‘It would be most unjust and unreasonable to bar his statutory remedy of revision/ appeal as the case may be, merely because he may not be in a position to deposit the entire arrears of interim maintenance.’
The Delhi High Court in Sabina Sahdev v. Vidur Sahdev has held that there cannot be an absolute rider that the entire maintenance amount, as granted by the trial court, should be deposited prior to the entertainment of the statutory remedy.
In view of conflicting views taken by two single benches on this issue, the matter was referred to the division bench.
In Rajeev Preenja v. Sarika & Ors., a single bench of the high court made a general order directing all sessions courts to insist, without exception, while hearing criminal revisions under Section 399 CrPC against orders granting interim maintenance under Section 125 CrPC, for deposit of the entire arrears before entertaining the revision petition.
Another single bench in Brijesh Kumar Gupta v. Shikha Gupta & Anr., observed that there cannot be an absolute rider that the entire maintenance amount, as granted by the trial court, should be deposited prior to the hearing of the statutory appeal because it would otherwise leave the remedy of statutory appeal illusory. It was also held that the statutory remedy of appeal under Section 29 of the DV Act could not be curtailed by the imposition of such a condition.
The issue before the division bench comprising Justice Vipin Sanghi and Justice PS Teji was whether the single judge while deciding Rajeev Preenja (supra) could have issued a general direction barring entertainment of criminal revisions under Section 399 read with Section 401 CrPC against orders granting interim maintenance to the wife/ child under Section 125 CrPC, unless the entire arrears of maintenance up to date were first deposited.
‘General Directions’ curtail the statutory remedy
“In our view, with due respect to the learned Single Judge, the answer is clearly in the negative. As to what should be the policy of the law is a matter which squarely falls within the preserve of the Legislature, and it is not a matter which the Courts can dictate, or evolve. It is one thing to interpret an existing law and, while doing so, to adopt an interpretation which is purposive, i.e. one which advances the objective of the enactment. However, it is quite a different thing to evolve a statutory scheme which, even the Legislature did not provide for,” the bench said observing that such ‘general’ directions’ could not have been issued by the single judge as they seek to curtail the statutory remedy of revision available.
Revisional/ Appellate cannot be converted into an executing Court
The bench observed that maintainability of a statutory remedy like revision, or appeal, should not be confused with the aspect of stay of the impugned order or decree. “While considering any such application for stay of operation of the order granting interim maintenance, the appellate Court would, apart from examining the merits of the case, prima facie, also take into consideration the decisions binding on it, including the decision in Shalu Ojha (supra), however the maintainability of the statutory remedy of revision/ appeal, and the right to pursue the same, cannot be curtailed by imposing a condition of pre-deposit of the arrears of interim maintenance. By the Revisional/ Appellate cannot be converted into an executing Court in respect of the order granting interim maintenance,” the bench said.
The arrears of interim maintenance may not necessarily be a meagre amount in all cases
The bench, agreeing with the observations made by the other single bench in Brijesh Kumar Gupta (supra), further said: “In a given case, the order granting interim maintenance passed by the Ld. Magistrate either under Section 125 Cr.P.C or under Section 29 of the DV Act, may be so harsh and so unreasonable, as to make it impossible for the opposite party/ husband to comply with the same. Experience shows that in a large number of cases, the arrears of interim maintenance- which may be granted from the date of moving of the application before the Ld. Magistrate, may accumulate to a very large amount running into lakhs of rupees. The arrears of interim maintenance may not necessarily be a meagre amount in all cases. It would be most unjust and unreasonable to bar his statutory remedy of revision/ appeal as the case may be, merely because he may not be in a position to deposit the entire arrears of interim maintenance.”