orders in a large
    number of cases where the liability to pay maintensnce may not
    exist. It is quite possible that such contingency may arise in a
    few cases but the prejudice caused thereby to the person against
    whom it is tnade is tninimal as it can be set right quickly after
    hearing both the parties. The magistrate, may, however, insist
D   upon an affidavit being filed by or on behalf of the applicant
    concerned stating the grounds in support of the claitn for interitn
    maintenance to satisfy himaelf that there is a pritna ~ case
    for making such an order. Such an order may also be made in an
    appropriate case ~ ~ pending service of notice of the
    application subject to any tn0d1fication or even an order of
E   cancellation that may be passed after the respondent is heard. If
    a civil court can pass such interitn orders on affidavits, there
    is no reason why a magistrate should not rely on them for the
    purpose of issuing directions regarding payment of interitn
    maintenance. The affidavit tnay be treated as supplying pritna
    facie proof of the case of the applicant. If the allegations in
F   the application or the affidavit are not true, i t is alWl!ys open
    to the person against wh0tn such an order is tnade to show that the
    order is unsustainable. Having regard to the nature of the juris-
    diction exercised by a tnagistrate under section 125 of the Code,
    we feel that the said provision should be interpreted as conferr-
    ing power by necessary implication on the mabistrate to pass an
G   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 there pending final
    disposal of the application. In taking this view we have also
     taken note of the provisions of section 7 (2){a) of the Fatnily
    Courts Act, 1984 (Act No. 66 of 1964) passed recently by Parlia-
H
          SAVIT!U v. GOVIND SI~G!i [VE.hliA'IARAMli\li, J. J   621


ment proposing to transfer the jurisdiction exercisable by
magistrates under section 125 of the Code to the Fand.ly Courts      A
constituted under the said Act.

     The above opinion according to us is based on the true
construcHon of the relevant provisions of the Code. lie are,
however, informed that the dispute regarding maintenance is now      i;
finally settled between the parties. hence no further orders are
necessary in this case. The petition is accordingly disposed of.




A·P .J,