Setting exparte in intrime maintenance is Valid ?


Crl. R. Nos. 256 and 257 of 1987

Bench: JUSTICE S.C. Mohapatra

SABITRI THAKRA ORS. On 28 March 1991



These two revisions arise out of a proceeding under Section 125, Cr.P.C.

2. Opposite party No. 1 is wife and opposite, party Nos. 2 and 3 are minor daughters of petitioner. In the proceeding for maintenance they filed an application for interim maintenance. By order dated 1.10.1986, trial Court directed petitioner to pay interim maintenance at the rate of Rs. 150/- per month where it was directed that on failure to comply with the order, petitioner would not be allowed to contest the case. After one month when order was not complied with by petitioner, opposite parties filed an application to give direction to petitioner to pay the same. Petitioner submitted that with object of challenging the order he has not complied with the same but in spite of application, certified copy has not been supplied till then. Learned Magistrate held that withholding of interim maintenance which is granted to avoid vagrancy and destitution would frustrate the purpose and accordingly, rejecting submission of petitioner, he ordered to set petitioner ex-parte and proceeding was posted for ex-parte hearing. Against the said order, Criminal Revision No. 257 of 1987 has been filed.

3. After ex-parte hearing, order dated 4.2.1987 was passed directing payment of maintenance at Rs. 400/- per month against which Criminal Revision No. 256 of 1987 has been filed.

4. In spite of absence of provision for grant of interim maintenance in a proceeding under Section 125, Cr.P.C., Courts can grant the same in just circumstances. See AIR 1986 SC 984, Smt. Savitri v. Govind Singh Rawat, (1989) 20 OCR 687, Yudhistir Nayak v. Smt. Rukmani Nayak, (1989) 2 OCR 84, Madhab v. Minamani Das and Another, 1986 (1) OLR 558. Smt. Sulochana Sahu v. Baman Ch. Sahu. Where a party feels aggrieved, he should be given a chance to approach higher forums to vindicate his grievance. Rigidity in insisting upon compliance of the order by creating circumstances for which such party cannot express his grievance is not a fair play. Trial Court ought to have examined if petitioner was supplied with a certified copy on his complying with the formalities before implementing the formalities. To avoid vagrancy and destitution, a method should not have been adopted which prevents a party from expressing his grievance.

5. Direction setting petitioner ex-parte is grievance of petitioner as learned Magistrate has no power to pass an ex-parte order except the grounds provided for in Section 326(2) Proviso which reads as follows :

“126. Procedure :

(1) xxx xxx xxx

(2) All evidence in such proceedings shall be taken in the presence of the person against whom an order for payment of maintenance is proposed to be made or, when his personal attendance is dispensed with, in the presence of his pleader, and shall be recorded in the manner prescribed for summons cases.

Provided that if the Magistrate is satisfied that the person against whom an order for payment of maintenance is proposed to be made is wilfully avoiding service, or wilfully neglecting to attend the Court, the Magistrate may proceed to hear and determine the case ex-parte and any order so made may be set aside for good case shown on an application made within three months from the date thereof subject to such terms including terms as to payment of costs to the opposite party as the Magistrate may think just and proper.”

6. Non-compliance of order to pay interim maintenance is not a situation envisaged to pass ex-parte order. Specific provision for ex-parte order having been made by Parliament, there is no scope for Courts to read into the provision something which is not consistent with the language of the said provision. Power to set a party ex-parte is not ancillary to exercise main power. Civil Courts might have jurisdiction in just cases to impose restriction on defaulting husband from contesting in exercise of inherent power. Such power has not been vested in criminal Courts since inherent power is vested with High Courts only under Section 482, Cr.P.C. Same principle is not possible to be applied to proceedings before Criminal Courts.

7. Giving opportunity of being heard in a principle of natural justice which is to be followed unless statutory provision leads to a conclusion otherwise. In this view of the matter, I am inclined to hold that drastic power to take away the right to defend ought not to be invoked unless language of the statute does not envisage the same.

8. I might have considered to think differently if the persons who were given interim maintenance would not have any remedy to realise the same. Such order for interim maintenance can be executed like a final order for maintenance. Courts can execute the order promptly to give relief to eradicate vagrancy or destitution.

9. So far as wives to whom maintenance is ordered to be paid, difficulties have been removed by the Committee for implementing Legal aid schemes constituted by Central Government headed by a Sitting Judge of Supreme Court which is known as CILAS. It has intimated the Orissa State Legal Aid and Advice Board in letter dated 29.9.1989 that to cover the difficult period from the institution of proceedings for matrimonial maintenance from a husband, wife can be paid financial assistance in deserving cases by the State Board upto a ceiling of Rs. 300/- per month for a maximum period of six months with order of Court. Implementation of the scheme is simple. Wife who has an order for getting maintenance in her favour is to make an application to the Court for getting the financial assistance from the State Legal Aid Board. Court is to examine the justification of the prayer and pass an order to that effect in his favour in a deserving case. Since the amount of legal assistance to be received is to be paid back to the Board for being utilised in other deserving cases for making it a permanent scheme for temporary assistance, wife is to execute an undertaking for adjustment of the amount recovered from the husband as per order of the Court. Time for six months is adequate enough to recover the maintenance amount from the husband. Courts should be more vigilant in such cases. Introduction of this scheme is not yet made known to Courts. It is advisable that a scheme is prepared by Member-Secretary of State Legal Aid and Advice Board and circulated to all Courts dealing with maintenance of wives from husbands in this State so that it can be implemented to the benefit of destitute by the Courts in deserving cases without waiting for any administrative direction from the High Court since the scheme is not in any manner inconsistent with administration of justice. Rather it is in furtherance of the same.

10. In this case, adopting the scheme of CILAS, I direct the State Legal Aid and Advice Board in exercise of power under Section 482, Cr.P.C. to implement the scheme on receipt of order of the Court and proposal for such financial assistance to the extent of Rs. 150/- only which has been awarded as interim maintenance treating it to be an order in favour of the wife which would be utilised for benefit of children also.

11. Coming back to the order setting petitioner ex-parte, I am satisfied that learned Magistrate had no such power and this is also not a deserving case where such drastic action was called for. Accordingly, order dated 11.11.1986 is set aside and consequent final order is also vacated. Learned Magistrate shall continue the proceeding from the stage where it was on 11.11.1986. Proceeding under Section 125, Criminal Procedure Code may be finalised within three months of receipt of record of this Court. Both parties are directed to appear before the learned Magistrate on 6th May, 1991, for fixing a date of hearing.

12. In the result, both the revision are allowed to the extent indicated above. There shall be no order as to costs.

13. Send a copy of this order to Member-Secretary, State Legal Aid and Advice Board for compliance.

Revisions allowed.

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