While considering the grant of stay of the interim maintenance order passed under Section 125 of CrPC, the High Court of Delhi has observed that a revisional court cannot make a general direction of depositing the whole maintenance amount by ignoring the facts and circumstances pertaining to 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 granting of stay on the 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.“
While hearing a plea moved by a husband challenging the trial court order rejecting his request for a stay on the operation of the interim maintenance order, the Court observed this.
The trial court did so by entirely relying on directions issued by the High Court in Rajeev Preenja v. Sarika. In this case, the Court had directed that when a revision is filed by the husband in session court against an order of interim maintenance given by a Magistrate in the wife’s favour, 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 the revision petition is first deposited in the court of the learned ASJ“.
Justice Kathpalia noted that in the case of Brijesh Kumar Gupta vs Shikha Gupta, a single judge later held that no absolute rider can be there and that the entire maintenance amount as granted by the trial court should be deposited prior to hearing the statutory appeal.
After noting the issue of conflicting views of two co-ordinate benches was further settled by a division bench in Sabina Sahdev vs Vidur Sahdev, the court said the legal position that comes up is that the general directions issued in the case of Rajeev Preenja to the magisterial and sessions courts are not sustainable in law.
Putting 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 Rajeen Pranja (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.“
Furthermore, the Court 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 a 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.”
It also clarified that it stepped back from analyzing whether the operation of the interim maintenance order that was facing an appellate challenge was liable to be stayed or not. It also stated, “This issue has to be considered by the learned Additional Sessions Judge on the facts and circumstances of the case in the backdrop of the settled legal position.”
When allowing the plea, the Court also remanded the matter back to the Additional Sessions Judge to decide afresh whether the interim maintenance order given by the magisterial court was liable to have stay during the 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