Sandhya @ Diya vs Neeraj And Others

01- The present revision has been filed against order dated 24/12/2018 passed by learned VIII Additional Sessions Judge, Indore in Criminal Appeal

No.134/2018.

02- The facts of the case reveal that a marriage took place between the present applicant Smt. Sandhya and respondent No.1 Shri Neeraj Demla on

30/11/2012 and a female child was born out of the wedlock. The present applicant has filed a case under the Protection of Women from Domestic

Violence Act, 2005 and also preferred an application under Section 23 claiming maintenance.

03- The application filed by the applicant was partially allowed by Judicial Magistrate First Class, Indore vide order dated 27/03/2018 and the

respondent No.1 was directed to pay Rs.3,000/- per month to the present applicant and Rs.2,000/- per month to his daughter.

04- Against the order dated 27/03/2018, an appeal was preferred by both the parties and the maintenance has been enhanced to Rs.7,000/- per month

in respect of the present applicant. The applicant wants Rs.25,000/- per month instead of Rs.7,000/- per month.

05- This Court has carefully gone through the order passed by the trial Court as well as by the learned First Appellate Court. The order has been

passed keeping in view the income of the husband and the fact that wife is having minor daughter, who is five years old and is a school going girl. The

documents on record reveals that the husband is a Income Tax Payee and his Income Tax Returns for the Financial Year 2014-15, 2015-16 and 2016-

17 are on record. In the year 2016-17 his taxable income is Rs.3 Lakhs. He is running a shop in the name and style of “Dhanshri Footwear†and

his parents are also having a house.

06- In the considered opinion of this Court, keeping in view the income tax which the husband is paying, the business which he is doing, the learned

Additional Sessions Judge was justified in passing the impugned order enhancing the maintenance.

07- Not only this, the wife is entitled for maintenance from the date she has submitted an application for grant of maintenance. The Delhi High Court

in the case of Vikas Bhutani Vs. State and Anr. (Cril. Rev. P. No.579/2017, decided on 17/05/2019) in paragraphs No.9 to 17 has held as under:-

“9. The object of grant of maintenance is to afford a subsistence allowance to the wife, who is not able to maintain herself, then the award

normally should be from the date of the application. For the court to award maintenance from the date of the order there have to be compelling

circumstances for the court to take such a view. Maintenance awarded to a wife is not a bounty. It is awarded to her so that she can survive. The

fact that time is spent between the date of the application and a final adjudication and an award in favour of the wife, does not mean that she had

enough funds to maintain herself. When the trial court comes to conclusion after trial that the wife is entitled to an amount of maintenance the

assessment in fact relates back to the date of the application. When the assessment relates back to the date of the application then there have to be

compelling circumstances for the trial court to restrict the award of maintenance to a period post the date of the order.

This court in Rekha Sabharwal & Anr. Vs Jitender Sabharwal 2018 SCC OnLine Del 12448; Crl.M.C.3647 of 2014 has been held that the

maintenance is to relate back to the date of the application and not from the date of the order.

A coordinate bench of this court in Bimla Devi Vs Shamsher Singh (2015) 224 DLT (CN8) 8 held that “Maintenance is a right which accrues

to a wife against her husband since the inception of her getting married with him. A moral and legal obligation and duty is cast upon the husband to

maintain his wife. The necessary corollary is that from the time the wife starts residing separately from her husband, she can claim maintenance from

himâ€​.

The Supreme Court of India in Shail Kumari Devi v. Krishan Bhagwan Pathak (2008) 9 SCC 63 2held that “the High Court was 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.

Further, in Jaiminiben Hirenbhai Vyas& Anr vs Hirenbhai Ramesh Chandra Vyas &Anr. (2015) 2 SCC 385 the Supreme Court held that

“Section 125 of the Cr.P.C., therefore, impliedly requires the Court to consider making the order for maintenance effective from either of the two

dates, having regard to the relevant facts. For good reason, evident from its order, the Court may choose either date. It is neither appropriate nor

desirable that a Court simply states that maintenance should be paid from either the date of the order or the date of the application in matters of

maintenance. Thus, as per Section 354 (6) of the Cr.P.C., the Court should record reasons in support of the order passed by it, in both eventualities.

The purpose of the provision is to prevent vagrancy and destitution in society and the Court must apply its mind to the options having regard to the

facts of the particular caseâ€​.

Clearly, the maintenance is to be from the date of the application. Further, as noticed above there is no challenge to the quantum of maintenance

assessed by the trial court.

Accordingly, petitioner shall pay maintenance at the rate of Rs. 40,000/- per month from the date of filing of the application i.e. March, 2014.

Petitioner would be entitled to an adjustment of the amount that petitioner has already paid in terms of the order passed in the application under

Section 125 Cr.P.C. and the interim orders passed by this court.

In view of the above, I find no merit in the petition. The petition is accordingly dismissed. Interim order dated 08.08.2017 is vacated.

After the petition was dismissed, learned counsel for the petitioner prayed for some time to take instructions â€" as to in how much time petitioner

would be in a position to clear the arrears.â€​

In light of the aforesaid judgment delivered by the Delhi High Court, the amount of maintenance has to be paid from the date of application and not

from the date of order and therefore, the revision is allowed. The wife and minor daughter shall be entitled maintenance from the date the application

for grant of maintenance was submitted by them and the quantum of maintenance fixed by the learned Additional Sessions Judge is upheld. With the

aforesaid, revision stands allowed.

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