Muneer Ahmad vs State of U.P.and Another

Barkat Ali Zaidi, J.—In a case (220 of 2002) under Section 125 Criminal Procedure Code the Magistrate (Addl. Civil JudgeIII), Pratapgarh granted maintenance from the date of application.

The husband has now come to this Court under Section 482 Cr.P.C. seeking to set aside the order of Sessions Judge (Fast Track CourtII), Pratapgarh for payment of maintenance from the date of application which is 4.6.1998.

I have heard Sri Pradeep Chandola, learned counsel for the husband Applicant and Sri Abid Ali, Advocate for the wife Respondent.

The only question argued at the bar is whether payment is to be made from the date of order, or from the date of application. That is the only controversy between the parties here.

The Law is that normally the order for maintenance, is to be made, from the date of the order but payment can be ordered from the date of application for specific reasons. The Sessions Judge has noted in his order that case remained pending for about 6 years and the delay in disposal of case was caused because of dilatory attitude of the husband and since he is responsible for the delay, the wife should not be allowed to suffer, and the payment should be made from the date of application.

A perusal of the record reveals that about a hundred dates were fixed in the case. Initially the husband could not be served and an exparte order was passed. Subsequently, order was set aside on the application of the husband Even thereafter, 69 dates were fixed in the case before the judgment could be delivered by the Magistrate. On a majority of these dates, the adjournment was caused because of the husbandapplicant. This fact was emphasized in the counter affidavit by the wiferespondent, but no rejoinder affidavit rebutting the same was filed by the husbandpetitioner. It is, therefore, clear that delay in disposal was primarily caused by the husbandpetitioner.

It does not, however, seem appropriate in the circumstances to order payment of maintenance from the date of application and that would be, very burdensome. We may take the middle course, and order maintenance from the date of setting aside of exparte order.

The husbandapplicant will, therefore, be liable for payment of maintenance from the date of setting aside the xparte order which is 7.4.2004.

Petition partly allowed.

(Partly allowed)