Deepak Jain vs Usha Jain <BR> Smt. Usha Jain and Another Vs Deepak Jain

Sandeep Mehta

These two revisions arise out of the order dated 27.9.2010 passed by the learned Judge, Family Court, Jodhpur in Cr. Original Case No. 126/2002 "Usha Jain & Anr. Vs. Deepak Jain", whereby the learned Judge, Family Court has allowed the application filed by Smt. Usha Jain and Sonal (hereinafter to be referred to as ''the respondents-applicants'') wife and daughter respectively of Shri Deepak Jain (hereinafter to be referred to as ''the petitioner-husband) u/s 125 Cr.P.C. and has directed "the petitioner-husband" to make payment of Rs. 1500/- per month each to the respondents-applicants as maintenance allowance from the date of passing of the order. The petitioner-husband as well as respondents-applicants have assailed the order of the learned Judge, Family Court by filing these two cross revisions being Cr. Revision No. 901/2010 (Deepak Jain Vs. Usha Jain & Anr.) and Cr. Revision No. 435/2011 (Smt. Usha Jain & Anr. Vs. Deepak Jain).

The petitioner-husband by way of the instant revision has challenged the order passed by the learned Judge, Family Court, whereby he has been directed to make the payment of maintenance allowance to his wife and daughter. The challenge has been made on three grounds, the first being that he was not provided with an adequate opportunity of leading evidence and contesting the matter because the case was proceeded with ex-parte without any justification. The second ground, which has been raised for assailing the order impugned, is that the respondent-applicant Smt. Usha deserted the petitioner-husband Deepak Jain since the year 1997 without any justification and therefore, she was disentitled to claim maintenance and the third ground, which has been advanced is that since the petitioner was unable to earn and was not having the means to make the payment of maintenance awarded by the learned Judge, Family Court, to the respondents-applicants, hence, the order impugned was absolutely illegal.

The respondents-applicants have challenged the order dated 27.9.2010 on the ground that the same suffers from a patent illegality inasmuch as the amount of maintenance was ordered to be paid only from the date of passing of the order and not from the date of filing of the application. The second contention of the respondents-applicants is that the amount of Rs. 1500/- awarded to the two ladies as maintenance, is on the lower side.

Shri J.S. Choudhary learned Senior Advocate assisted by Shri Pradeep Choudhary, assailing the order passed by the learned Judge, Family Court contended that the impugned order is absolutely illegal. It has been submitted that the learned Judge, Family Court without any justification proceeded ex-parte upon the application filed by the respondent/applicants and thus, wrongly awarded maintenance to them.

It has been submitted that after the evidence of the applicants had been completed, four witnesses were examined on the side of the petitioner-husband and evidence was closed on 14.7.2010. On that day, the next date, which was fixed for hearing, was 30.9.2010 as noted by the counsel for the petitioner Deepak Jain but the learned Judge, Family Court erroneously mentioned the date in the proceedings as 30.7.2010 instead of the date ''30.9.2010'' as communicated to the counsel. It is thus contended that the ex-parte proceedings were undertaken without any justification and evidence was recorded in absentia of the petitioner-husband.

Thereafter, the learned Judge, Family Court without any intimation to the petitioner-husband proceeded to decide the application ex-parte on 27.9.2010. It is thus, contended that the order impugned is absolutely illegal and and proceedings suffer from the vice of having been proceeded ex-parte without any justification.

Secondly, it is contended that it is the wife Smt. Usha Jain, who had deserted the husband i.e. the petitioner Deepak Jain and therefore, she was not entitled to claim and/or receive any amount of maintenance from him.

Thirdly, it is submitted that Smt. Usha Jain herself does the job of diamond cutting and tailoring and also does the business of supplying tiffins and thus, she is having capacity to earn, as such, the learned Judge, Family Court has wrongly held that she was unable to maintain herself. Fourthly, it has been submitted that the learned Judge, Family Court has not considered the evidence of the petitioner''s witnesses in the proper perspective.

Per contra, Shri H.M. Saraswat learned counsel for the respondents-applicants contended that the arguments raised on behalf of the petitioner-husband, that the ex-parte proceedings were wrongly initiated, is absolutely without any basis. In this regard, he submitted that the revision filed by the petitioner-husband is not supported by any affidavit in support of the averment regarding the wrong intimation of date of proceedings (30.7.2010) to the counsel as claimed in the revision. It has further been submitted that the averment made on behalf of the petitioner-husband that the date was wrongly intimated to the counsel, has not been supported by any entry made in the counsel''s diary, by which it could have been ascertained that the intimation was given to the counsel was of a date other than the one when the Family Judge proceeded ex-parte. Shri Saraswat also submitted that the learned Judge, Family Court has without justification directed maintenance to be paid to the respondents-applicants only from the date of the order and not from the date of the application. He urged that the amount of maintenance, which has been directed to be paid to respondents-applicants is not sufficient to maintain them and therefore, the same deserves to be enhanced. Shri Saraswat placed on record the judgment dated 25.4.2003 passed by the learned Judge, Family Court in the Civil Original Case No. 129/97, whereby the application filed by petitioner-husband u/s 13 of the Hindu Marriage Act has been rejected holding that the ground raised by him regarding his wife Smt. Usha Jain having deserted him as well as the allegation of cruelty levelled against her have been repelled. He submits that in view of the aforesaid findings of the learned Judge, Family Court it does not lie in the mouth of the petitioner-husband now to raise an issue that his wife had deserted him so as to disentitle her from claiming maintenance.

Having considered the arguments advanced at the bar and upon going through the record, the first aspect this Court has to consider is, as to whether the proceedings were wrongly proceeded ex-parte against the husband-petitioner. In this regard, the primary and foremost fact, which this Court has to consider is the application filed by the husband-petitioner u/s 126(2) Cr.P.C., which was moved subsequent to the ex-parte proceedings being undertaken by the Family Court on 1.10.2010. It was claimed in the application that the date, which was intimated to the counsel in the proceedings u/s 125 Cr.P.C. was 30.9.2010 and thereafter, the learned Judge, Family Court without any justification, changed the date and preponed the same to 30.7.2010 without intimation either to counsel, who was appearing before the Family Court on behalf of the petitioner-husband. The said application filed on behalf of the petitioner-husband has been rejected by the learned Judge, Family Court on 3.11.2010. The order rejecting the application has not been placed on record of the instant revision. The only inference, which can be drawn from the petitioner''s action in not placing the said order on record and not assailing it before this Court in the revision, can be that he did not intend to challenge the same. That apart, a perusal of the record of the case reveals that the husband-petitioner moved the application u/s 126(3) Cr.P.C. before the Judge, Family Court on 1.10.2010 and as per the averment made in the application, his counsel had been intimated about the date fixed by the learned Judge, Family Court as being 30.9.2010. A perusal of the certified copy of the order, which has been annexed to the application u/s 126(2) Cr.P.C. reveals that the application for seeking the copy of the order was moved on 28.9.2010. If at all the petitioner was intimated about the date having been fixed by the learned Judge, Family Court as being 30.9.2010, then it is a matter of utter surprise, as to how the application for seeking the certified copy of the order could be filed on 28.9.2010. The copying application form is also available on record, which bears the date 28.9.2010. From these circumstances, it is apparent that the contentions, advanced in the application u/s 126(2) Cr.P.C. regarding the ex-parte proceedings having been wrongly undertaken by the Judge, Family Court, are absolutely false and frivolous. A perusal of the order-sheets of the original proceedings u/s 125 Cr.P.C., which was moved way-back in September 2002 reveals that the petitioner-husband tried to delay the proceedings by adopting one means or the other.

Thus, the plea taken by him in regard to the ex-parte proceedings undertaken wrongly by the learned Judge, Family Court cannot be accepted.

The contention advanced by the counsel for the petitioner-husband regarding the respondent-applicant Smt. Usha Jain having deserted him cannot be accepted on the face of the record, simply for the reason that the said fact has already been held against the petitioner-husband in the judgment dated 25.4.2003 passed by the learned Judge, Family Court, whereby the application filed by the petitioner-husband u/s 13 was rejected. As per the information given to this Court, the judgment has become final.

So far as the contention regarding the inability to earn, which has been advanced on behalf of the petitioner-husband is concerned, the petitioner-husband in his evidence has deposed that his mental condition is not sound. He has also stated that he was an LIC agent earlier but thereafter, the agency was terminated. Though a copy of the letter dated 9.8.2004 terminating the petitioner''s LIC Agency is available on record but the petitioner-husband has not proved the same by leading in evidence in support thereof. The document has not been exhibited during the enquiry. In view of these facts, the contention advanced by the petitioner-husband regarding not being in a position to earn anything cannot be accepted and the learned Judge, Family Court has rightly repelled this contention in the judgment impugned. No convincing evidence has been led regarding the respondents-applicants being in a position to earn and maintain themselves.

Now coming to the grievance of the counsel for the respondents-applicants regarding the amount of maintenance being on the lower side and the order of maintenance directing payment of maintenance only from the date of the order.

So far as the question of enhancement is concerned, this Court is of the opinion that as the application u/s 125 Cr.P.C. was filed way-back in the year 2002 and has been decided in the year 2010, the better option for the applicants would be to move the Family Court by way of filing an application for enhancement u/s 127 Cr.P.C. and in the event of such an application being filed, the learned Judge, Family Court would be under an obligation to consider and decide the same in accordance with law. But at the same time, the order, whereby the payment of the maintenance has been limited from the date of passing of the order, cannot be justified. Hon''ble the Apex Court in the case of Shail Kumari Devi and Another Vs. Krishan Bhagwan Pathak @ Kishun B. Pathak, has held that ordinarily the application u/s 125 Cr.P.C. has to be allowed from the date of filing of the application. The husband-petitioner is under an obligation to properly maintain his wife and daughter and he has to make all efforts for earning and maintaining them as it is a moral obligation as well as a legal duty cast upon him. He cannot avoid his obligation to maintain his spouse and children by taking a plea that he is not able to earn anything.

The Hon''ble Apex Court in the case of Shail Kumari held as under:-

In our considered opinion, the High Court is not right in holding that as a normal rule, the Magistrate should grant maintenance only from the date of the order and not from the date of the application for maintenance. And if he intents to pass such an order, he is required to record reasons in support of such order. As observed in K. Sivaram, reasons have to be recorded in both the eventualities. The Court was also right in observing that wherever Parliament intended the Court to record special reasons, care had been taken to make such provision by requiring the Court to record such reasons.

Moreover, duration of litigation is not within the power or in the hands of the applicant and entitlement to maintenance should not be left to the uncertain date of disposal of the case. Keeping in view this hard reality, this Court in Savitri held that in absence of prohibition to grant ''interim'' maintenance such power could be read in the salutary provision of Section 125 of the Code ensuring maintenance to wife unable to maintain herself during the pendency of proceedings. Even Parliament took into account the reality and by the Amendment Act, 2001 express provision has been made for the purpose.

Again, maintenance is a right which accrues to a wife against her husband the minute the former gets married to the latter. It is not only a moral obligation but is also a legal duty cast upon the husband to maintain his wife. Hence, whenever a wife does not stay with her husband and claims maintenance, the only question which the Court is called upon to consider is whether she was justified to live separately from her husband and still claim maintenance from him? If the reply is in the affirmative, she is entitled to claim maintenance. It is, therefore, open to the Magistrate to award maintenance from the date of application and there is nothing which requires recording of ''special reasons'' though he must record reasons as envisaged by sub-section (6) of Section 354 of the Code in support of the order passed by him.

We, therefore, hold that while deciding an application u/s 125 of the 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 the 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 the 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.

It is evident that the learned Judge, Family Court whilst awarding the maintenance to the applicants-respondents, has given no reasons as to why the maintenance was not being awarded from the date of the filing of the application. A perusal of the record/order-sheets of the Family Court reveals that the respondents-applicants were awarded amount of Rs. 800/- and 600/- per month respectively from the petitioner-husband from 24.8.2004 as a measure of interim maintenance.

The upshot of the above discussion is that the revision (i.e. Cr. Revision No. 901/2010) filed by the petitioner-husband Deepak Jain fails and is hereby rejected. The Revision No. 435/2011 filed by the respondents-applicants is allowed in part and it is hereby directed that the applicants shall be entitled to receive maintenance from the petitioner-husband at the rate awarded by the learned Judge, Family Court. The order awarding maintenance shall be effective from the date of filing of the application. If any amount has been paid by the petitioner-husband till the date of passing of the order of maintenance towards interim maintenance, the same shall be reduced from the accrued arrears. The learned Family Judge shall forthwith take steps to enforce the order of maintenance.