Mohd. Ayub Khan vs State of U.P. and Another

Bhagwan Din, J.—List has been revised. None responds for the revisionist.

The facts giving rise to present revision briefly stated are that the opposite party No. 2, Smt. Jubaida Begum filed an application u/s 125, Code of Criminal Procedure against her husband, Mohd. Ayub Khan, the revisionist, for grant of maintenance allowance with the allegations that her husband and in-laws misbehaved and maltreated her, to press demand of Rs.50,000 as dowry. Ultimately, her husband turned her along with her son aged about one and half years, out of his house. She came to live with her parent, where her son died of meningitis. She has further alleged that from the date of her desertion by her husband, the latter has neither come to her father''s house to take her back, nor provided maintenance allowance to her. She has asserted that her husband has sufficient means but has neglected to maintain her, that she is unable to maintain herself.

The opposite party contested the application. He asserted in his written statement that the applicant left his house on his own accord and is willfully residing with her father, that she is a teacher in an English Junior School and also imparts tuition and earns Rs.1,500 per month, that despite of his best efforts, she did not come back to live with him.

Both the parties in support of their respective assertions adduced evidence. The learned Judge, Family Court after considering the evidence, arrived at the conclusion that the husband has sufficient means but has neglected to maintain his wife, that husband has utterly failed to prove that his wife is earning Rs.1,500 per month as salary from an English Junior School. He also observed that the wife was deserted by her husband and therefore, she is living with her father. She did not leave the house of her husband on her own accord and living with her father at her will.

The parties are Muslims. On the date, the trial court was hearing the arguments the husband moved an application that he had gone to call his wife back to his house, when she did not agree to come to his house, he divorced her and that she is no more his wife from 13.10.1997. The trial court has taken this fact in its consideration and, therefore, granted maintenance allowance to the wife against her husband from the date of application, i.e., 13.10.1997, the date she was divorced by her husband.

It is contended in para 7 of the memo of the revision that learned trial court has committed error in granting maintenance allowance from the date of presentation of the

application, whereas, ought to have granted maintenance allowance from the date of the order.

To appreciate the above contention, I perused Sub-section (2) of Section 125 of the Code of Criminal Procedure which provides that:

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

It is thus, abundantly dear that if Court orders the payment of the maintenance allowance from the date of institution of the application, the husband shall be liable to pay the maintenance allowance from that date. I do not find any illegality in the order of the trial court granting maintenance allowance from the date of the application till date of the order. Hence, the revision is without substance.

It is, accordingly, dismissed.