Court can award ad-interim maintenance under Section 125 CrPC/ Section 144 BNSS: Punjab and Haryana High Court

The Punjab and Haryana High Court recently ruled that a court can grant ad-interim maintenance, including by way of an ex-parte order, under Section 125 Code of Criminal Procedure (CrPC) or Section 144 of the recently enacted Bharatiya Nagarik Suraksha Sanhita (BNSS) which replaced the CrPC..Justice Sumeet Goel observed that though the statute does not expressly provide for grant of ad-interim or provisional maintenance, there was no bar against it. “The Court would have power to grant ad-interim maintenance including ex-parte ad-interim maintenance as firstly such power can well be construed to be an implied/ancillary power vested in the Court; secondly such interpretation would further the salubrious objective behind enacting the statute,” the single-judge said.However, the Court also cautioned that such ad-interim maintenance must be granted only in exceptional cases. .It further said such party seeking ad-interim maintenance must be required to file an affidavit disclosing their assets and liabilities to support their plea. “It goes without saying that the exercise of power by a Court to grant ad-interim maintenance/ex-parte ad-interim maintenance shall be in accordance with the well established principles of judicial discretion and equity. No exhaustive set of guideline(s) to govern such power can possible be laid-down, however alluring this aspect may be,” it added..The Court was hearing a revision petition against a family court’s order directing a man to pay ₹15,000 per month to his wife and child as provisional maintenance. The counsel representing the husband argued that there was no legislative mandate for grant of ad-interim or provisional maintenance pending disposal of application for interim maintenance under Section 125 CrPC.However, the counsel representing the wife contended that the provisional maintenance had been ordered to help them tide over the difficulties during the pendency of application for interim maintenance. .The Court examined the provisions in detail and opined that a father or the husband cannot forsake his duty towards his family.“In interpreting law of a kind, as Section 125 of Cr.P.C., 1973/Section 144 of BNSS, 2023 is, the Court must not only proceed on the dictionary or etymological meaning assigned to words employed by legislature but dispense justice by keeping in mind, at all times, not only the legal obligations but also moral and social obligations of a husband/father qua his wife/children. Instead of being fettered by sheer technicalities, it would be paramount to keep in view the interest(s) of wife/child,” the Court said.The Court observed that as per the statutory provision, a plea for interim maintenance has to be decided within 60 days from the date of notice..While explaining the meaning of ad-interim relief, the Court said it is an urgent temporary stop-gap arrangement.In the context of Section 125 CrPC and Section 144 BNSS, the Court cited the following examples when grant of ad-interim maintenance may be required,“There may be a case, where wife/child who is suffering from prolonged illness, may be required to be given immediate medical assistance/treatment and such person may not be able to meet such expense(s). Therefore, an urgent need may arise for immediate medical assistance/treatment & the wife/child may not be able to survive to obtain and/or reap the fruits of an order passed by the Court after few months without being provided an ex-parte ad-interim maintenance order/ad-interim maintenance order. There may also be an instance wherein the child cannot be sent to school for want of money. That the wife/child, in case of succeeding, will be entitled to arrears is neither any consolation nor a cause/source of solace for them."Thus, the Court opined that in view of the nature and scheme of the statutory provision, "its interpretation would result into inescapable conclusion that such ancillary or incidental power has been conferred on the Court by implication, where facts/circumstances of a case so warrant.”.In the present case, the Court found that the order for ad-interim maintenance was passed after the application for maintenance had remained pending for eight months.Thus, there was no occasion for the family court to have passed an order for ad-interim maintenance and the concerned court ought to have passed a reasoned order on the application for interim maintenance itself, the single-judge said.The Court also found that no compelling or accentuating circumstances had been brought on record to justify the passing of the order of ad-interim maintenance.Therefore, it set aside the family court ordered and directed the family court to decide application for grant of interim maintenance within six weeks..Advocate Parmod Kumar Chauhan represented the petitioner.Advocates Akash Khurcha and Murari Tiwari represented the respondents.