Anil Kumar Nigam vs State of U.P. and Another

Rajesh Chandra, J.—The husband Anil Kumar Nigam (hereinafter referred as opposite party) has filed this revision against the judgment and order dated 20.4.2002 passed by Civil Judge (Jr. Div.)/Magistrate Ist Class Mahoba, allowing maintenance of Rs. 3500/- per month to the Opp. Party-wife Smt. Neeraj (hereinafter referred as applicant) from the date of application moved u/s 125 Code of Criminal Procedure.

In brief, the facts of the case are that Smt. Neeraj moved an application against her husband Anil Kuamr Nigam u/s 125 Code of Criminal Procedure for monthly maintenance of Rs. 5,000/-. She interalia alleged that the marriage had taken place about one year before the filing of the application but after the marriage, she was being harassed and teased for demand of dowry. She was beaten off and on and ultimately was turned out from her marital home and since then she is living at her parental house and is unable to maintain herself. The husband is a teacher a and is earning Rs. 9,000/- per month as salary. Moreover, his father is having 85 bighas of irrigated agricultural land from which the revisionist is having an earning of Rs. 2.5 lakhs per year.

Opposite party Anil Kumar Nigam filed his objections and admitted the marriage. He, however, denied that any demand of dowry was made or the applicant was subjected to any ill treatment or harassment. His contention is that the applicant-wife Smt. Neeraj was always insisting upon the husband to live separately from his parents and when he did not subscribe to this wish she started living with her parents. He admitted that he is employed as teacher but denied that he is having any agricultural income. He also contended that the applicant is having M.A. degree and is earning Rs. 2,000/- per month by doing tuition.

Learned lower Court recorded the evidence of the parties and then came to the conclusion that the wife is living separately from her husband for sufficient reasons, she is unable to maintain herself, the husband has neglected to maintain her and the income of the husband is about Rs. 9,000/- from salary apart from the agricultural income. The Magistrate then awarded maintenance of Rs. 3500/- per month to the wife-applicant from the date of application. It is against this order dated 20.4.2002 that the present revision has been filed.

At the time of argument in the revision, nobody was present for the wife hence, learned Counsel for the revisionist as well as learned A.G.A. have been heard.

Learned Counsel for the revisionist did not dispute the finding that the wife is living separately from her husband for sufficient cause nor the finding that she is unable to maintain herself. He simply argued that the amount of maintenance is excessive and that the same ought to have been allowed from the date of order and not from the date of application. His contention is that the revisionist is not having any agricultural income as the entire land is in the name of his father. He further contended that the maintenance ought to have been allowed from the date of order and if the Magistrate was of the opinion that the maintenance should be allowed from the date of application, he was obliged to give special reason for the same.

I have gone through the record. The lower Court has observed that the opposite party is having agricultural income and according to him, he has 20-25 acers of land but without any source of irrigation. The lower Court further observed that the brother of the husband, however, admitted that the land is being irrigated through tube-well. The learned lower Court has not given a categorical finding that the agricultural land is in the name of the applicant.

In the petition itself, the applicant-wife Smt. Neeraj has admitted that the father of the opposite party husband is having 85 bighas of land. Moreover, opposite party-husband has also stated on oath that the agricultural land is in the name of his father. If this is the situation, then it cannot be urged that the opposite party-husband is having any agricultural income. It is the income of the father which cannot be clubbed with the income of the husband.

In these circumstances, this finding of the lower Court that the husband is having agricultural income is against the record.

So far as the income from the salary is concerned, the husband has admitted that he is working as a teacher. The lower Court has held that the basic salary of the husband is Rs. 6025/- hence, the total salary shall not be less than Rs. 9,000/-. I think that the conclusion is correct and the income of the husband from the salary may be taken as Rs. 9000/- per month. The learned lower Court has allowed Rs. 3500/- per month for the maintenance of the wife taking into account the salary as well as the agricultural income. However, since the income from the agriculture is not proved the maintenance to the tune of Rs. 3500/- is excessive.

The next argument of the learned Counsel for the revisionist is that the lower Court has allowed the maintenance from the date of application but no special reason has been given and as such the order of the lower Court is perverse.

I considered over the argument and I feel that it is devoid of merits. Learned State counsel has relied upon the judgment of the Hon''ble Apex Court in the case of Shail Kumari Devi v. Krishan Bhagwan Pathak, reported in 2008 CLJ 3881. The Hon''ble Apex Court has held as under in para-47 of the judgment reported in the above said journal.

We, therefore, hold that while deciding an application u/s 125 of Code, a Magistrate is required to record reasons for granting or refusing to grant maintenance to wives, children or parents. Such maintenance can be awarded from the date of order, or if so ordered, from the date of the application for maintenance,as the case may be. For awarding maintenance from the date of application, express order is necessary. No special reasons, however, are required to be recorded by the Court. In our judgment, no such requirement can be read in Sub-section (1) of Section 125 of the Code in absence of express provision to that effect.

In view of the judgment of Hon''ble Supreme Court, it is not , at all, necessary for the Magistrate to assign any reason for granting the maintenance from the date of application. Thus,there is no illegality or irregularity in the finding of the Magistrate.

In view of the observations made above, revision is partly allowed and the order of the Magistrate is modified to the extent that the wife Smt. Neeraj shall be entitled for maintenance at the rate of Rs. 3000/- per month from the date of application i.e. from 13.6.2000.