Gayatri vs Om Prakash

R.S. Chauhan, J.—The petitioner has challenged the order dated 3.12.1999 passed by the Special Judge SC/ST (Prevention of Atrocities) Cases-cum-Additional Sessions Judge, Pratapgarh whereby he has modified the order dated 20.10.1997 passed by the Civil Judge, vide order dated 20.10.1997, the learned Civil Judge had allowed the application u/s 125, Cr. P.C. and had directed that the maintenance of Rs. 400 per month shall be paid to the petitioner by the non-petitioner from the date of filing of the application. Since, the non-petitioner was aggrieved by the said order, he filed a revision petition before the District and Sessions Judge. Subsequently, the case was transferred to the Court of Special Judge, SC/ST (Prevention of Atrocities) Cases-cum-Additional Sessions Judge. Vide order dated 3.12.1999 the learned Judge was pleased to direct that the maintenance amount should be paid not from the date of the application, but from the date of the order passed by the learned Magistrate.

The petitioner is aggrieved by the fact that the maintenance is directed to be paid from the date of the order and not from the date of the application. Hence, this miscellaneous petition before us.

The brief facts of the case are that the petitioner, Gayatri, was married to the non-petitoner, Om Prakash, on 22.1.1987 according to the Hindu rites. Just within four months of the marriage, differences arose between the parties because of the alleged cruel treatment meted out to the petitioner by the non-petitioner and his family members. According to the petitioner, she fell ill in May, 1987. But, despite her illness, her husband and her in-laws did not look after her. Subsequently, on 6.5.1987 her father took her back to her parental home. Since then, she has been living with her brother. She has also claimed that on 23.7.1988 her husband remarried with one Manjula Devi, D/o Motilal. She further claimed that since she is unable to maintain herself, therefore, the non-petitioner should be directed to provide maintenance to her u/s 125, Cr.P.C.

In order to prove her case, the petitioner examined six witnesses and submitted one document. In order to substantiate his case, the non-petitioner examined two witnesses but did not submit any document. After going through the oral and documentary evidence, vide order dated 20.10.1997 the learned Magistrate was pleased to direct the non-petitioner to pay maintenance of Rs. 400 per month as mentioned above. The non-petitioner had filed a revision petition against the said order. Vide order dated 3.12.1999, the learned Judge was pleased to modify the order dated 20.10.1997 as mentioned above.

Mr. Manish Shishodia, the learned Counsel for the petitioner, has argued that the grant of maintenance from the date of the application or from the date of the order is a discretion vested with the Trial Court. According to him, the case was pending from 1989 till 1997, i.e., for a long period of six years. During this period, no interim maintenance was granted by the learned Magistrate. Therefore, the learned Magistrate was certainly justified in granting the maintenance from the date of the application instead of from the date of the order. He has further contended that according to the learned Judge, the inordinate delay of six years has been caused by the petitioner as she did not examine any witness from 6.1.1993 till 13.6.1993. However, according to him, this is a misreading of the order-sheets of the Trial Court which have also been placed before us. According to him, a bare perusal of the order-sheets would clearly reveal that the delay had been caused not just by the petitioner, but more so by the absence of the Presiding Officer and by the strike observed by the lawyers. Therefore, the entire blame cannot be placed on the petitioner''s shoulder for the said delay of two years. Since, the learned Judge has misread the judicial record, therefore, the modification ordered by him deserves to be quashed and set aside.

Mr. Vikas N. Joshi, the learned Counsel for the non-petitioner, on the other hand, has argued that Section 125, Cr.P.C. clearly lays down that the maintenance should be paid from the date of the order. It is only for special reasons that the maintenance can be directed to be paid from the date of the application. According to him, the learned Magistrate has not given a single reason for directing that the maintenance should be paid from the date of the application. Thus, the learned Magistrate has not followed the tenor of the said sub-section. One of the reasons given by the learned Judge for modifying the order of the learned Magistrate is that the learned Magistrate has not given any reason for directing the payment of the maintenance from the date of the application. Hence, according to Mr. Joshi, the learned Judge was legally justified in modifying the order dated 20.10.1997.

We have heard both the Counsel for the parties, and have also critically examined the impugned judgment passed by the learned Judge.

As prevalent in 1997, Sub-clause (2) of Section 125, Cr.P.C. was as under:

Such allowance shall be payable from the date of the order, or if so ordered, from the date of the application for maintenance.

However, a new Sub-clause (2) was substituted by the Act 50 of 2001 which came into effect on 24.9.2001, which reads as under:

Any such allowance for the maintenance or interim maintenance and expenses for proceeding shall be payable from the date of the order, or, if so ordered, from the date of the application for maintenance or interim maintenance and expenses of proceeding, as the case may be.

A bare perusal of the unamended and the amended Sub-clause (2) clearly reveal that the provisions with regard to the payment of maintenance from the date of order/from the date of application has not changed materially. The amended section has merely introduced the concept of "the payment of the interim maintenance and expenses of the proceeding". Thus, even the unamended provision had empowered the learned Magistrate to direct the payment of the maintenance from the date of order or if so ordered, from the date of application. The said provision certainly confers on the Magistrate a discretionary power with regard to the date of payment of the maintenance.

The issue whether the Magistrate is required to give reasons for directing the maintenance to be paid from the date of application or not has taxed the judicial imagination. Various High Courts have given different opinions and at times given contradictory opinions on this point. In the cases of Mukhdum Ali Vs. Nargis Bano and Another, , Samyadin v. State of U.P. 2001 Cr.L.J. 2064 (All.) and Kaushaliya Bai Dinkar Mulae v. Dinker Mahadeorao II 2001 (4) Grimes 225 (Bom.), the Hon''ble High Courts of Delhi, Allahabad and Bombay respectively are of the view that the order of maintenance should generally be made from the date of application unless there are compelling reasons to deprive this concession. In the case of Nachhattar Singh v. Harjinder Kaur 1995 Cr.LJ 2276 and in Gurpartap Singh v. Smt. Satwant Kaur and Anr. 1990 Cr.LJ 152 the Hon''ble Punjab and Haryana High Court have taken the view that where the Court awards maintenance from the date of application, it is not obligatory for the Court to record reasons for the same.

In the case of Shiv Singh v. Smt. Susheela Kumar and Anr. 1982 RCC 178, the question did arise as to from what date the amount of maintenance should be awarded. However, without discussing the issue in detail this Hon''ble High Court merely observed that "under Sub-section (2) of Section 125, Cr.P.C, the allowance under Sub-section (1) of Section 125, Cr.P.C., shall be payable from the date of the order or application for the maintenance if so ordered. The Magistrate has, therefore, jurisdiction to order that the amount should be payable from the date of application and no interference is generally called for in such an order of the Magistrate." Hence, in this particular case, there is no discussion on the issue whether the Magistrate needs to give any reason in directing that the maintenance should be paid from the date of the application and not from the date of order. Thus, this particular judgment is hardly of any help. Similar is the case of Smt. Savita Sharma v. Shri Krishan Murari 1990 (1) RLR 400.

In case of Mangi Lal v. Mussamat Sakhi 1991 RCC 430, the Hon''ble High Court has merely observed that "it is the discretion of the Court allowing maintenance to fix a particular date from which the maintenance has to be given. The facts and circumstances of each individual case are taken into consideration by the Courts in passing order for maintenance from a particular case." Thus, even in this case the Hon''ble Court does not delve on the issue whether reasons need to be recorded by the learned Magistrate or not for directing the payment to be made from the date of application. It seems that for the first time in the case of Qamruddin v. Srimati Rashida 1992 (1) WLC (Raj.) 305, the Hon''ble High Court has stated that "a bare reading of Section 125, Cr. P.C. and more so Subsection (2) will show that the allowance shall be payable from the date of the order, or, if so directed, from the date of the application for maintenance. Therefore, if the Court feels that the amount of maintenance should be ordered from the date of application there should be some reasons for ordering so."

In the case of Ameen Khan v. State of Rajasthan and Anr. 1999 (1) WLC (Raj.) 654, the Hon''ble High Court has again reiterated that unless no date is specified in the order, the maintenance is payable from the date of the order, but the Court has a discretion to specify that the maintenance shall be payable from the date of application. In that case, since no interim maintenance was granted to the wife for nine years during pendency of case, therefore, the Hon''ble Court was of the view that the learned Sessions Judge was perfectly justified to grant maintenance to her from the date of application.

In order to appreciate the spirit of the law, one should first consider the letter of the law. Section 125(2), Cr.P.C. clearly states that the maintenance should be payable from the date of the order, or if so ordered, from the date of the application.

Undoubtedly, a discretion has been vested in the Magistrate to order the payment of the maintenance either from the date of order or from the date of application. But, the tenor of the law is that ordinarily maintenance should be payable from the date of the order. By using the words "if so ordered" clearly, the Legislature imposes a duty on the Magistrate to give reasons for ordering the payment of maintenance from the date of application. For, an order without reason or a non-speaking order would be invalid in the eyes of law. Therefore, when the Magistrate directs that the payment should be done from the date of the application, he is legally bound to state the reasons for such direction.

Section 125(2) Cr.P.C. tries to balance the conflicting interest of the wife for maintenance and the interest of the husband. Since, a financial burden has been placed on the husband, the Legislature in its wisdom thought it proper that the financial burden should begin from the date of order. However, as Section 125 Cr.P.C. is a social beneficial piece of legislation, which has been enacted to protect the wife from vagrancy and poverty, therefore, a discretion has been given to the Magistrate to consider all the facts of the case and to decide if under particular circumstances the benefit of maintenance should be given from the date of the application. But, simultaneously while giving benefit of maintenance from the date of application, the Magistrate is legally required to show an application of a judicious mind by giving reasons for his direction. Therefore, in my humble opinion, the tenor and the spirit of Sub-clause (2) of Section 125, Cr.P.C. is that the reasons must be recorded by the Magistrate while directing that the maintenance be payable from the date of application.

In the instant case, the learned Magistrate has merely relied upon a judgment of the Hon''ble Rajasthan High Court in the case of Mangilal v. Sakhi (supra), 14 in order to direct that the payment be made from the date of application. He has not stated any reason for giving such benefit to the petitioner. However, the reasons are not far to seek during the course of the trial, the petitioner has also not been paid any interim maintenance by the non-petitioner. The non-petitioner has also re-married, therefore, the petitioner has no other choice but to stay with her parents and brothers. The petitioner is unable to maintain herself because of her ill-health. It is the legal and moral duty of the husband to maintain his wife, and more so when he has turned her out of the house and re-married. Therefore, the learned Judge was not justified in modifying the order dated 20.10.1997. Moreover, the learned Judge has misread the order-sheets which have been placed before us by the learned Counsel for the petitioner. A bare perusal of the order-sheets clearly reveal that the delay in the proceedings was not only due to the petitioner, but was also due to the circumstances beyond her control. Thus, she cannot be blamed for the inordinate delay of six years.

Considering all these facetes of the case, in the interest of justice, we quash and set aside the order dated 3.12.1999 and direct the non-petitioner to pay maintenance of Rs. 400 per month from the date of application to the petitioner. Moreover, considering the fact that Rs. 400 per month are too little for maintenance in the present scenario, the petitioner is free to file an application for enhancement of the maintenance before the learned Magistrate in accordance with law.

With these observations, the petition is allowed.