S. 125 CrPC | Order For Interim Maintenance Not An Interlocutory Order, Can Be Challenged In Revision: Allahabad High Court

Recently, the Allahabad High Court held that an order of interim maintenance during the pendency of application under Section 125 CrPC is not an interlocutory order and thus, can be challenged before the High Court in revision.

While enhancing the interim maintenance granted to revisionist-wife, Justice Pankaj Bhatia held

“The power to grant maintenance during the pendency of the proceedings flows from second proviso to section 125(1). The manner in which, the said power is to be exercised is ultimately to determine whether the order is interlocutory or not. As the order conclusive decides the grant of maintenance during the pendency of application based upon the material facts, it can certainly not be termed as an interlocutory order as it decides the rights of grant of interim maintenance during the pendency of the application.”

Thus, the Court held that “on a plain interpretation of section 125(1) Cr.P.C. also, the grant of interim maintenance cannot be termed as an interlocutory order as it categorically decides the rights of the maintenance during the pendency of the application.”

Factual Background

Revisionist-wife was employed earlier as a teacher and was also imparting private tuition. It was contended that post-Covid, she could not continue with private tuition and was suffering from ailment. Respondent-husband is a retired army officer with a pension in excess of Rs.1,50,000/- per month. Additional Principal Judge, Family Court Gautam Budh Nagar had awarded interim maintenance of Rs.15,000 per month which was challenged before the High Court in revision under Section 397/ 401 CrPC read with Section 19(4) of the Family Courts Act.

A preliminary objection was raised as to the maintainability of the revision against an order of interim maintenance under Section 125 CrPC. Counsel for respondent relied on Rahul Nagar vs. State of U.P. and another wherein Allahabad High Court had held that the order passed under Section 125 CrPC granting interim maintenance is an interlocutory order and criminal revision against the same is not maintainable

In response, counsel for the revisionist wife relied on Liaqat Hussain vs. Jainab Praveen and another, wherein the Allahabad High Court had held that a remedy of criminal revision was available against an interim and final order passed under section 125 and 128 of CrPC. Reliance was also placed on Sugandha Porwal vs. State of U.P. and others, where the Allahabad High Court held that the order for interim maintenance was not an interlocutory order but an immediate order.

High Court Verdict

Relying on the decisions of Allahabad High Court in Liaqat Hussain and Sugandha Porwal, the Court held that “a revision would lie against an interlocutory order, which strictly is not an interlocutory order but an immediate order.”

The Court held that how the power to grant maintenance under second proviso Section 125(1) is to be exercised determines whether the order is interlocutory or not. Since the order of interim maintenance conclusively decides the rights of parties during the pendency of the application, it is not an interlocutory order.

The Court held that the grant of interim maintenance under Section 125(1) CrPC cannot be termed as an interlocutory order as it categorically decides the rights of the maintenance during the pendency of the application.

Further, while hearing the case on merits, the Court observed that the fact that the revisionist wife was getting Rs. 10000 from her son proved that the interim maintenance awarded by the Additional Principal Judge, Family Court Gautam Budh Nagar was insufficient.

Noting that the respondent-husband was having an income of more than Rs. 1 lakh a month, the Court enhanced the interim maintenance to 25% of the amounts so received on a month-to-month basis in the pension account. The Court further directed the respondent to renew the health card which entitles to free medical treatment from the army authorities, being the spouse of the opposite party.

Case Title: Smt. Anjana Mukhopadhyay v. State of U.P. and Another 2023 LiveLaw (AB) 497 [CRIMINAL REVISION No. - 4878 of 2022]

Case Citation: 2023 LiveLaw (AB) 497

Counsel for Revisionist: Akashi Agarwal, Rahul Agarwal

Counsel for Opposite Party: Subham Tripathi, Chandan Sharma

Click Here To Read/Download Order