Revision Against Order Granting Interim Maintenance: Inviting Interference Towards an Interlocutory Order?

In February 2023, the Madhya Pradesh High Court held that the decision to award interim maintenance under the Code of Criminal Procedure, 1973¹ (the Code) is subject to the revisional jurisdiction of the court concerned.² This judgment sides with the line of reasoning according to which the revision against the said order is maintainable on account of the fact that such an interim order substantially affects the rights of the parties. This line of reasoning differs from the other side of the judgments, which have taken the view that the revisional court is barred from exercising the said jurisdiction. This bar, as per the said judgments, is on account of the prohibition imposed by the Code. It is this dichotomy that is the subject-matter of this article, which is structured as follows: first, the purpose behind the provision relating to maintenance in general and interim maintenance in particular is elaborated; secondly, in brief, the provision relating to revision in the Code is mentioned; thirdly, the dictionary meaning of interlocutory order and relevant test for determining an intermediary or quasi-final order is elucidated; fourthly, the ratio decideni of two different decisions of the Delhi High Court on either side of the spectrum is summarised; and lastly, in light of the foregoing discussion, the answer is given as to which of the two varying views is correct.

Section 125 and interim maintenance

The Code of Criminal Procedure, 1973, is primarily a code, as the name suggests, for codifying the provisions relating to criminal procedure. So, an obvious question arises regarding the existence of Chapter IX, particularly Section 125³, in the said Code. The basis of the question is that the provision concerns a substantive right, apart from relating to a civil right. These features were discussed in the Report of the Joint Committee on the Code of Criminal Procedure Bill, 1970 (the Report)⁴ with a specific suggestion also being put forward that cases relating to maintenance ought to be left in the domain of the civil courts. Inter alia, the reason that appears from the said report for incorporating Section 125 in the Code was that, as compared to criminal cases, civil cases are disposed of with considerably more delay.

A facet of Section 125 is the power given to the Magistrate hearing the application for maintenance to grant interim maintenance, pending the former. Albeit before the Amendment in 2001, there was no specific provision relating to the grant of such relief in the Code. However, the courts recognised this power and felt that if such power is not exercised, the ultimate objective of granting maintenance will be defeated. In Sumitra v. Budha Ram⁵, the purpose is made clear by the Rajasthan High Court in the following words:

5. … The purpose is that during the pendency of maintenance application, applicant may get some amount so that he or she may make both ends meet. It is in order to ensure that the neglected wife is not left beggared and destituted on the scrap heap of society and thereby driven to a life of vagrancy, immorality, and crime for their subsistence.

Regarding how one could challenge the order of maintenance, a suggestion was put forth in the preparation of the report that it could be done at least once in appeal. However, the said suggestion was negatived on the ground of delay, and it was decided that the correct procedure would be to impugn the same in a revisional proceeding. Since there was no provision for the grant of interim maintenance, no question arose for the Joint Committee to discuss how to challenge an order granting interim maintenance.

Revision

Though not mentioned in the Code, the meaning of the term “revision” is clear from the purpose for which it is to be used i.e. it is a process for the satisfaction of the revisional court regarding the legality, propriety, or correctness of any sentence, finding, or order of any inferior court (Section 3976⁶). Under the Code, revisional power can be exercised by either the Sessions Court or the High Court. Regarding the scope and object of the power of revision, the following words, mentioned by the Supreme Court in Malkeet Singh Gill v. State of Chhattisgarh⁷, are instructive:

10. … the scope of interference in revision is extremely narrow. The object of the provision is to set right a patent defect or an error of jurisdiction or law. There has to be well-founded error which is to be determined on the merits of individual case. It is also well settled that while considering the same, the Revisional Court does not dwell at length upon the facts and evidence of the case to reverse those findings.

Not only is the manner in which the power is to be exercised narrowed, but the Code also expressly narrows the matters in which the Revisional Court can interfere. One such limitation is that there can be no exercise of revisional power concerning an interlocutory order.

Rejecting the binary bifurcation

The old Criminal Procedure Code of 1898, which preceded the existing Code, did not make any distinction between interlocutory and other kinds of orders. In the Report, taking up interlocutory orders in revision proceedings was considered to be one of the chief factors causing the delay in the disposal of cases. When a question was raised regarding the precise meaning of interlocutory order, the question was not received with a concrete and concise answer. Since the meaning is not provided in the statute either, it will be prudent to refer to the dictionary meaning of the term to form a preliminary idea:

(i) The New Lexicon Webster’s Dictionary: Pronounced and arising during a legal procedure, not final.

(ii) Black’s Law Dictionary: Provisional; temporary; not final. Something intervening between the commencement and the end of a suit which decides some point or matter but is not the final decision of the whole controversy.⁸

In S. Kuppuswami Rao v. R.⁹, it would appear that the Federal Court accepted the dictionary meaning, as it stated that:

If their decision, whichever way it is given, will, if it stands, finally dispose of the matter in dispute, I think that for the purposes of these rules it is final. On the other hand, if their decision, if given in one way, will finally dispose of the matter in dispute, but, if given in the other, will allow the action to go on, then I think it is not final, but interlocutory.

However, in Madhu Limaye v. State of Maharashtra¹⁰, the Supreme Court did not find itself in agreement with the binary form of the bifurcation and observed that:

13. … the real intention of the legislature was not to equate the expression “interlocutory order” as invariably being converse of the words “final order”. There may be an order passed during the course of a proceeding which may not be final in the sense noticed in Kuppuswami case¹¹ but, yet it may not be an interlocutory order — pure or simple. Some kinds of order may fall in between the two. By a rule of harmonious construction, we think that the bar in sub-section (2) of Section 397 is not meant to be attracted to such kinds of intermediate orders.

Although the catena of cases on the topic has not exhaustively laid down what amounts to an interlocutory order and an intermediate or quasi-final order, nevertheless, they have laid down tests to be applied for classifying an order in one branch or another. In Mohit v. State of U.P.¹², parameters to be fulfilled for one relevant test, for the present purpose, have been explained in the following quote:

25. … an order which … decides certain rights of the parties cannot be said to be an interlocutory order so as to bar a revision to the High Court against that order as contemplated under Section 397(2)¹³ CrPC.

Same Court, different decisions

As shown in the initial part of this article, there is no doubt that the order granting maintenance under Section 125 of the Code is revisable. However, because of the variance in the understanding of the relevant provisions and, consequently, the conflicting judgments on either side, there remains a lack of uniformity regarding the decisions on the maintainability of the revision application against an order granting interim maintenance. To bring out the uncertainty, two judgments from the Delhi High Court, given by Benches of different strengths with opposite answers to the same question, have been discussed.

Jyotsana Sharda v. Gaurav Sharda

In this case the decision hinged on the applicability of the judgment of the Supreme Court to the issue at hand. The Single Judge reasoned that notwithstanding the authority in Amar Nath v. State of Haryana¹⁴ which in no uncertain terms lays down the law that any order that substantially affects the rights of the accused and decides certain rights of the parties cannot be said to be an interlocutory order, the issue at hand did not warrant the applicability of the same. The reason for the denial was that the decision to grant interim maintenance, despite affecting the rights of the revision applicant, did not decide his rights once and for all.1¹⁵

With respect, the reasoning of the Single Judge is not correct. The introduction of the last phrase, once and for all, to dismiss the application at the threshold, despite expressly recognising the impact of the order on the right of the affected party, removed the distinction between interlocutory and intermediate or quasi-final orders and went against the decisions of the Supreme Court in Madhu Limaye¹⁶.

Manish Aggarwal v. Seema Aggarwal

A few years later, the Division Bench took the exact opposite view compared to Jyotsana Sarda¹⁷ without expressly referring to it. After analysing judgments on both sides and relying on the proposition laid down in Amar Nath case¹⁸, the Division Bench opined that:

25. … The issue arises from the second proviso to sub-section (1) of Section 125 CrPC which provides for grant of interim maintenance i.e. whether criminal revision would be maintainable qua such determination. Once again, the same principle would apply … since the nature of the order is such that it would be really an intermediate order affecting the vital rights of the parties. It can even result in consequence of civil imprisonment for violation. Thus, both kinds of orders under Section 125 CrPC i.e. interim maintenance and the final order would be amenable to the revisional jurisdiction.¹⁹

Reaching the correct conclusion

The decision on the issue by the M.P. High Court, which prompted the present article, sides with the ratio in Manish Aggarwal case.²⁰ In the respectful opinion of the author, these judgments lay down the correct law. If the contrary opinion is accepted, it will restore the position of S. Kuppuswami case²¹ as laying down the law, which view has been rejected by the Supreme Court.

The rationale behind the rejection is apparent. According to Section 125 of the Code, the application for grant of interim maintenance is to be disposed of within sixty days from the date of the service of notice of the application to such person (respondent). Additionally, as per the plain text of the provision, the maintenance is to be payable from the date of the order or, if the court so directs, from the date of the application. However, practically, the time taken to dispose of the application is significantly more than what is statutorily envisaged. Moreover, after a decision of the Supreme Court²² , the discretion about the time from which the maintenance is to be granted has been taken away, with the judicial mandate now requiring the same from the date of the application. A combination of these factors stretches the period and, consequently, the financial burden for which the respondent in the maintenance application is liable. This, in turn, increases the consequences (as mentioned in Manish Aggarwal case²³) to which the respondent can become subjected to. The legal status quo, as explained, clearly amounts to affecting a substantial right of a party and thus fulfils the criteria laid down in Amar Nath case²⁴ for what constitutes a revisable order.

Therefore, in light of the foregoing discussion, it is concluded that the revision application against an order granting interim maintenance is maintainable.