Parvesh Kumari Bansal vs Raj Kumar Bansal

V.K. Jhanji, J.—This order of mine will dispose of Crl. Revision No. 626 of 1987, Crl. Misc. Petition Nos. 11049-M and 11050-M of 1992 as they have arisen out of a petition filed by the petitioner-wife, u/s 125, Cr.P.C.

In brief, the facts are that the marriage between the parties took place on 16.11.1984. According to the allegations of the wife, she was turned out of the house by the husband which led to the filing of the petition u/s 125 Cr.P.C. for maintenance. In the said petition, the Trial Magistrate awarded interim maintenance to the wife w.e.f. 17.9.1986, at the rate of Rs. 500/- per month. The husband feeling aggrieved of this order, filed a revision petition before the Addl. Sessions Judge, who vide her order dated l4.11.1986 set aside the order of the Trial Magistrate on the ground that the trial Magistrate has not decided the question of jurisdiction, and also that the affidavit filed by the wife was not properly verified. On a fresh application filed by the wife, the Trial Magistrate vide order dated 17.2.1987, awarded interim maintenance to the wife at the rate of Rs. 500/- per month, with effect from the date of application, i.e. 17.12.1988. This order too was impugned by the husband before the Addl. Sessions Judge in revision. The revision petition was again accepted by the Addl. Sessions Judge vide order dated 28.5.1987, only on the ground that affidavits of the parties were not in accordance with the provisions of Order 19, Rule 3, Code of Civil Procedure. The order of the Addl. Sessions Judge is now being impugned in the present petition.

At the time of motion hearing, the operation of order of the Addl. Sessions Judge was stayed.

Criminal Misc. Petition No. 11049-M of 1992 has been filed by the wife for quashing of proceedings initiated u/s 340, Cr.P.C. by the husband on the ground that in execution of order of interim maintenance, the wife claimed maintenance with effect from the date of earlier application i.e. 7.7.1986, whereas she was entitled to maintenance w.e.f. 17.12.1986. Criminal Misc. Petition No. 11050-M of 1992 has again been preferred by the wife for quashing of pending proceedings u/s 340, Cr.P.C. initiated by the husband on the ground that the petitioner has wrongly stated in the affidavit that she is unemployed, whereas she was employed with M/s. Sheel Traders at Chandigarh. In Criminal Revision No. 626 of 1987, the husband is being represented by Mr. C.B. Kukar, Advocate, whereas in Criminal Misc. Petition Nos. 11049-M and 11050-M of 1992, the husband is appearing in person.

After hearing the learned Counsel for the parties in Criminal Revision and the respondent, in person, in Criminal Misc. Petitions, I am of the view that the Criminal Revision deserves to succeed. The wife was awarded interim maintenance after hearing the parties and giving them an opportunity to file affidavits, on the basis of prayer made by the wife for interim maintenance. The husband failed to bring on record any cogent evidence to show that the wife was employed or was not entitled to interim maintenance. It is true that the affidavit filed by the wife was not in order, but at the same time the affidavit filed by the husband was also not in conformity with the provisions of law. This has been so noticed by the Addl. Sessions Judge. It finds mention in the order of Addl. Sessions Judge that this point has neither been raised in the revision petition nor was argued by the Counsel. Instead of setting aside the order, the Addl. Sessions Judge ought to have asked the parties to file additional or better affidavits for awarding interim maintenance. For the purpose of interim maintenance, the Trial Magistrate is required to satisfy himself that there is a prima facie case for making such an order. In Savitri Rawat Vs. Govind Singh Rawat, , it has been held that such an order may also be made in an appropriate case ex parte pending service of notice of the application subject to any modification or even an order of cancellation that may be passed after the respondent is heard. If the allegations in the application or the affidavit are not true, it is always open to the person against whom such an order is made, to show that the order is unsustainable. Once the Trial Magistrate was satisfied that there is prima facie case in favour of the wife for awarding interim maintenance and the husband had failed to bring on record any material to show that the order of the Trial Magistrate was not sustainable, the Addl. Sessions Judge ought not to have interfered with the order of interim maintenance on technical grounds. Accordingly, the revision petition shall stand allowed. The order of the Addl. Sessions Judge is set aside and that of the trial Magistrate is ordered to be restored. This leaves me to decide Criminal Misc. Petitions filed for quashing of proceedings u/s 340, Cr.P.C. initiated by the husband, on the ground that wife in execution, has claimed interim maintenance w.e.f. 7.7.1986 instead of 17.12.1986 and thereby perjured herself. If appears that there was some mistake on the part of the Counsel for claiming maintenance w.e.f. 7.7.1986, merely due to the reason that earlier application for interim maintenance was allowed from that date, which order of course was set aside in revision, and thereafter, another application for maintenance was filed. The other allegation that the wife was employed with M/s. Sheel Traders at Chandigarh and she had purposely not disclosed this fact while claiming interim maintenance, has been levelled against her only for the purpose of dragging her into unnecessary litigation. It has come on record of the Trial Magistrate by way of statement of the employer that the wife was employed with M/s. Sheel Trader, but she had left the job in September, 1986. As noticed, maintenance is due with effect from 17.12.1986 and not from 7.7.1986. In this view of the matter, no useful purpose would be served if the proceedings are allowed to continue. Accordingly, both the petitions shall stand allowed and the proceedings u/s 340, Cr.P.C. initiated by the husband, are quashed with costs, which are quantified at Rs. 1500/-. It is conceded by the learned Counsel for the wife that she has received maintenance w.e.f. 7.7.1986, whereas she was entitled to the same w.e.f. 17.12.1986. The excess amount so received by the wife towards maintenance, shall be adjusted towards costs and future maintenance. However, it is made clear that observations made in this order shall not have any effect on the merits of the case.