The Kerala High Court recently comprising of a bench of Justice Anil K. Narendran and Justice P.G. Ajithkumar reiterated that in the absence of any express bar or prohibition, Section 125 Cr.P.C. could be interpreted as conferring power by necessary implication to make interim order of maintenance subject to final outcome in the application. (MK Geevarghese versus Mariam Gheevarghese)
Facts of the case
In the instant case, the petitioner was aggrieved by the interim order of maintenance passed by the Family Court in a plea filed u.s 7 of the Family Courts Act of 1984 seeking payment of future maintenance following the dissolution of the petitioner’s marriage.
Contention of the Parties
The learned Counsel appearing for the petitioner submitted that considering the monthly income being derived, the petitioner is not in a position to pay such an amount. He has to look after his second wife, daughter, step son and mother in law. He is getting only pension now, having he retired voluntarily from service in the year 2019.
The learned Counsel appearing for the petitioner raised a legal contention that what the respondent can claim is maintenance as provided under Section 125 of the Code of Criminal Procedure, 1973, by operation of Section 7(2) of the Family Courts Act, and therefore, the Family Court is not empowered to order payment of interim maintenance. The learned Counsel placed reliance on the decision in Abhilasha v. Prakash and others [AIR 2020 SC 4355] in order to fortify that contention.
On the other hand, the learned Counsel appearing for the respondent contended that the petitioner at the time of retirement received a huge amount. He retired as a Scientist, and therefore, his monthly pension is much more than what is stated by him. When he has unhesitantly been maintaining his present wife, daughter, step son and mother in law, he cannot refuse to pay appropriate amount towards monthly maintenance of his daughter, the respondent, who is a medical student.
Courts Observation and Judgment
The bench at the very outset took note of the case of Shaila Kumari Devi v. Krishnana Bhagwan Pathak [(2008) 9 SCC 632] and observed, "the Apex court held that so far as 'interim' maintenance is concerned, it is true that Section 125 of the Code as it originally enacted did not expressly empower the Magistrate to make an order directing payment of interim maintenance. But the Code equally did not prohibit the Magistrate from making such an order. Now, having regard to the nature of proceedings, the primary object to secure relief to deserted and destitute wives, discarded and neglected children and disabled and helpless parents and to ensure that no wife, child or parent is left beggared and destitute on the scrap-heap of society so as to be tempted to commit crime or to tempt others to commit crime in regard to them, it was held that the Magistrate had 'implied power' to make orders to pay interim maintenance. The jurisdiction of the Magistrate under Chapter IX (Order for Maintenance of Wives, Children and Parents) is not strictly criminal in nature. Moreover, the remedy provided by Section 125 of the Code is a summary remedy for securing reasonable sum by way of maintenance."
The bench at the very outset observed, "The contention of the petitioner is that the respondent being the daughter can claim maintenance as provided under Section 7(2) of Family Courts Act alone. Section 7(2) enables a daughter to claim maintenance under Section 125 of the Code. As per Section 125(1)(b) of the Code an unmarried daughter who has physical or mental abnormality or injury whereby unable to maintain herself alone can claim maintenance. Whether the respondent is entitled to claim maintenance under common law or under Section 125 of the Code alone is a matter to be decided by the Family Court at the time of final adjudication. The claim of the respondent for maintenance is a pending consideration of the Family Court. Till such time the original petition is decided, the petitioner being the father has to pay interim maintenance to his daughter, the respondent, who is pursuing her studies in medicine."
The bench dismissing the petition noted, "Rs.15,000/- per month is the interim maintenance ordered to be paid. The respondent being a medical student, her expenses include not only what is required for mere sustenance, but also educational and also other expenses. Considering the status and financial conditions of the parties, we are of the view that the interim maintenance at the rate of Rs.15,000/- is not exorbitant.
In such circumstances, we refrain from interfering with the impugned order in exercise of the jurisdiction of this Court under article 227 of the Constitution of India. This Original Petition is accordingly dismissed."
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