Mashook Ali vs State of U.P.& Anr.

Krishna Kumar, J.—This revision has been filet against the judgment and order dated 2431999 passed by the Family Judge, Agra allowing maintenance to petitioner wife and to the minor child.

Heard learned Counsel for the parties.

There is allegation that petitioner (wife) was divorced. This fact was upheld by the learned lower Court. However, learned lower Court has upheld that petitioner (wife) is entitled for maintenance from the date of filing of the petition i.e.,22111994 to 10111995.

Learned Counsel for the revisionist contended that a notice was given to the petitioner (wife) on 7121994 informing the petitioner that she has been divorced. In the said notice, it was mentioned that divorce was given about four or five years ago. No date was mentioned and it was also not mentioned as to where the divorce was given. Therefore, because of said notice it cannot be said that petitioner was divorced. If the revisionist could have given divorce through the said notice dated 7121994, the position could be otherwise, but when it was mentioned that it was given about four or five years ago, it cannot be held any divorce was actually given.

Learned lower Court has held that the date of divorce has come to the knowledge of the petitioner when the written statement was filed and this written statement was filed on 3171995. The learned lower Court placing reliance upon the case law, held that date of divorce shall be held when written statement is submitted before the Court. As earlier stated, when the date of divorce was not certain, the said case law was rightly taken into consideration by the learned lower Court.

Learned Counsel for the revisionist further contended that no reason has been given as to why the maintenance should be payable to the child from the date of application. Learned lower Court has only upheld that child was entitled to maintenance from revisionist. However, it has not been mentioned that there was any default on the part of the revisionist in disposal of the case and, therefore, the learned lower Court could not allow maintenance to the child from the date of filing of the petition rather maintenance could be allowed to the child only from the date of the order.

Learned Counsel for the opposite party contended that in view of Section 125 (2), Cr. P.C. the maintenance is payable from the date of filing of the application. However, from perusal of the said provision it is clear that ordinarily if no reason is given, the maintenance shall be payable from the date of order and if the maintenance is to be allowed from the date of application, reasons are necessary to be noted.

In view of the aforesaid reasons, this revision is dismissed on merits. However, the operative portion of the impugned judgment is modified only to the extent that maintenance allowance shall be payable to the child from the date of order, i.e., 2431999 and not from the date of filing of the petition 2211 1994.

Revision dismissed.