Kurna Suresh Babu vs The State of A.P. and Another

G. Yethirajulu, J.—This revision case has been filed by the respondent in M.C. No. 21 of 2006 on the file of the Judicial Magistrate of First Class, Godavarikhani.

The respondent No. 2 herein filed the said M.C. u/s 125 of the Code of Criminal Procedure to award maintenance of Rs. 3,000/- per month against the revision petitioner. The revision petitioner opposed the application, but the said Court, after considering the evidence adduced by both parties, awarded maintenance of Rs. 1,500/- per month directing the revision petitioner to pay the maintenance from the date of the filing of the petition.

Being aggrieved by the order of the learned Magistrate directing him to pay the maintenance from the date of the petition, the present revision case has been filed by the revision petitioner.

The revision petitioner contended that as per Section 125 Cr.P.C., the maintenance has to be paid from the date of the order and only after recording several reasons, the Magistrate can grant maintenance from the date of petition. In the instant case, the learned Magistrate failed to assign any reason for awarding maintenance from the date of the petition, though the law in this regard is well settled. The learned Magistrate failed to follow the law, therefore, the order of the learned Magistrate granting maintenance from the date of the petition is liable to be set aside.

The counsel for the second respondent herein contended in the maintenance case that after the marriage, the revision petitioner and herself lived happily for a period of two months only, thereafter the revision petitioner and his family members suspected the chastity of the second respondent and used to harass her mentally and physically. The revision petitioner filed a divorce petition with false allegations and as she is unable to maintain herself, she filed the petition for maintenance. She pleaded that the revision petitioner is earning Rs. 8,000/- per month by working as a Field Man in Fisheries Department and he is also having permanent assets and getting income of Rs. 1,00,000/- per annum. The revision petitioner resisted the application stating that the second respondent herself is disinterested to co-habituate with him and left the society of the revision petitioner on her own will and so under unavoidable circumstances, the revision petitioner was compelled to file divorce petition, that he is drawing a salary of Rs. 4,000/- per month and he has to maintain his mother and unmarried sister, that the parents of the second respondent are having sufficient properties and she being only daughter, she does not need any maintenance, therefore the petition is liable to be dismissed.

During the course of evidence it came to light that the revision petitioner was getting Rs. 6,589/- towards his gross salary. On the basis of the income of the revision petitioner irrespective of his other assets, the lower Court granted maintenance of Rs. 1,500/- per month.

The learned Counsel for the revision petitioner relied on the judgments of this Court regarding the date from which the maintenance has to be granted, whether it is from the date of the petition or from the date of the order.

In Dasyam Elizabath Rani and Others Vs. Dasyam Pradeep Kumar and Others, the learned single Judge of this Court observed as follows:

A plain reading of Sub-section (2) of Section 125 of the Code shows that the allowance shall be payable from the date of Order or if it so ordered, from the date of application. There is nothing in the said sub-section, to show that the allowance shall be normally payable from the date of Order. When Sub-section (2) of Section 125 of the Code gives an option to the Court to grant maintenance either from the date of Order or from the date of application, it is indicia that the discretion is vested with the Court. Once the Court is given the discretion, it is for the Court to exercise its discretion in a judicious manner, but, not arbitrarily. Therefore, the Court is obliged to give reasons for exercising its discretion in either way. When that be the plain meaning of Sub-section (2) of Section 125 of the Code, it is difficult to import the words, which have not been there in the said sub-section, so as to say that ordinarily the maintenance shall be granted either from the date of Order or from the date of application. Such construction of Sub-section (2) of Section 125 of the Code negates the intention of the Parliament in giving discretion to the Court. That apart, once the discretion is vested with the Court, that cannot be taken away by inflexible rule that it shall be exercised in a particular manner. Having due regard to the object in incorporating the provision enabling the destitute to claim maintenance in the Court, having due regard to the aspect that this provision is in addition to the regular right to claim maintenance by the distitutes from the persons responsible for paying the maintenance allowance under the personal laws of the parties, and having due regard to the other aspect that it is the discretion of the Court either to grant maintenance from the date of Order or from the date of the application, by no stretch of the imagination it can be said that it is an ordinary rule to direct the maintenance allowance to be paid either from the date of Order or from the date of application.

It shall be the endeavour of the Court to take every relevant fact into consideration for passing the necessary Order although it is discretionary directing the maintenance to be paid from the date of Order or from the date of petition. But that discretion shall be exercised always and in all circumstances by the Court on sound lines in a judicious manner; having due regard to the backdrop of the case, the length of time occupied by the proceedings; the interim maintenance granted, if any, earlier during the pendency of the proceedings; the capacity of the parties; the requirement of the claimants; and the basic principle of preventing vagrancy.

It becomes necessary in every case to formulate a point for adjudication apart from the other relevant points germane for consideration, as to whether the claimants are entitled to maintenance from the date of the petition or from the date of the order. Without formulating such a point, the question of adducing evidence relevant for the said purpose would not arise, not to speak of consideration thereof at the end by the Court.

In Chikkamma @ Parvathamma and Another Vs. Yerriswamy and Another, a learned single Judge of this Court while interpreting Section 125 of Cr.P.C. held as follows:

It is clear from the Sub-section (2) of Section 125 of the Code that the order for payment of maintenance should be effective from the date of order and the exception is ordering payment from the date of petition. Since awarding maintenance from the date of petition seems to be an exception to the normal rule recording reasons would be necessary only when Magistrate feels it expedient to order payment of maintenance from the date of petition. That should be so can also be seen from the fact that petitioners in an petition u/s 125 Cr.P.C. have a right to seek interim maintenance during the pendency of the proceedings initiated by them. When they failed to file a petition seeking interim maintenance, they cannot blame the Court for not awarding maintenance from the date of petition.

In the facts and circumstances, the Magistrate, in exercise of the discretion vested in him, awarded maintenance only from the date of order, but not from the date of petition. As stated earlier the recording of reasons for awarding maintenance from the date of order is not mandatory and it is only in case where the Magistrate thinks it fit to award maintenance from the date of petition, he has to record reasons as held in Tulasi alias Thulja Bai case 1996 Crl.LJ 1160.

From the above decisions it is very clear that whenever the learned Magistrate grants maintenance from the date of the order, the recording of reasons is not mandatory, but when the Magistrate awards maintenance from the date of the petition, he has to record reasons. The learned Judges after referring to judgments of various High Courts gave the above findings.

In the present case the learned Magistrate passed the order and the operative portion of the order reads as follows:

For the foregoing reasons and discussion this Court is of the considered view that the petitioner is entitled to claim maintenance from the respondent.

In the result, the petition is partly allowed and the petitioner is awarded a monthly allowance of Rs. 1,500/- payable by the respondent towards her maintenance from the date of the petition i.e., from 12-4-2006, the respondent shall also pay a sum of Rs. 500/- to the petitioner towards costs of the petition.

From the above order it is clear that no reasons have been assigned by the learned Magistrate as to why the maintenance was granted from the date of the petition contrary to the mandate of Section 125(2) of Cr.P.C.

Section 125 Cr.P.C. reads as follows:

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

From the above provision it is clear that ordering maintenance from the date of the order is general rule and ordering payment from the date of the petition is an exception. Since the present case comes under the exception to the normal rule, the reasons are bound to be recorded by the learned Magistrate. u/s 125 Cr.P.C. the dependents have a right to seek interim maintenance during the pendency of the maintenance case. When the dependants failed to file a petition, they cannot blame the Court for not awarding maintenance from the date of the petition.

After going through the entire material I am of the view that the order of the Magistrate is liable to be modified regarding the date from which the maintenance is payable to the second respondent.

In the result, the Criminal Revision Case is allowed in part. The order of the learned Magistrate directing payment of the maintenance of Rs. 1,500/- from the date of the petition is modified directing the revision petitioner to pay the maintenance from the date of the order.