Md. Alamgir Ansari vs Vishal Kumar And Ors

The petitioner has challenged the order dated 14.09.2015 passed in Maintenance Case No. 61 of 2009 by which he has been directed to pay Rs.

4,000/- per month to O.P. No. 2 in addition to Rs. 1,00,000/- in lump-sum to be paid in 20 equal instalments to her and Rs. 1,50,000/- in lump-sum to

her son.

Marriage between the parties is not denied. From the wedlock a son Md. Parwej Ansari was born. He was aged about 12 years at the time of filing

of the application under section 125 Cr.P.C which has been registered as Criminal Misc. Case No. 59 of 2007. The petitioner has pleaded that on

19.04.1996 he gave talak to his wife-O.P. No. 2, whereas his wife has asserted that 3-4 years after the marriage he started harassing her for Rs.

50,000/- and finally in the year, 2002 she was thrown out of her matrimonial home. She has filed a criminal case under section 498A IPC vide

Mahagama P.S. Case No. 59 of 2003 in which by the time the order dated 14.09.2015 granting maintenance to her was passed a charge-sheet was

filed. It is stated at Bar that now the petitioner stands convicted under section 498A IPC.

In the proceeding of Maintenance Case No. 61 of 2009, the wife of the petitioner has examined four witnesses but the petitioner has failed to lead

any evidence. The petitioner has examined herself as P.W.1, her uncle as P.W.2, her father as P.W. 3 and her maternal uncle as P.W. 4. The

witnesses have spoken about harassment of his wife at the hands of the petitioner, demand of Rs. 50,000/- by him, a son born from the wedlock and

criminal case against the petitioner. But, on income of the petitioner the witnesses are not consistent. Wife of the petitioner has claimed that her

husband is a teacher in a Madarsa at Sikandrabad, he is working as Hafij and owns a tailoring shop. She has claimed that the petitioner has monthly

income of Rs. 25,000/-. P.W. 2 and P.W.3 have, however, stated that monthly income of the petitioner is Rs. 45,000/-.

The petitioner has taken a stand that he is working as labour in Mosque and earning Rs. 1,500/- per month. After divorcing O.P. No. 2, he has

contracted a second marriage and he has three sons from his second marriage.

On the basis of the aforesaid evidences laid before him, the Principal Judge, Family Court, Godda has held as under:

“13. Heard, learned counsel for the petitioner. No one appeared on behalf of the O.P. to argue the case. Perused the record and I find

that petitioner in the petition dt. 30.05.2007 and the O.P. in his show-cause dt. 17.10.12 admitted the marriage between them and also birth

of the petitioner no. 2 from their bedlock. The evidence adduced on behalf of the petitioner, I find that they have supported the marriage

between the petitioner no. 1 and O.P and from their bedlock petitioner no. 2 took birth. Income of the O.P has also been admitted by the

witnesses. P.W.1 who is the mother of the petitioner no. 2 in her cross-examination vide para-4 admitted that on 23.11.12 petitioner no. 2

was aged about 16 years which shows that on 23.11.14 petitioner no. 2 became 18 years old. Though as per ext.1 became 18 years on

05.11.12. Therefore, considering the facts and law discussed above O.P. Md. Alamgir Ansari, S/o- Ishaque Ansari, R/o Mouza-Khuthari, PS

Mahagama Subdivision, District-Godda is hereby directed to Rs. 4000/- (four thousand) per month from this month to the petitioner no. 1

Bibi Rahima Khatoon and same shall be paid by 5th of the subsequent month. O.P is also directed to pay a lump-sum amount of Rs. 1 lakh to

the petitioner no. 1 Bibi Rahima Khatoon, W/o- Md. Alamgir Ansari and same shall be paid in 20 equal installment by the 5th of the

subsequent month. So far as concern payment of the maintenance of the petitioner no. 2 Parwej Ansari. O.P. Md. Alamgir Asnari, S/o-

Ishaque Ansari, R/o- Mouza-Khuthari, PS Mahagama subdivision, Distt.-Godda is hereby directed to pay lump-sum amount of Rs.

1,50,000/- (one lakh fifity thousand) from the date of filing of the above case till date of attaining age of majority to the petitioner no. 2

Parwej Ansari, S/o- Md. Alamgir Ansari in three equal installment and accordingly the maintenance petition filed on behalf of the petitioner

is hereby allowed.â€​

The petitioner has challenged grant of Rs. 1,50,000/- in lump-sum to son of the petitioner and Rs. 1,00,000/- to O.P. No. 2, besides maintenance of

Rs. 4,000/- per month to O.P. No. 2.

Mr. Anup Kumar, the learned counsel for O.P. No. 2 and O.P. 3 has referred to the judgments in “Shail Kumari Devi Vs. Krishan Bhagwan

Pathak†reported in (2008) 9 SCC 632, “Shabana Bano Vs. Imran Khan†reported in (2010) 1 SCC 66,6 “Jaiminiben Hirenbhai Vyas Vs.

Hirenbhai Ramesh Chandra Vyan†reported in (2015) 2 SCC 385 and “Bhuwan Mohan Singh Vs. Meena†reported in (2015) 6 SCC 353 to

contend that grant of maintenance under section 125 Cr.P.C to O.P. No. 2 and O.P. No. 3 from the date of application is justified. He has further

contended that amount of maintenance can be granted in lump-sum also.

Sub-section-2 to Section 125 of the Code of Criminal Procedure reads as under:

“(2) Any such allowance for the maintenance or interim maintenance and expenses for proceeding shall be payable from the date of

order, or, is so ordered, from the date of the application for maintenance or interim maintenance and expenses of proceeding, as the case

may be.â€​

A glance at sub-section-2 discloses the legislative intendment that an order for maintenance or interim maintenance can be made from the date of

the order, or from the date of the application for maintenance or interim maintenance. The sentence, “the date of the order, or, if so ordered, from

the date of application for maintenance……â€, is very significant. In this sentence one finds that the expression “if so ordered†appears between

“from the date of order, or, from the date of applicationâ€. The issue whether maintenance can be granted from the date of the order or from the

date of application came before the Supreme Court in “Shail Kumari Devi Vs. Krishan Bhagwan Pathak†reported in (2008) 9 SCC 632. By that

time, there was no decision by the Supreme Court on the issue. Referring to the judgments of various High Courts, the Hon’ble Supreme Court

has held thus;

“40. 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 intends 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

unable (sic enable) the wife 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 under Section 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.â€​

From the aforesaid judgment the position in law on the subject is very clear. For an order granting maintenance from the date of the application the

court is required to record reasons.

The decision in “Bhuwan Mohan Singh Vs. Meena†reported in (2015) 6 SCC 35,3 on which the learned counsel for O.P. No.2 and O.P.No.

3 has placed reliance, has been rendered in the peculiar facts and circumstances of the case. In paragraph no. 16 of the reported judgment the Court

has found that the husband had taken adjournments and sometimes the court dealt with the matter showing total laxity. No such plea has been urged in

the present case nor has any material been brought on record to show several adjournments at the instance of the petitioner. In “Jaiminiben

Hirenbhai Vyas Vs. Hirenbhai Ramesh Chandra Vyan†reported in (2015) 2 SCC 385, in paragraph no. 3 of the judgment the Supreme Court has

observed that the High Court has not given any reason why it has not directed maintenance from the date of the application for maintenance and

therefore it is difficult to uphold the direction that the maintenance should be paid only from the date of the order.

In the order dated 14.09.2015 not only there is no whisper about assessment of monthly income of the petitioner, no reason has been recorded by

the learned Principal Judge, Family Court, Godda why an amount of Rs. 1,50,000/- is given to the son of the petitioner and Rs. 1,00,000/- to O.P. No.

The learned counsel for O.P. No. 2 and O.P. No. 3 has contended that the aforesaid amounts are in lieu of monthly maintenance from the date of

application. Assuming it is so, no reason has been recorded by the learned Judge why maintenance should be granted to O.P. No. 2 and O.P. 3 from

the date of application. In her application, O.P. No. 2 has not claimed maintenance from the date of application and the order dated 14.09.2015 also

does not disclose that any argument was advanced by the learned counsel for O.P.No. 2 and O.P. No. 3, who are the applicants in Maintenance Case

No. 61 of 2009, for grant of maintenance from the date of application.

By now it is well-settled that the amount of maintenance should be commensurate with the status, needs and living standards of the parties [refer:

Kalyan Dey Chowdhury Vs. Rita Dey Chowdhury Nee Nandy†reported in (2017) 14 SCC 200. ]No document in support of the plea that the

petitioner is working as a teacher in Madarsa has been produced. He has asserted that he is a labour working in the mosque and he has three sons

from second marriage.

In the aforesaid facts, I am of the opinion that the order dated 14.09.2015 granting an amount of Rs. 1,50,000/- to O.P. No. 3 and Rs. 1,00,000/- to

O.P. No. 2 warrants interference and, accordingly, this part of the order is set-aside.

On quantum of monthly maintenance for O.P. No. 2, keeping in view the stand taken by the petitioner that he has remarried and from the wedlock

three sons have been born, the amount of Rs. 4,000/- per month as maintenance is set-aside and the petitioner is directed to pay Rs. 2,000/- per month

to O.P. No. 2 from the date of the order.

With the aforesaid modification, Criminal Revision No. 1353 of 2015 is partly allowed.