While considering the grant of stay of the interim maintenance order passed under section 125 of CrPC, the Delhi High Court has observed that a revisional court cannot put a general direction of depositing the entire maintenance amount by keeping aside the circumstances of the case.
A vacation bench of Justice Girish Kathpalia 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 the operation of the assailed interim maintenance order, such general rider of deposit of the entire amount of awarded maintenance under ignoring the overall circumstances of the case.”
The court reached at this conclusion when it was hearing a plea moved by a husband in which he challenged the trial court order rejecting his request to stay on the operation of the interim maintenance order.
The trial court ordered this by solely relying upon the directions issued by the High Court in Rajeev Preenja v. Sarika. In this case, the court had given direction that when a revision is filed by the husband in sessions court against an order of interim maintenance passed by a Magistrate in the wife’s favor, MM will not entertain the revision petition “till the entire amount of interim maintenance due under the order of the learned MM up to date of filing of the revision petition is first deposited in the court of the learned ASJ”.
Keeping aside the impugned order, 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 where 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.”
Noting that section 397 of CrPC confers suo motu powers on thte Court of Sessions and the High Court, the court further said that such powers are always implicitly accompanied with “attendant duty” to invoke the powers so that to meet the ends of justice.
The Court then said, “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 revisionist did not deposit the entire amount of awarded maintenance. Of course, if otherwise the factual and legal matrix justifies, grant of stay can be denied as well.”
The court however clarified that it limited itself from analysing as to whether operation of the interim maintenance order facing appellate challenge was liable to be stayed or not. It also said, “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.”
Along with allowing the plea, the court also remanded the matter back to the Additional Sessions Judge to take decision afresh as to whether 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
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