2011 Supreme(Bom) 765

2011 ALL MR (Cri) 2401
In the High Court of Bombay at Nagpur
JUSTICE A.P. BHANGALE
Dr. Shahid Rizwan Khan s/o Mohd. Ibrahim Khan
Versus
Masoor w/o Dr. Shahid Rizwan & Others
CRIMINAL APPLICATION NO. 1588 OF 2010
Decided on: 07-07-2011

Headnote:Criminal Procedure Code, 1973-Section 125-Claim for maintenance-Interim order-Court, exercising jurisdiction under Section 125 of Code, every details of procedure need not be provided-Procedure consistent with justice and actuated by exigencies of situation can be adopted even in absence of any specific provision in statute governing or conferring jurisdiction to award maintenance-Judicial Magistrate Ist class and Family Court exercising jurisdiction under Section 125 of Code have jurisdiction to pass an order directing payment of maintenance, pending final disposal of petition filed under Section 125 of Code.-There is an inherent jurisdiction in a Civil Court to pass ex parte orders and ex parte interim orders in aid of the main relief in order to protect the interest of the party who approaches the Court and/or to protect the subject-matter of the suit, in order to ensure that the relief which the party will be granted in the suit or a proceeding is not rendered infructuous. Thus, in aid of the final relief, an interim ex parte order can be granted. That it is so cannot at all the doubted. In the absence of such power the very jurisdiction to pass final order in many cases would be rendered ineffective. When the Court has jurisdiction to pass final order, the power to pass interim order stems from the very power to pass final order. Such a power is necessarily concomitant of the power to order maintenance. In the absence of such a power, the jurisdiction will not be meaningful and effective. A person approaches the Court for maintenance because he or she as the case may be, is not in a position to maintain himself or herself. If such a person is required or made to wait for a considerable time and he has to be told only after a lapse of considerable period that he or she is entitled to certain amount of maintenance, how such a person could carry on and live to know the decision of the Court which may take place in some cases several years. Such a situation would either result in miscarriage of justice or failure of justice. An interim order can also be modified, dissolved or vacated after hearing the respondents. Even the final order can be altered in the circumstances stated in Section 127 of the Code. It is not possible to hold that the Court has no power to revise the interim order. That being the position, the fact that Section 125 of the Code does not specifically provide for revision of the interim order, cannot be of any relevance. Further when it is the Court, whether Criminal or Civil, that exercises the jurisdiction, every details of the procedure need not be provided. The procedure consistent with justice and actuated by exigencies of the situation can be adopted even if there is no specific provision is provided in the statute governing or conferring the jurisdiction to award maintenance. In addition to this, it is not the Criminal Court that exercises the jurisdiction. It is a Civil Court that exercises the jurisdiction exercisable by the Court of the Judicial Magistrate 1st Class. As a matter of fact, Chapter IX of the Code does not relate to any criminal matter and it is certainly not punitive. It deals with civil liabilities only. In order to ensure expeditious decision so that a person in need of maintenance is able to get it expeditiously within a short period, the subject of maintenance of wives, children and parents is included in the Code. The Judicial Magistrate 1st Class and the Family Court exercising jurisdiction under Section 125 of the Code in the light of the provisions contained in Section 7(2)(a) of the Family Courts Act have jurisdiction to pass an order directing payment of maintenance, pending final disposal of the petition filed under Section 125 of the Code.

       Criminal Procedure Code, 1973-Section 125-Maintenance-Interim maintenance-Ex parte order-Court vested with an undoubted jurisdiction to pass an ex parte order of interim maintenance-Said jurisdiction to be exercised on being prima facie satisfied that there is a case for granting interim maintenance-At interim stage, Court need not conduct a mini-trial of petition for maintenance.-The Court has an undoubted jurisdiction to grant an ex parte order of interim maintenance. That jurisdiction has to be exercised on being prima facie satisfied that there is a case for granting interim maintenance. The Supreme Court in the aforesaid decision has indicated that the Magistrate may however, insist upon the affidavit filed on behalf of the applicant concerned stating the ground to satisfy himself that there is a prima facie case for making such an ex parte order of interim maintenance. It is the common experience that considerable time is spent in the service of notice. Especially in maintenance matters, the attempt of the respondent husband would be to avoid service of notice and see that the matter is prolonged on the assumption that until the notice is served on him to interim or final order can be passed by a Court. This has also resulted in the pendency of several petitions over the years without the notice being served. When there is a jurisdiction in the Court to pass an ex parte order in aid of the final relief sought for in the petition and the person seeking interim relief makes out a prima facie case for maintenance, there is no jurisdiction whatsoever to hold that even in such cases no ex parte order of interim maintenance could be passed. Interim order of maintenance can always be revised on the respondent applying for it. In that event, the Court can hear both the sides and decide as to what should be the appropriate amount of interim maintenance pending disposal of the main petition. At the interim stage, the decision is upon prima facie view of the matter. The Court need not conduct a mini trial of the petition for maintenance. The matter can be decided on affidavits and records, if any, produced by the parties.