C.R.R. No.1214 of 2008

21st November, 2008

Petitioner Counsel: SHEKAR Kr. BASU, SUBRATA Kr. BASU , R. L. MITRA
Respondent Counsel: SHANTI SEKHAR MUKHERJEE, KAUSHIK BHATTACHARYYA , Ms. PAROMITA DASGUPTA (GHOSH)

Cases Cited:
Savitri Vs. Govind Singh Rawat, AIR 1986 SC 984 [Para PARA10,15,26,27,35,49,54]
Jnan Prakash Agarwala Vs. State of West Bengal, 1992(1) CHN 213 [Para PARA34]
Nitya Nanda Ghorai Vs. Sneha Lata Deyee, 65 CWN 1115 [Para PARA34]
Gulab Jagdusa Kakwane Vs. Smt. Kamal Gulab Kakwane, AIR 1985 Bom 88 [Para PARA 34]
Vinayakrao Mahadeorao Kaore Vs. State of Maharashtra, AIR 1985 Bom 94 [Para PARA34]
Chaturbhuj Vs. Sita Bai, 2008 ALL MR (Cri) 860 (S.C.)=(2008)1 Cri.L.R. (SC) 416 [Para PARA 34]
Smt. Mamta w/o. A. Vaidya Vs. Ashok M. Vaidya, 1992 Cri.L.J. 2605 [Para PARA 34]
Rajathi Vs. C. Ganesan, (1999)6 SCC 326 [Para PARA34]
Sambit Parija Vs. Smt. Surita Parija, AIR 2002 Orissa 22 [Para PARA34]
Vijay Kumar Prasad Vs. State of Bihar, 2004 ALL MR (Cri) 1433 (S.C.) =(2004)5 SCC 196 [Para PARA34]
Rohtash Singh Vs. Smt. Ramendri, 2000(2) Supreme 108 [Para PARA34]
Uday Shankar Triyar Vs. Ram Kalewar Prasad Singh, 2006(2) ALL MR 184 (S.C.)=(2006)1 SCC 75 [Para PARA36]
Dalchand Vs. Municipal Corporation, Bhopal, 1983 Cri.L.J. 448 [Para PARA37]
Bihar State Council of Ayurvedic and Unani Medicine Vs. State of Bihar, 2007 AIR SCW 7633 [Para PARA38]
American Home Products Corporation Vs. Mac Laboratories Pvt. Ltd., AIR 1986 SC 137 [Para PARA 39]
Narashimha Murthy Vs. Susheelabai (Smt.), (1996)3 SCC 644 [Para PARA40]

JUDGMENT

-The revisional application under Sections 397/401 read with Section 482 of the Code of Criminal Procedure is directed against the order dated 13th March, 2008 passed by the learned Judicial Magistrate, 2nd Court, Alipore in connection with Case No.M-771 of 2007, whereby and whereunder, the learned Court below in connection with an application for interim maintenance filed under Section 125 of the Code of Criminal Procedure, awarded a sum of Rs.7,000/- per month as interim maintenance with effect from 1st October, 2007.

2. In the revisional application it has been recited that parties herein entered into their matrimonial relationship as husband and wife consequent to their marriage solemnised according to Hindu rites on 1st May, 1994. A son was born to the parties on 23rd September, 1995. Ultimately the Opposite Party herein left her matrimonial home on 1st November, 2001 along with her child. Petitioner herein initiated a proceeding under the provisions of Hindu Minority and Guardianship Act, 1956 for the custody of the child. In the said proceeding, parties entered into an amicable settlement and subsequently the matter was decided by the learned Additional District and Sessions Judge, 8th Court, Alipore on the basis of the joint compromise petition between the parties. By order dated 12th May, 2003 the proceeding in connection with the case bearing No.169 of 2002 under the provisions of Hindu Minority and Guardianship Act was disposed of on the basis of joint compromise petition between the parties. In terms of the settlement, petitioner herein paid the amount as agreed between the parties in favour of his son amounting to Rs.3,000/- per month. It was mutually agreed between the parties that as the Opposite Party herein have sufficient income of her own, she does not require any maintenance from her husband.

3. It is the contention of the petitioner that at present the petitioner herein is paying a sum of Rs.6,400/- per month for the education, food and upkeep of the son.

4. Opposite Party herein instituted a case under Section 125 of the Code of Criminal Procedure, which was registered as Case No.M-171 of 2007, praying for maintenance. She also filed an application praying for interim maintenance on false frivolous allegations. The application under Section 125 of the Code of Criminal Procedure is instituted only to harass the petitioner herein. The petitioner filed written objection to the application for interim maintenance and in spite of objection raised by the petitioner herein, learned Magistrate awarded a sum of Rs.7,000/- as interim maintenance with effect from 1st October, 2007.

5. Petitioner herein also filed supplementary affidavit enclosing a copy of the order and the joint petition of compromise in connection with the proceeding being case No.169 of 2002, as well as a copy of the written objection filed by the petitioner herein challenging the application for interim maintenance.

6. Opposite Party hence filed affidavit in opposition to the revisional application filed by the petitioner herein.

7. It is the contention of the Opposite Party that the allegations and contentions made in the revisional applications are all misconceived and not maintainable.

8. It is also stated by the Opposite Party herein that she is a partner in connection with the business under the name and style "T. K. T. Associates" with the petitioner herein. The petitioner is earning not less than Rs.1 lakh from the said business but he has deprived the Opposite Party from her share or profit. The Opposite Party has no independent income and she is living with her mother and is maintained by her. The Opposite Party is residing separately on and from November, 2001 and the petitioner herein has not paid any amount as maintenance to his wife.

9. It is also contended that in the written objection filed before the learned Court below, the petitioner took the plea that the parties are residing separately by mutual consent and it was agreed that Opposite Party would not claim maintenance for herself. But no such document could be produced berore the learned Court below at the time of deciding the application for interim maintenance.

10. It is also stated that the application seeking interim maintenance in terms of provision under Section 125 of the Code of Criminal Procedure, was supported by affidavit. The matter was rightly decided by the learned court below on consideration of recital in the petition and written objection both of which were supported by affidavits. It is not the requirement of the law that full-fledged evidence in terms of provision under Sub-section (2) to Section 126 of the Code of Criminal Procedure is required to adjudicate the application for interim maintenance and the procedure was followed in terms of the direction of the Hon'ble Supreme Court in Smt. Savitri Vs. Govind Singh Rawat reported in AIR 1986 Supreme Court 984.

11. The Opposite Party has prayed for dismissal of the revisional application.

12. Petitioner herein submitted affidavit in reply to the affidavit in opposition and denied the grounds taken by the Opposite Party herein in the affidavit in opposition. It is stated in the affidavit in reply that it was agreed between the parties that the Opposite Party would not ask for maintenance from the petitioner herein and for that reason even though, the parties are residing separately since November, 2001, no application was filed till 2007.

13. The petitioner herein has also denied his income and capacity to pay the amount fixed by the learned Court below while awarding interim maintenance.

14. Opposite Party herein has also filed affidavit in opposition against the supplementary affidavit filed by the petitioner and it is the contention of the Opposite Party herein that the petitioner is trying to introduce new facts, not taken in earlier written objection filed by him before the learned Court below and as such the same does not deserve any consideration by this Court.

15. Learned advocate for the petitioner. in course of his submission mainly contended that in view of amendment effected to the Code of Criminal Procedure, whereby, the provision as to interim maintenance in terms or Section 125 of the Code of Criminal Procedure is now codified and as such the application for interim maintenance must be decided after recording evidence that may be adduced by the respective parties. It is further contended by the learned advocate for the petitioner that the judgment of the Supreme Court in Savitri Vs. Govind Singh Rawat reported in AIR 1986 SC 984 whereby the Supreme Court while deciding the issue that the Magistrate is empowered to award interim maintenance in connection with a proceeding under Section 125 of the Code of Criminal Procedure, has also provided the manner in which such application shall be disposed of, thereby permitting affidavit between the parties, cannot have any further application in view or subsequent change of law.

16. Chapter IX to the Code of Criminal Procedure prescribes for maintenance of wives, children and parents.

17. It is correct that provision under Section 125 of the Code of Criminal Procedure as originally framed by the legislature did not provide for interim maintenance in connection with an application under Section 125 of the Code of Criminal Procedure. The change was incorporated by subsequent amendment inserted by Act 50 of 2001.

18. For proper appreciation of the matter the provision under Section 125 of the Code of Criminal Procedure is reproduced below :-

"125. Order for maintenance of wives, children and parents.- (1) If any person having sufficient means neglects or refuses to maintain-

(a) his wife, unable to maintain herself, or

(b) his legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or

(c) his legitimate or illegitimate child (not being a married daughter) who has attained majority, where such child is, by reason of any physical or mental abnormality or injury unable to maintain itself, or

(d) his father or mother, unable to maintain himself or herself, a Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, father or mother, at such monthly rate, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to time direct :

Provided that the Magistrate may order the father of a minor female child referred to in clause (b) to make such allowance, until she attains her majority, if the Magistrate is satisfied that the husband of such minor female child, if married, is not possessed of sufficient means :

(Provided further that the magistrate may, during the pendency of the proceeding regarding monthly allowance for the maintenance under this sub-section, order such person to make a monthly allowance for the interim maintenance of his wife or such child, father or mother, and the expenses of such proceeding which the Magistrate considers reasonable, and to pay the same to such person as the Magistrate may from time to time direct :

Provided also that an application for the monthly allowance for the interim maintenance and expenses of proceeding under the second proviso shall, as far as possible, be disposed of within sixty days from the date of the service of notice of the application to such person.)

Explanation.- For the purposes of this Chapter.-

(a) "minor" means a person who, under the provisions of the Indian Majority Act, 1875 (19 of 1875) is deemed not to have attained his majority.

(b) "wife" includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried.

((2) Any such allowance for the maintenance or interim maintenance and expenses of proceeding shall be payable from the date of the order, or, if so ordered, from the date of the application for maintenance or interim maintenance and expenses of proceeding, as the case may be.)

(3) If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in the manner provided for levying fines, and may sentence such person, for the whole or any part of each month's (allowance for the maintenance or the interim maintenance and expenses of proceeding, as the case may be,) remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made:

Provided that no warrant shall be issued for the recovery of any amount due under this section unless application be made to the Court to levy such amount within a period of one year from the date on which it became due :

Provided further that if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if he is satisfied that there is just ground for so doing.

Explanation.- If a husband has contracted marriage with another woman or keeps a mistress, it shall be considered to be just ground for his wife's refusal to live with him.

(4) No wife shall be entitled to receive an (allowance for the maintenance or the interim maintenance and expenses of proceeding, as the case may be,) from her husband under this section if she is living in adultery, or if, without any sufficient reason, she refuses to live with her husband, or if they are living separately by mutual consent.

(5) On proof that any wife in whose favour an order has been made under this section is living in adultery, or that without sufficient reason she refuses to live with her husband, or that they are living separately by mutual consent, the Magistrate shall cancel the order."

19. Proviso to Section 125 which was incorporated by Act 50 of 2001 prescribes that in appropriate cases, the Magistrate is empowered to direct payment of monthly allowance for the interim maintenance of his wife etc. along with expenses in connection with the proceeding which the Magistrate considers reasonable. The Section has also prescribed that such application for monthly allowance for the interim maintenance shall be disposed of, as far as possible, within sixty days from the date of service of notice of the application to such person.

20. Sub-section (2) to Section 125 includes the word interim maintenance and expenses of proceeding shall be payable from the date of the order, or from the date of application, subject to discretion by the Magistrate.

21. Sub-section (3) to Section 125 prescribes for allowance granted for the interim maintenance and expenses of proceeding is recoverable in the manner provided for levying fines and in appropriate cases the person may also be sentenced for default of payment for maintenance.

22. It will be appropriate to highlight the connected provisions as incorporated by legislature consequent to the amendment effected in Section 125 of the Code of Criminal Procedure whereby the provision for interim maintenance is given a statutory recognition.

23. Section 127 of the Code of Criminal Procedure prescribes alteration in allowance and such alteration is also applicable in connection with an order for interim maintenance.

24. Section 128 of the Code of Criminal Procedure stipulates enforcement of order of maintenance and such enforcement also includes the order of interim maintenance.

25. It may be pointed out in this context that in view of the subject matter of discussion, which is now under consideration by this Court, I shall restrict my finding about the procedural aspect of the application for interim maintenance as submitted by learned advocate for the petitioner and opposed by learned advocate for the Opposite Party. In order to consider the rival contention of the respective parties, an elaborate discussion of entire scheme of Section 125 of the Code of Criminal Procedure, in my view, is not necessary.

26. Before I proceed to discuss the entire issue now under consideration by this Court, it will be appropriate to refer to the decision of Hon'ble Supreme Court in Smt. Savitri's case (supra) and it will be appropriate to reproduce paragraph 6 of the aforesaid decision.

"6. In view of the foregoing it is the duty of the Court to interpret the provisions in Chap. IX of the Code in such a way that the construction placed on them would not defeat the very object of the legislation. In the absence of any express provision, it is appropriate to construe the provisions in Chapter IX as conferring an implied power on the Magistrate to direct the person against whom an application is made under S.125 of the Code to pay some reasonable sum by way of maintenance to the applicant pending final disposal of the application. It is quite common that applications made under S.125 of the Code also take several months for being disposed of finally. In order to enjoy the fruits of the proceedings under S.125, the applicant should be alive till the date of the final order and that the applicant can do in a large number of cases only if an order for payment of interim maintenance is passed by the Court. Every Court must be deemed to possess by necessary intendment all such powers as are necessary to make its orders effective. This principle is embodied in the maxim 'ubi aliquid conceditur, conceditur et id sine quo res ipsa esse non potest (Where anything is conceded, there is conceded also anything without which the thing itself cannot exist.) Vide Earl Jowitt's Dictionary of English Law 1959 Edn. P. 1797). Whenever anything is required to be done by law and it is found impossible to do that thing unless something not authorised in express terms be also done then that something else will be supplied by necessary intendment. Such a construction though it may not always be admissible in the present case however would advance the object of the legislation under consideration. A contrary view is likely to result in grave hardship to the applicant, who may have no means to subsist until the final order is passed. There is no room for the apprehension that the 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 may not exist. It is quite possible that such contingency may arise in a few cases but the prejudice caused thereby to the person against whom it is made is minimal as it can be set right 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 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 a civil Court can pass such interim orders on affidavits, there is no reason why a Magistrate should not rely on them for the purpose of issuing directions regarding payment of interim maintenance. The affidavit may be treated as supplying prima facie proof of the case of the applicant. 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. Having regard to the nature of the jurisdiction exercised by a Magistrate under S.125 of the Code, we feel that the said provision should be interpreted as conferring power by necessary implication on the Magistrate to pass an order directing a person against whom an application is made under it to pay a reasonable sum by way of interim maintenance subject to the other conditions referred to the pending final disposal of the application. In taking this view we have also taken note of the provisions of S.7(2)(a) of the Family Court Act, 1984 (Act No.66 of 1984) passed recently by Parliament proposing to transfer the jurisdiction exercisable by Magistrates under S.125 of the Code to the Family Court constituted under the said Act."

27. In Smt. Savitri's case (supra) the Hon'ble Supreme Court not only held that the nature of jurisdiction exercised by Magistrate under Section 125 of the Code of Criminal Procedure, the provision should be interpreted as impliedly conferring power by necessary implication on the Magistrate to pass an order directing a person against whom an application is made to pay reasonable sum by way of interim maintenance subject to other conditions referred to pending final disposal of the application.

28. The Hon'ble Supreme Court in the aforesaid decision also directed that such application for interim maintenance may be supported by affidavit stating the grounds in support of such claim so that the learned Magistrate is satisfied that there is a prima facie case in support of the claim. It is evident that the Hon'ble Supreme Court not only directed that grant of interim maintenance is permissible within the scope of Section 125 of the Code of Criminal Procedure, but also prescribed the procedure following which file application for interim maintenance can be disposed of.

29. It is the contention of the learned advocate for the petitioner that Section 125 uses the word, "upon proof of such neglect or refusal" and as such the proof can only be effected by recording evidence as permissible under the law of evidence. Affidavit is not a recognised mode, which can fall within the category of "proof".

30. Learned advocate for the petitioner further illustrated that there are provisions in the Code of Criminal Procedure where affidavit is accepted as "proof".

31. Section 295 of the Code of Criminal Procedure prescribes affidavit in proof of conduct of public servants. The said section is reproduced below :-

"295. Affidavit in proof of conduct of public servants.- When any application is made to any Court in the course of any inquiry, trial or other proceeding under this Code, and allegations are made therein respecting any public servant, the applicant may give evidence of the facts alleged in the application by affidavit, and the Court, may if it thinks fit, order that evidence relating to such facts to be given."

32. Section 296 of the Code of criminal Procedure prescribes evidence of formal character on affidavit. The said Section is reproduced below :

"296. Evidence of formal character on affidavit.- (1) The evidence of any person whose evidence is of a formal character may be given by affidavit and may, subject to all just exceptions, be read in evidence in any inquiry, trial or other proceeding under this Code.

(2) The Court may, if it thinks fit, and shall, on the application of the prosecution or the accused, summon and examine any such person as to the facts contained in his affidavit."

33. It is the contention of the learned advocate for the petitioner that the legislature if it intended that an application for interim maintenance may be decided on the basis of affidavit that may be filed by the petitioner, then nothing prevented the legislature to include any such clause either under Section 295 or under Section 296 of the Code of Criminal Procedure or even by framing a separate clause. When the legislature has not prescribed any such clause, then the natural presumption would be that the legislature has also intended that an application for interim maintenance shall be decided on consideration of proof which is understood in terms of the law applicable, either by oral or documentary evidence as provided under different sections in the Indian Evidence Act, 1872.

34. Refuting the argument advanced by learned advocate for the petitioner, learned advocate for the Opposite Party has referred to the following decisions :-

1. Jnan Prakash Agarwala Vs. State of West Bengal, reported in 1992(1) CHN 213.

2. Nitya Nanda Ghorai Vs. Sneha Lata Deyee and others, reported in 65 CWN 1115.

3. Gulab Jagdusa Kakwane Vs. Smt. Kamal Gulab Kakwane, reported in AIR 1985 Bom 88.

4. Vinayakrao Mahadeorao Kaore and others etc. Vs. State of Maharashtra and another, reported in AIR 1985 Bom 94.

5. Chaturbhuj Vs. Sita Bai, reported in (2008)1 Cri.L.R. (SC) 416 : [2008 ALL MR (Cri) 860 (S.C.)].

6. Smt. Mamta w/o. A. Vaidya Vs. Ashok M. Vaidya. reported in 1992 Cri.L.J. 2605.

7. Rajathi Vs. C. Ganesan, reported in (1999)6 SCC 326.

8. Sambit Parija Vs. Smt. Surita Parija, reported in, AIR 2002 Orissa 22.

9. Vijay Kumar Prasad Vs. State of Bihar and others, reported in (2004)5 SCC 196 : [2004 ALL MR (Cri) 1433 (S.C.)].

10. Rohtash Singh Vs. Smt. Ramendri and others, reported in 2000(2) Supreme 108.

35. It is also contended by the learned advocate for the Opposite Party that even though, by way of subsequent amendment to Section 125 of the Code of Criminal Procedure; the provision as to interim maintenance is recognised by the legislature by incorporating the said amendment in Section 125 of the Code of Criminal Procedure; but this by itself does not necessarily mean that the direction of the Supreme Court in Savitri's case (supra) about the procedure that may be followed in connection with an application under Section 125 of the Code of Criminal Procedure has to be altogether ignored.

36. Three Judge Bench of Hon'ble Supreme Court in Uday Shankar Triyar Vs. Ram Kalewar Prasad Singh and another, reported in (2006)1 SCC 75 : [2006(2) ALL MR 184 (S.C.)], in connection with the matter falling under the Code of Civil procedure held that non-compliance with any procedural requirement relating to a pleading, memorandum of appeal or application or petition for relief should not entail automatic dismissal or rejection, unless the relevant statute or rule so mandates. It will be appropriate to refer to paragraph 17 of the aforesaid decision which is set out below :-

"17. Non-compliance with any procedural requirement relating to a pleading, memorandum of appeal or application or petition for relief should not entail automatic dismissal or rejection, unless the relevant statute or rule so mandates. Procedural defects and irregularities which are curable should not be allowed to defeat substantive rights or to cause injustice. Procedure, a handmaiden to justice, should never be made a tool to deny justice or perpetuate injustice, by any oppressive or punitive use. The well-recognised exceptions to this principle are :

(i) where the statute prescribing the procedure, also prescribes specifically the consequence of non-compliance;

(ii) where the procedural defect is not rectified, even after it is pointed out and due opportunity is given for rectifying it;

(iii) where the non-compliance or violation is proved to be deliberate or mischievous;

(iv) where the rectification of defect would affect the case on merits or will affect the jurisdiction of the Court;

(v) in case of memorandum of appeal, there is complete absence of authority and the appeal is presented without the knowledge, consent and authority of the appellant."

37. The Hon'ble Supreme Court in Dalchand Vs. Municipal Corporation, Bhopal and another, reported in 1983 Cri.L.J. 448 held.

"Where the design of the statute is the avoidance or prevention of public mischief, but the enforcement of a particular provision literally to its letter will tend to defeat that design, the provision must be held to be directory, so that proof of prejudice in addition to non-compliance is necessary to invalidate the act complained of. Ever so many provision are there in the Act or rules intended by way of abundant caution in safeguarding the interest of vendors, dealers, distributors and manufacturers. Non-compliance or ineffective compliance of many of these provisions may not prove prejudicial to anybody on account of compliance of other checks and counter checks provided. Most or many provisions may be mandatory and an honest and fair compliance may be necessary. That does not mean whenever observance of a particular rule is not whole or strict, prejudice must be presumed or prosecution must fail."

38. The matter as to interpretation of a statute came up for consideration before the Supreme Court in Bihar State Council of Ayurvedic and Unani Medicine Vs. State of Bihar and others, reported in 2007 AIR SCW 7633 and the two Judge Bench of Hon'ble Supreme Court held as follows :

"In our opinion, where the legislature has used words in an act which if generally construed, must lead to palpable injustice and consequences revolting to the mind of any reasonable man, the Court will always endeavour to place on such words a reasonable limitation, on the ground that legislature could not have intended such consequence to ensue, unless the express language in the Act or binding authority prevents such limitation being interpolated into the Act. In construing an Act, a construction ought not to be put that would work injustice, or even hardship or inconvenience, unless it is clear that such was the intention of the legislature. It is also settled that where the language of the legislature admits of two constructions and if construction in one way would lead to obvious injustice, the Courts act upon the view such a result could not have been intended, unless the intention is manifested in express words out of the two interpretations, that language of the statute should be preferred to that interpretation of which would not frustrate it. It is a cardinal rule governing the interpretation of the statutes that when the language of the legislature admits of two constructions, the Court should not adopt the construction which would lead to an absurdity or obvious injustice. It is equally settled that within two constructions that alternative is to be chosen which would be consistent with the smooth working or the system, which the statute purported to be regulation and that alternative is to be rejected which will introduce uncertainty, friction or confusion with the working of the system."

39. In American Home Products Corporation Vs. Mac Laboratories Pvt. Ltd. and another, reported in AIR 1986 SC 137, the Hon'ble Supreme Court held that it is well-known principle of interpretation of statutes that a construction should not be put upon a statutory provision which would lead to manifest absurdity or futility, palpable injustice or absurd inconvenience or anomaly.

40. In Narashimha Murthy Vs. Susheelabai (Smt.) and others, reported in (1996)3 SCC 644 the Hon'ble Supreme Court held that the purpose of law is to prevent brooding sense of injustice. It is not the words of the law but the spirit and internal sense of it that makes the law meaningful.

41. Keeping this position in mind, the rival contentions as advanced by the learned advocate for the petitioner and learned advocate for the Opposite Party is required to be examined.

42. It may be pointed out that Section 126 of the Code of Criminal Procedure prescribes the procedure in connection with a proceeding under Section 125 of the Code of Criminal Procedure.

43. Section 126 is set out below :

"126. Procedure.- (1) Proceedings under Section 125 may be taken against any person in any district-

(a) where he is, or

(b) where he or his wife resides, or

(c) where he last resided with his wife, or as the case may be, with the mother of the illegitimate child.

(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 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 cause 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.

(3) The Court in dealing with applications under Section 125 shall have power to make such order as to costs as may be just."

44. Sub-section (2) to Section 126, highlighted above provides as to how the evidence shall be recorded and the sad Section further prescribes that evidence shall be recorded in the manner prescribed for summons cases.

45. The section also prescribes that in appropriate case or cases the matter may be decided ex parte.

46. It may be pointed out that while incorporating the amendment, legislature did not think it necessary to effect consequent amendment in Section 126 of the code of Criminal Procedure and in the absence of any such language in Section 126 of the Code of Criminal Procedure, it cannot be stated that recording of evidence is one of the pre-condition in connection with an application for interim maintenance filed under Section 125 of the Code of Criminal Procedure.

47. It is also pertinent to point out that word 'proof appears in Section 125 as originally framed and while incorporating the proviso whereby the application for interim maintenance was introduced by the legislature consequent to the subsequent amendment effected by Act 50 of 2001, the word 'proof' is not introduced in the said proviso. So it would be natural to presume that the word 'proof' as appearing in Section 125 of the Code of Criminal Procedure as originally framed should be read in consonance with the language, as appearing in Section 126 of the Code of Criminal Procedure. Any other construction would defeat the very purpose of awarding interim maintenance in connection with the proceeding under Section 125 of the Code of Criminal Procedure. Absence of the word interim maintenance' in Section 126 would in my view indicates that legislature while effecting amendment to Section 125 by Act 50 of 2001, did not consider it necessary that in deciding application for interim maintenance, the Court is required to take evidence, otherwise such procedure would have been incorporated by effecting necessary amendment to Section 126 of the Code of Criminal Procedure. It may be pointed out that procedure to be followed in connection with an application under Section 125 is prescribed only under Section 126 of the Code of Criminal Procedure. The entire scheme of Section 125 of the Code of Criminal Procedure is the out come of benevolent legislation whereby the aggrieved party meaning the wife, children and parents are given statutory right against the husband, father and sons or daughters to claim maintenance.

48. This is recognition of social obligation whereby a statutory liability is created for maintenance of wife, children etc. as the case may be. In the absence of specific language in the section, it may not be permissible for the Court to decide the matter in such a way whereby following the procedural formalities, the very right is denied. Such a construction will be not only against the letter of the statute but also against the spirit for which the law was incorporated.

49. In my humble view, the amendment has not incorporated any clause under which there is any requirement that an application for interim maintenance filed under Section 125 of the Code of Criminal Procedure must be decided on evidence. The procedure as prescribed by the Supreme Court in Savitri Case (supra) is required to be followed and as the same is done in this case by the learned Magistrate, it cannot be stated that any illegality or procedural irregularity has been committed by the learned Court below.

50. The matter can also be examined from another angle. Rules as to procedure are incorporated as an aid to substantive justice. Rules as to procedure can never supplement the law as to substantial justice. Any breach of the rule does not necessarily incur the mischief unless the legislature has prescribed necessary consequence, if any breach of the rule has occasioned. In the absence of any language in the statute, the Court by way of interpretation cannot, create a provision, which defeats the very purpose and object for which the law has been framed.

51. In this connection if, one looks to the language of the Section 461 of the Code of Criminal Procedure then it appears that legislature has provided under the said section, irregularity which vitiate proceeding. If in connection with the proceeding under Section 125 of the Code Criminal Procedure the Magistrate not being empowered by law, decides an application and makes an order for maintenance, the entire proceeding will be vitiated and such proceeding will be void in terms of language of S.461 of the Code of Criminal Procedure. But so far as the present case is concerned, the non-examination of witnesses and deciding the matter on affidavit does not and cannot fall within the language of clause G to Section 461 of the Code of Criminal Procedure. In the absence or any statutory requirement that evidence is required to be adduced in order to decide an application for interim maintenance, then incorporating such a provision by way of interpretation will amount to entering into the field of legislation. Such a course is not open to the Court. Function of the Court is to interpret the law, as it is and not what it should be.

52. In my view this is not even an illegality committed by the learned Magistrate while deciding the application for interim maintenance, on the basis of affidavit between the parties and as such the order cannot be questioned before this Court on the ground that rules as to procedure was not at all followed. In fact there is no rule of procedure, which mandates the requirement of evidence while deciding an application for interim maintenance.

53. I once again make it clear that the language of Section 125 of the Code of Criminal Procedure so far as it relates to grant of interim maintenance does not provide that evidence is required to be taken in order to decide the said application. No such construction of proviso to Section 125 of the Code of Criminal Procedure, in connection with grant of interim maintenance is permissible.

54. On consideration of the entire matter, I am unable to agree with the submission made by learned advocate for the petitioner and the point so far as the procedural aspect is concerned, is decided that in connection with an application for interim maintenance under Section 125 of the Code of Criminal Procedure, no evidence is required to be taken by the learned Magistrate and the matter can be decided on exchange of affidavit in terms of the directions of the Supreme Court in Savitri's case (supra).

55. Coming to the merit of the application, even though not much argument is advanced on this point but I find from the supplementary affidavit filed by the petitioner herein, that in the objection to the application for interim maintenance, he took the plea that the application is filed contrary to the agreement and understanding between the parties. The petitioner herein in his written objection supported by affidavit denied his income of Rs.one lakh per month but curiously enough did not state anything about his actual monthly income. There is no dispute that petitioner herein is engaged in business and in the absence of any recital about his monthly income, the petitioner cannot be permitted to raise the issue before this Court while hearing the revisional application challenging the order of interim maintenance. Surprisingly the petitioner herein only stated about his present liability to pay maintenance to his son. It may be pointed out that the application for interim maintenance was filed by the wife and as such petitioner's liability to pay maintenance to his son cannot be a prime consideration to reject the application for interim maintenance to the wife. It is not out of place to mention here that petitioner herein has developed his case and sought to introduce the fact that Opposite Party herein was earning Rs.5,000/- per month by giving tuition, and the said income is now about Rs.7,000/- per month. It is not clear to me as to bow the petitioner herein is taking the plea about the income of the Opposite Party, particularly when no such plea was taken in the written objection filed by him before the learned Court below.

56. It may be pointed out that award of interim maintenance shall depend on the status of the Opposite Party/wile which she was enjoying during her stay with her husband. Documents filed along with the affidavit in opposition prima facie indicates that petitioner and Opposite Party were running a partnership business and it is the contention of the Opposite Party that even though she is entitled to share of profit, she was not getting any amount from the business. There is nothing to show that Opposite Party herein, has any income of her own, which disentitles her from claiming interim maintenance during the pendency of the proceeding.

57. The other points such as whether the parties are residing separately by mutual consent or whether the Opposite Party has deserted the petitioner can only be decided on consideration of the evidence that may be adduced by the parties before the learned Court below, during the hearing of application for maintenance under Section 125 of the Code of Criminal Procedure.

58. At this stage, I do not find any illegality committed by the learned Court below in awarding interim maintenance in favour of the Opposite Party and as such the order cannot be interfered in connection with this revisional application.

59. The revisional application is devoid of any merit and stands dismissed.

60. The impugned order passed by the learned Magistrate is hereby affirmed and the petitioner herein shall deposit the entire amount of interim maintenance on and from the date of the order passed by the learned Magistrate.

61. Interim order granted earlier stands vacated.

62. I make myself clear that save and except what is decided by me in connection with the matter as to grant of interim maintenance. I have not entered into the merit of the application filed by the Opposite Party herein under Section 125 of the Code of Criminal Procedure and the same shall be decided by the learned Magistrate on consideration of evidence that may be adduced by the respective parties in accordance with law. It is expected that learned Magistrate shall decide the matter as expeditiously as possible preferably within a period of six months from the date of receipt or the communication of the order.

63. Criminal Section is directed to forward a copy of the order to learned Court below.

64. Criminal Section is also directed to supply urgent photostat copy of the order to the parties as and when applied for.

Petition dismissed.