Raju vs State of U.P and others

Virendra Singh,J.

Revisionist Raju, preferred this revision against the Judgement and order dated 11.4.2001 passed by Judge, Family Court, Agra, in case No.396 of 1996 through which learned Judge has allowed the application of the respondent No.2 under section 125 Cr.P.C and has directed the revisionist to pay Rs. 500/ per month to the opposite party No.2 as maintenance allowance from 17.9.199, the date of application filed by respondent No.2 before the Family Court, Agra.

At the time of hearing of this revision, no one appeared on behalf of revisionist while leaned counsel for respondent No.2 and leaned A.G.A on behalf of respondent the State of U.P. remained present, who have been heard on this revision as per grounds mentioned in the memo of this revision.

As per grounds mentioned in the memo of this revision, the impugned order is said to have been passed by the court below awarding Rs. 500/ per month from the date of application, is against the law as well as on the facts of the case because Smt. Dimpal, opposite party No.2, refused to live with the revisionist without any sufficient reason and the financial conditions of the revisionist is very poor, while the respondent No.2, Smt. Dimpal knows the art of painting, sewing and weaving etc by which she earns Rs.1500/ per month. The court below even did not consider the proviso under section 125 Cr.P.C in which it is provided that wife is not entitled for any maintenance in case she refuses to live with her husband. It is further stated that the court below has illegally awarded the maintenance from the date of application with no reasons for awarding it from the date of application which is now mandatory under the law.

The learned counsel for the respondent No.2 as well learned A.G.A on behalf of State of U.P. submitted that there is no illegality in the impugned order either on the facts of this case or in the eyes of law as the lower court has rightly found the revisionist under obligation to maintain his wife and awarded maintenance allowance at a rate of Rs.500/ per month to respondent No.2, which is neither excessive nor there is any illegality in awarding of maintenance from the date of application.

In the light of contentions raised on behalf of respondents in reference to the grounds mentioned in the memo of this revision, I have gone through the entire facts and circumstances on record. The law is very much well known as is held in various cases by the Hon''ble Supreme Court as well as by High Courts in this country, which is summarized as below.

''''The revisionary court is empowered to exercise all the powers conferred on the Appellate Court by virtue of the provisions contained in section 401 Cr.P.C. Section 397 Cr.P.C. confers power on the High Court or Sessions Court as the case may be, for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed and as to the irregularity of any proceeding of such inferior court. It is for the above purpose, if necessary, the High Court or Sessions court can exercise of appellate powers. Section 401 Cr.P.C. conferring power of Appellate court on the Revision court is with the above limited purpose. Section 395 to 401 Cr.P.C. read together do not indicate that the revisionary power of the High Court can be exercised as the consequent of appellate power. The revision powers though very wide are purely discretionary, to be fairly exercised according to the exigencies of each case. It is very well settled that it is normally to be exercised only in unexceptional case if there is glaring defect in the procedure or there is manifest error on any point of law and consequently there has been a flagrant miscarriage of justice. These powers are extraordinary powers which must be exercised with due regard to the circumstances of each particular case. High Court will not interfere on a technical ground, but may only interfere when substantial question arises or when a material error effects the decision. It may interfere when a jurisdiction vested has been exercised in an improper manner or improper ground. Even if the order is wrong or illegal, the High Court will not always interfere when substantial justice has been done or no prejudice has resulted to the accused. The error of law must lead to a failure of justice. In Revisionary matter the High Court does not take a technical view and interfere in every case when an order has been made irregular or improper. The fact that the High Court as an court of appeal might have taken different view is no ground for interference. The revisionary jurisdiction will not be exercised in such a way as a given right of appeal in cases excluded by the Criminal Procedure Code."

In the light of law as is stated above and after perusal of the records of this case, I am of this view that there is no illegality in the order for awarding a sum of Rs.500/ per month only as maintenance allowance to the respondent No.2 because it is well established on record that the relations in between the parties remained very much tense as respondent No.2 lodged a report too against the revisionist at police station New, Agra. It gives reasonable ground to live separately to respondent No.2 from the revisionist.

So far as the question of income of revisionist is concerned, no doubt the respondent No.2 could not prove the income of the revisionist to the tune of Rs. 5000/ as salary from Bharat Diesel Engine Factory but however guesswork for income of Rs. 4050 per day as labourer of the revisionist, can not be said perverse or beyond imagination. There is no proof on record for the fact that the respondent no.2 is able to maintain herself as there is no evidence of her income on record. In the light of entire scenario of the evidence on record, a payment of Rs. 500/ per month to the wife by a husband is not excessive.

So far as the question of awarding the maintenance allowance from the date of application is concerned, no doubt the reasons in this regard have not been given by the lower court in the impugned order. Not even a single word is stated as to why the maintenance amount is to be paid by the revisionist to the respondent No.2 from the date of her application. Section 125 Cr.P.C in this regard is very much relevant which provides that if any person having sufficient means neglects or refuses to maintain his wife, unable to maintain herself, a Magistrate may order such person to make a monthly allowance for the maintenance of his wife at such monthly rate, as such Magistrate thinks fit. Sub clause 2 of section 125 Cr.P.C provides that any such allowance for the maintenance shall be payable from the date of such order, or if, so ordered, from the date of application for maintenance, as the case may be. Since Sub Clause 2 very well provides that such maintenance shall be allowed from the date of order but if that amount has to be paid from the date of application, the Magistrate has to order in this regard, therefore, it means that the reasons in this regard have to be given by the Magistrate. This court is required to record the reasons when it awards the maintenance from the date of application. The impugned order is silent in this regard as to why the impugned order shall be effective from the date of application moved by respondent no. 2 before the Magistrate.

Since there is no reasons recorded by the Magistrate as to under what circumstances the maintenance allowance is being ordered to be paid from the date of application of respondent No.2, therefore I do find the impugned order erroneous up to the extent of it''s enforcement and it should be deemed to have been allowed from the date of order. Therefore, this revision deserves to be allowed partly and is hereby allowed accordingly thereby finding that the impugned order shall be deemed enforceable from the date of its order.