Gurpartap Singh vs Satwant Kaur

S.S. Grewal, J.

Satwant Kaur (hereinafter referred to as wife) on her own behalf and on behalf of her minor daughter Pavitar Puneet, as her mother and natural guardian, filed application under section 125 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the Code) for grant of maintenance against her husband Gurpartap Singh, on the averments that she has no source of income of her own whereas her husband Gurpartap Singh who has owned considerable immovable property also earns Rs. 15000/ per month and that he has refused and neglected to maintain them. On similar grounds maintenance pendente lite was also prayed for.

The husband in his reply admitted the relationship between the parties and pleaded that his wife has intentionally withdrawn from his company without any sufficient cause and she was not entitled to any maintenance. It was also pleaded that the wife has been earning Rs. 1000/ from stitching clothes and by engaging herself in knitting work and that she has sufficient income to maintain herself and her minor daughter.

The Judicial Magistrate 1st Class, Amritsar, vide his impugned order dated July 25 1988, Annexure P1, held that the husband had neglected and refused to maintain his wife and their daughter and awarded Rs. 150/ per month as maintenance pendente lite to the wife and Rs. 100/ per month to the minor daughter from the date of application. On revision Additional Sections Judge, Amritsar, vide impugned order dated November 29, 1988 dismissed the revision petition.

Aggrieved against the order of the Courts below the husband has filed the present petition under Section 482 of the Code.

On behalf of the husband, it was submitted that both the Courts below have erred in law in not giving any cogent or special reasons for granting the maintenance, and in the absence of any specific finding that the husband was guilty of the delaying tactics in trial and had been putting obstacles in early disposal maintenance pendente lite could not be granted from the date of the application. Reliance in this respect was placed on Single Bench authority of this Court in Charanjit Singh Grewal alias Goggi v. Inderjit Kaur, 1988(2) RCR(Crl.) 332 (P&H) : 1988(2) P.L.R. 297, wherein it was held "that a perusal of the above provision would show that maintenance is to be awarded from the date of order, but the Court is not debarred from awarding it from the date of application to make maintenance payable from the date of application, the Court must have cogent reasons for ordering so. Normally, the reasons relate to the conduct of the husband during the trial. The husband, who is guilty of delaying tactics in trial and had been putting obstacles in early disposal, can be directed to make the payment or maintenance from the date of application."

On the other hand, it was submitted on behalf of the wife and minor daughter that no special reasons are required to be given in case maintenance allowance is granted from the date of application. Reliance in this respect was placed on another Single Bench authority of this Court in Smt. Tripta v. Sat Parkash, 1985(2) Recent Criminal Reports 149 wherein it was observed that "it does not appear to be a correct proposition that Section 125 (2) has laid down that normally the allowance should be paid from the date of the order. A reading of this Section would show that it is discretionary with the trial court either to grant the allowance from the date of the order or from the date of application. There is no indication that if the maintenance is allowed from the date of the application, then some special reasons have to be given.

It is true that under the Code, there is no provision for filing an application for granting interim maintenance during the pendency of main application under Section 125 of the Code. However, such an application is by itself a separate matter and it has to be disposed of separately much earlier than the final order the main case. By an order of interim maintenance, the rights of the parties are affected and decided finally in respect of that subject matter and by no stretch of imagination such an order can be called an interlocutory order, as held in Single Bench authority of this Court in Sumer Chand v. Sandhuran Rani and another, 1987(2) RCR(Crl.) 357 (P&H) : 1988(2) P.L.R. 12

It would, thus, be desirable to get the opinion of the larger Bench on the point which constitutes substantial question of law of considerable public importance and is likely to arise repeatedly in future. The following point is, thus, referred to for the opinion of a larger Bench :

"Whether it is obligatory for the Court to give special reasons for granting maintenance/interim maintenance under Section 125 of the Code of Criminal Procedure, 1973, from the date of the application."

The record be placed before my lord Chief Justice for constituting appropriate Bench.

November 20, 1989.

Sd/ S.S. Grewal

Judge.

JUDGMENTOF DIVISION BENCH DATED 2821990

In a case for maintenance moved under section 125 of the Code of Criminal Procedure (in short, the Code) by wife and minor daughter, an application was filed for maintenance pendente lite in Court of a Magistrate at Amritsar. Maintenance pendente lite was allowed both to the wife and the daughter by the Magistrate from the date of applications. Revision preferred against that order was dismissed by Additional Sessions Judge, Amritsar. Both those orders were assailed in this Court under Section 482 of the Code and the line of attack was that maintenance pendente lite could not be granted from the date of the application. Considering the point of initiation of the interim maintenance, a substantial question of law, the learned Single Judge vide his order dated November 29, 1989, referred the matter for opinion of larger Bench. This is how the matter came before the Division Bench. Question referred for opinion in the order of reference runs as follows :

"Whether it is obligatory for the Court to give special reasons for granting maintenance/interim maintenance under Section 125 of the Code of Criminal Procedure, 1973, from the date of the application ?"

It is both moral and legal obligation of a person to maintain his wife and children. The wife is required to be maintained from the time of her marriage and the child from the time of his or her birth. Normally wife resides with her husband after the marital tie and is maintained in the house. So is the case with minor child after his/her birth. Thus the right of maintenance accrues to a wife immediately after she is tied maritally to her husband and to a minor child immediately after his or her birth. When a husband having sufficient means neglects or refuses to maintain his wife or a minor child, he can be compelled under section 125 of the Code to maintain them. The said provision of law also permits a wife to live separately or to refuse to live with her husband provided she has just ground for so doing and Court is permitted to make an order under aforesaid provision notwithstanding her separate living. Claim for maintenance normally takes birth under such situation and it can be said that a wife or a minor child has a cause of action against husband/father on his failure to discharge his recognised moral/legal obligation to maintain them. The right of maintenance which had already accrued is continuous one and cause of action arises only when that right is disrupted. However, a wife living separately may not feel like exercising her right of maintenance otherwise recognised by the society as well as law, and it being a rule of nature that a person gets something only when he/she claims the same, discharge of obligation can start only from the date of claim and it cannot possibly run earlier to the same. Date of claim of maintenance/interim maintenance obviously would be date of application for such maintenance/interim maintenance. The Chapter with regard to maintenance of wives and children in the words of Sir James Fitzstephen, provides "a mode of preventing vagrancy or at least or preventing its consequences." Section 25 of the Code thus is intended to fulfil the aforesaid social purpose. Its object is to compel a man to perform the moral obligation which he owes to society in respect of his wife and children. By providing a simple, speedy but limited relief, they seek to ensure that the neglected wife and children are not left beggared and destituted on the Scrapheap of society and thereby driven to a life of vagrancy, immorality and crime for their, subsistence. Subsistence is called for even during the pendency of the petition for maintenance and its need cannot by any stretch of imagination be said to start only when order for payment of maintenance is made, although it is subject to ultimate recognition of neglect or refusal to maintain.

Section 125 of the Code nowhere provides for interim maintenance or maintenance pendente lite. However, the apex Court has held in Smt. Savitri v. Gobind Singh Rawat, 1986, Recent Cri. Report 83 (SC) : AIR 1986 S.C. 984 in favour of the right of the petitioner under section 125 of the Code, to get interim maintenance which in our opinion obviously recognises the payment of maintenance since before the date of the order for maintenance under the aforesaid provision i.e. section 125 of the Code. It is further held therein that such an order may also be made in an appropriate case exparte pending service of notice of the application subject to subsequent modification, if necessary, which necessarily infers that order for interim maintenance is to be made from the date of application for such maintenance. This right has been recognised realising the fact that irrespective of the speedy remedy provided through section 25 of the Code, more often than not, proceedings for maintenance last sufficiently long for one reason or the other. In other words, emergency of the situation in the interest of the weaker section of the society, particularly when their subsistence is involved and the respondent owes moral obligation to maintain them which right of maintenance of the said section recognisedly has already accrued and is continuous has been recognised by the highest court of this Republic and the order of interim maintenance when made even if it operates from the date of that order is bound to precede the order in the main application the date of operation of which order alone is regulated by subsection (2) of Section 125 of the Code.

In the light of the above discussion, subsection (2) ibid in our considered opinion cannot be interpreted in a manner so as to conclude that normal rule is to make maintenance allowance payable from the date of the order and to make the same payable from the date of the application amounts to an exception to the said rule. A reading of the said sub section would, on the other hand, show that it is discretionary with the trial Court either to grant the allowance from the date of the order or from the date of application. There is no indication whatsoever in the language used by the legislation that if maintenance is allowed from the date of the application, some special reasons have to be given for the purpose. That sub section simply makes it discretionary for the Magistrate to award maintenance either from the date of order or from the date of application. It only provides outer limits so as to conclude that the Magistrate cannot fix future date for example two months subsequent to the passing of the order for payment of maintenance allowance nor earlier to the date of application, i.e., with retrospective effect. It is, therefore, not obligatory for the Court to give special reasons for granting maintenance/interim maintenance under section 125 of the Code, from the date of the application which is purely within its discretion,

However, we would like to mention here that by force of rule of jurisprudence every order had to be reasoned. Section 354 of the Code deals with contents of judgments and in clause (b) of sub section (1) thereof it is clearly mentioned that a judgment shall contain the point or points for determination, the decision thereof and the reasons for the decision. To that extent, the Court is required to support its decision on every point for determination with reasons and may give reasons in each of the two eventualities. Otherwise no special reasons are called for, for granting maintenance/interim maintenance under section 125 of the Code from the date of the application. We have said and it needs to be said again that section 125 of the Code is intended to serve a social purpose and provides a machinery for summary enforcement of the moral obligations of a man towards his wife and children so that they do not, out of sheer destitution become a hazard to the well being of orderly society. Question of giving special reasons for enforcement of said moral obligations during the pendency of a lis therefore, does not arise. The reference accordingly is answered in negative.

The case be now listed before learned Single Judge for decision.

Sd/ K.S. Bhalla,

Judge,

Sd/.S.D. Bajaj,

Judge.

28.2.1990

JUDGMENTOF SINGLE BENCH DATED 2571990.

S.S. Grewal, J.

Satwant Kaur (hereinafter referred to as wife) on her own behalf and on behalf of her minor daughter Pavitar Puneet, as her mother and natural guardian, filed application under Section 125 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the Code) for grant of maintenance against her husband Gurpartap Singh, on the averments that she has no source of income of her own, whereas, her husband Gurpartap Singh who own considerable immovable property also earns Rs. 1500/ per month and that he has refused and neglected to maintain them. On similar grounds maintenance pendente lite was also prayed for.

The husband in his reply admitted the relationship between the parties and pleaded that his wife has intentionally withdrawn from his company without any sufficient cause and she was not entitled to any maintenance. It was also pleaded that the wife has been earning Rs. 1000/ from stitching clothes and by engaging herself in knitting work and that she has sufficient income to maintain herself and her minor daughter.

The Judicial Magistrate 1st Class, Amritsar vide his impugned order dated July 25, 1988, Annexure p/1, held that the husband had neglected and refused to maintain his wife and their daughter and awarded Rs. 150/ per month as maintenance pendente lite to the wife and Rs. 100/ month to the minor daughter from the date of application. On revision Additional Sessions Judge, Amritsar, vide, impugned order dated November 29, 1988 dismissed the revision petition.

Aggrieved against the orders of the Courts below the husband has filed the present petition under Section 482 of the Code.

Vide order of this Court dated 21189, reference was made to a larger Bench for its opinion on the following point :

"Whether it is obligatory for the Court to give special reasons for granting maintenance/interim maintenance under Section 125 of the Code of Criminal Procedure 1973, from the date of the application ?"

Division Bench of this Court vide its order dated 2821990 has answered the reference in negative and has opined that it is not obligatory for the Court to give special reasons for granting maintenance/interim maintenance under section 125 of the Code from the date of the application, which is purely within its discretion. While dealing on this point it was further observed by the Division Bench that the question of giving special reasons for enforcement of said moral obligations during the pendency of a lis does not arise.

The learned counsel for the parties were heard.

In view of the opinion of the Division Bench referred to above the learned counsel for the petitioner did not press his earlier argument that it was obligatory for both the Courts below to give special reasons for granting maintenance/interim maintenance under Section 125 of the Code, from the date of the application.

The learned counsel for the petitioner, however, raised two other contentions. Firstly, according to him the quantum of interim maintenance granted to the respondentwife and their daughter to the tune of Rs. 250/ per month is excessive and that the Courts below have not taken into consideration the earning capacity of the petitioner. The argument is devoid of any merit. As per certificate of the SubDivisional Engineer, Public Health, produced in the Court, the petitionerhusband is posted as Pump Operator on daily wages. Even otherwise, the petitionerhusband is an able bodied person and the findings of both the Courts below in assessing the income of the petitionerhusband at the rate of Rs. 1,000/ cannot be said to be illegal or unjust. As such" the quantum of interim maintenance granted to the respondentwife at the rate of Rs. 150/ per month and to the daughter of the parties at the Rate of Rs. 100/ per month, under section 125 of the Code cannot be said to be excessive in these days of high prices. Thus the interim maintenance granted by the Courts below, cannot in any manner be termed as excessive.

The second contention raised by the learned counsel for the petitioner is that the, respondentwife has refused to live with the petitioner husband without any sufficient cause. This aspect of the case can be duly considered by the trial Court at the time when the petition under Section 125 of the Code is finally decided, and not at the stage of granting interim maintenance.

15 For the foregoing reasons. I do not find any merit in this petition and the same is hereby dismissed. The trial Court however, is directed to dispose of the main petition under section 125 of the Code, between the parties, expeditiously. Both the parties through their counsel are directed to appear before the trial Court on the date fixed, or, in case no such date is fixed before the trial Court both the parties shall appear before the trial Court on 39140. Copy of this order be sent to the trial Court for compliance.