S.B.Criminal Revision Petition No.357 of 2001

6th September, 2001

Petitioner Counsel: Mr. K. L. MAHESHWARI

Cases Cited:
Smt. Savitri Vs. Govind Singh Rawat, AIR 1986 SC 984 [Para 3]

JUDGMENT

JUDGMENT :- This revision petition has been filed by the petitioner-husband against the order dated 26.5.2001 passed by the Family Court, Jodhpur by which he allowed interim maintenance at the rate of Rs.400/- per month to the respondent wife.

2. In this revision petition, the main contention of the learned counsel for the petitioner is that there is no such power under Cr.P.C. for providing interim maintenance without recording evidence, hence the order dated 26.5.2001 is without jurisdiction and it should be set aside.

3. In my opinion, this submission carries no weight in view of pronouncement of Hon'ble Supreme Court in the case of Smt. Savitri v. Govind Singh Rawat, AIR 1986 SC 984 wherein the Hon'ble Supreme Court has held as under:

"In the absence of any express prohibition, it is appropriate to construe the provisions in Chapter IX as conferring an implied power on the Magistrate to direct the person against whom application is made u/Sec. 125 of the Code to pay some reasonable sum by way of maintenance to the applicant pending final disposal of the application. 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 facie case for making such an order. 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 of 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."

4. Thus, even on affidavits, interim maintenance can be granted. Hence, the argument that without recording evidence, interim maintenance cannot be allowed is rejected.

5. Accordingly, this revision petition fails and is hereby dismissed.

Revision dismissed.