The Delhi High Court has observed that a revisional court while considering the grant of stay of the interim maintenance order passed under section 125 of CrP, cannot put a general direction of depositing the entire maintenance amount by neglecting the circumstances of the case.
Justice Girish Kathpalia’s single judge vacation bench observed, “While exercising the revisional scrutiny of an interim maintenance order passed in proceedings under section 125 CrPC, the revisional court for yet another reason cannot impose as a pre-condition to grant of stay on operation of the assailed interim maintenance order, such general rider of deposit of the entire amount of awarded maintenance ignoring the overall circumstances of the case.”
The Court said this while hearing a plea moved by a husband to challenge the trial court order that rejected his request for stay on the operation of the interim maintenance order.
The trial court did this by only relying upon the directions given by the High Court in Rajeev Preenja v. Sarika. In this case, the court had directed that when a husband files for a revision in sessions court against an order of interim maintenance passed by a Magistrate in favour of wife, MM won’t entertain the revision petition “till the entire amount of interim maintenance due under the order of the learned MM up to the date of filing of the revision petition is first deposited in the court of the learned ASJ.”
Justice Kathpalia also noted that a single judge later in Brijesh Kumar Gupta vs Shikha Gupta held that it can’t be an absolute rider that the entire maintenance amount as granted by the trial court should be deposited before the hearing of the statutory appeal.
It was also noted that the issue of conflicting views of two co-ordinate benches was settled further in Sabina Sahdev v Vidur Sahdev, by a division bench, the court said the legal position that arises is the general directions issued in teh case of Rajeev Preenja to the magisterial and sessions courts are not sustainable in law.
Justice Kathpalia observed:
“Since the learned Additional Sessions Judge in the impugned order refused to stay the operation of the interim maintenance order, solely relying upon the directions issued in Rajeev Preenja (supra), which directions were subsequently held not sustainable in the eyes of law, the order of the learned Additional Sessions Judge, impugned in these proceedings, is liable to be set aside.”
On noting that Section 397 of CrPC confers suo motu powers on the Court of Sessions and the High Court, the court said that such powers are always implicitly accompanies with “attendant duty” to invoke the powers so that to meet the ends of justice.
“Once an illegality, incorrectness or impropriety in a judicial order is brought to the notice of the revisional court under Section 397 CrPC, the Court cannot justifiably refuse to entertain the challenge on the grounds of non-compliance with the order impugned before it. From that angle also, in my view, there cannot be generalized direction not to stay the operation of the interim maintenance order solely on the ground that the revisional did not deposit the entire amount of awarded maintenance. Of Course, if otherwise and the factual and legal matrix justifies, grant of stay can be denied as well.,” said the Court.
The Court however clarified that it kept itself restrained from analysing as to whether operation of the interim maintenance order facing appellate challenge was liable to be stayed or not. “This issue has to be considered by the learned Additional Sessions Judge on the facts and circumstances of the case in the backdrop of settled legal position.” it further said.
Allowing the plea, the court remanded the matter back to the Additional Sessions Judge to take a fresh decision as if the interim maintenance order passed by the magisterial court was liable to be stayed during pendency of the appeal.
Source: https://www.livelaw.in/high-court/delhi-high-court/delhi-high-court-revisional-court-stay-interim-maintenance-order-section-125-crpc-230493
