SAVITRI W/O SHRI GOVIND SINGH RAWAT versus SHRI GOVIND SINGH RAWAT

Citation: [1985] SUPP. 3 S.C.R. 615 · Decided: 09-10-1985 · Supreme Court of India · Bench: E.S. VENKATARAMIAH · Disposal: Disposed off

Judgment (excerpt)

615 
SAVITRI W/O SHRI GOVIND SINGH RAWAT 
v. 
SHRI GOVIND SINGH RAWAT 
OCTOBER 9, 1985 
[E,S, VENKATARAMIAH AND R,B. MISRA, JJ,] 
Code 
of Criminal Procedure, 
1973, s. 
125 -
Whether 
Magistrate can grant interim maintenance. 
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 
A 
B 
c 
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. 
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 
E 
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 
M

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