Narendra Singh Sengar vs Maltidevi and others

Rampal Singh, J.

The applicant has filed this petition under the provisions of section 482, Criminal Procedure Code, invoking inherent powers of this Court for quashing the order of Fifth Additional Sessions Judge, Gwalior, dated 11-2-1986 and that of Judicial Magistrate, First Class, Gwalior, Smt. Aradhana Choubey, dated 20-8-1985.

The applicant is the husband of non-applicant No. 1; non-applicant No. 2 is his daughter and non-applicants Nos. 3 and 4 are his sons. The applicant abandoned and neglected to maintain his wife and children. Hence they filed an application praying for maintenance u/s 125 of the Code of Criminal Procedure in the Court of Judicial Magistrate, First Class, Gwalior, and the Magistrate on 20-8-1985 directed total maintenance of Rs. 400/- per month to the non-applicants. In that order at para 22, she directed that looking to the facts and circumstances of the case, the amount to be paid is from the date Of the application, i.e., 27-7-1983. Aggrieved by the judgment of the Judicial Magistrate, First Class, Gwalior, the applicant preferred revision petition in the Court of Fifth Additional Sessions Judge, Gwalior. The learned Sessions Judge on 11-2-1986 dismissed the revision petition. Now, the applicant by filing this petition wants to invoke the inherent powers of this Court for interfering with the judgment of both the Courts below.

In a petition u/s 482, Criminal Procedure Code concurrent finding of facts cannot be disturbed. Admittedly, the powers u/s 482 Criminal Procedure Code are extra-ordinary and have to be exercised sparingly. Keeping in view this settled principle of law, I proceed to consider the sole contention of Shri B. R. Sharma, learned counsel for the applicant, made at the bar. He contended that the Judicial Magistrate awarded maintenance from the date of the application and not from the date of the order. Thus she has committed an error in law and, hence, the judgment needs treatment at the hands of this Court. No doubt,, the maintenance has been awarded from 27-7-1983, i.e., the date on which the application for maintenance was filed. There can be no dispute on the point that, ordinarily, payment of maintenance u/s 125, Criminal Procedure Code, has to be ordered from the date of the order, but if the Court decides to award the maintenance from the date of the application, then the reasons have to be given in the judgment. On perusal of para 22 of the judgment of the Judicial Magistrate, the short reason given by her is that looking to the facts and circumstances of the case, maintenance is payable from the date of the application, i.e., 27-7-1983. Let us now examine whether this part of the order contained in para 22 of the judgment is correct in accordance with law or not. For convenience, sub-section (2) of section 125, Criminal Procedure Code, is being reproduced here:-

(1) .......

(2) Such allowance shall be payable from the date of the order or if so ordered from the date of the application for maintenance.

(Emphasis supplies)

From the words in italics it is apparent that the Court, if chooses to award maintenance from the date of the application and chooses to depart from the first part of sub-section (2), is required to give some reason in some form. The reason given in para 22 of the judgment is "in the facts and circumstances of the case." The facts and circumstances of the case, pleadings of the parties and the evidence were before the Magistrate. She was conscious of the fact that the applicant is alleged to have not only abandoned his wife but also the teen-aged children as well as the small child. That is to say he refused to maintain the entire family, which was dependent upon his earnings. It appears that the trial Magistrate had the principle of law in her mind while awarding maintenance from the date of the application. She understood that ordinarily, the payment should be ordered from the date of passing of the order and not from the date of the application. But, if the circumstances are such, then the law does not place any restriction upon exercise of her discretion, if reasons are given by the Magistrate. Shri B. R. Sharma contends that the reason "in the facts and circumstances of the case" given by the Magistrate is not a sufficient reason, but to me it appears that though the reasons were not written in so many words, reasons were present in the mind of the Magistrate while passing the order of maintenance. Furthermore, this point was not raised by the applicant before the Court of Sessions.

There is no substance in this application. Consequently, it is dismissed. The record of the trial Court be immediately sent.