Revisional Court Can’t Make Deposition Of Arrears A Condition For Grant Of Stay On Interim Maintenance Order U/S 125 CrPC: Delhi High Court

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 CrPC, cannot put a general direction of depositing the entire maintenance amount by ignoring the facts of circumstances of the case.

“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,” a vacation bench of Justice Girish Kathpalia observed.

The court was hearing a plea moved by a husband challenging the trial court order rejecting his request for stay on the operation of the interim maintenance order.

The trial court did so by solely relying upon the directions issued by the High Court in Rajeev Preenja v. Sarika. In the said case, the court had directed that when a revision is filed by husband in sessions court against an order of interim maintenance passed by a Magistrate in favour of the wife, the revision petition will not be entertained by MM "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 noted that a single judge later in Brijesh Kumar Gupta vs Shikha Gupta held that that there cannot be an absolute rider that the entire maintenance amount as granted by the trial court should be deposited prior to hearing the statutory appeal.

Noting that the issue of conflicting views of two co-ordinate benches was later settled by a division bench in Sabina Sahdev vs Vidur Sahdev, the court said the legal position which emerges is that the general directions issued in the case of Rajeev Preenja to the magisterial and sessions courts are not sustainable in law.

Setting 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 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.”

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 accompanied with “attendant duty” to invoke the powers in order 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 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 said.

The court however clarified that it restrained itself 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 said.

Allowing the plea, the court remanded the matter back to the Additional Sessions Judge to decide afresh as to whether the interim maintenance order passed by the magisterial court was liable to be stayed during pendency of the appeal.

Title: RS v. MB

Citation: 2023 LiveLaw (Del) 510

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