S.125 CrPC Confers Implied Power To Grant Interim Maintenance: Kerala High Court

The Kerala High Court recently reiterated that in the absence of any express bar or prohibition, Section 125 Cr.P.C. could be interpreted as conferring power by necessary implication to make interim order of maintenance subject to final outcome in the application. 

The Division Bench comprising Justice Anil K. Narendran and Justice P.G. Ajithkumar while holding so, noted that the Apex Court in its decision in Shaila Kumari Devi v. Krishnana Bhagwan Pathak (2008) observed, 

"...so far as 'interim' maintenance is concerned, it is true that Section 125 of the Code as it originally enacted did not expressly empower the Magistrate to make an order directing payment of interim maintenance. But the Code equally did not prohibit the Magistrate from making such an order. Now, having regard to the nature of proceedings, the primary object to secure relief to deserted and destitute wives, discarded and neglected children and disabled and helpless parents and to ensure that no wife, child or parent is left beggared and destitute on the scrap-heap of society so as to be tempted to commit crime or to tempt others to commit crime in regard to them, it was held that the Magistrate had 'implied power' to make orders to pay interim maintenance. The jurisdiction of the Magistrate under Chapter IX (Order for Maintenance of Wives, Children and Parents) is not strictly criminal in nature. Moreover, the remedy provided by Section 125 of the Code is a summary remedy for securing reasonable sum by way of maintenance".

It thus found that going by the above legal principles, a Christian daughter is entitled to claim maintenance.

The petitioner herein was aggrieved by the interim order of maintenance passed by the family court in an application moved in a petition filed under Section 7 of the Family Courts Act, 1984 seeking payment of past and future maintenance, following dissolution of petitioner's marriage.

It was argued by Advocates P.S. Gireesh, E.S. Firos, Susheel Shankar, Salih P.A., Arjun R. Naik, and Thejalakshmi R.S. that Family Court was not empowered to to order payment of interim maintenance since what the respondent (his daughter) could claim was only maintenance as provided under Section 125 Cr.P.C. by operation of Section 7(2) of the Family Courts Act. 

After reiterating that Section 125 could be interpreted as conferring power to make interim order of maintenance, the Court delved upon the argument of the petitioner that the respondent could claim maintenance only under Section 7(2) of Family Courts Act. It was averred that Section 7(2) enables a daughter to claim maintenance under Section 125 of the Code, and that in turn, Section 125(1)(b) of the Code only permits an unmarried daughter who has physical or mental abnormality or injury whereby she is unable to maintain herself could alone claim maintenance.

The Court accordingly found that since the question as to whether the respondent is entitled to claim maintenance under common law or under Section 125 of the Code alone is a matter to be decided by the Family Court at the time of final adjudication, and the claim of maintenance was also pending consideration of the Family Court, the petitioner had to pay the amount of interim maintenance, and found no cause to interfere with the same. 

"The respondent being a medical student, her expenses include not only what is required for mere sustenance, but also educational and also other expenses. Considering the status and financial conditions of the parties, we are of the view that the interim maintenance at the rate of Rs.15,000/- is not exorbitant", the Court observed while dismissing the instant petition. 

Advocates G. Bhagavat Singh, Kelu Bhagavat, and Shyju S. appeared for the respondent.

Case Title: M.K. Gheevarghese v. Mariam Gheevarghese

Citation: 2022 LiveLaw (Ker) 654 

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