Maintenance from Date of application or Date of Order

Allahabad High Court

Mohd. Ismail
vs
Smt. Bilquees Bano

on 8 April, 1997
Equivalent citations: 1998 CriLJ 2803
Author: P Jain
Bench: P Jain
ORDER P.K. Jain, J.

1. Heard Sri Satish Trivedi, learned counsel for the revisionist. None appears for opposite party Smt. Bilquees Bano.

2. This revision is directed against the judgment and order dated 21-2-1984 passed by Sri U.C. Dhyani, IInd Addl. Munsif Magistrate (First Class), Bareilly allowing maintenance allowance to the opposite party Smt. Bilquees Bano at the rate of Rs. 150/- per month and at the rate of Rs. 100/- per month to her son Mohd. Shaheb Alain from May, 1982.

3. The sole question raised in this revision is whether in view of the admitted facts between the parties Smt. Bilquees Bano was entitled or not to the maintenance allowance. It may be made clear at the very out set that so far as Mohd. Shaheb Alam is concerned, admittedly he was born out of the wedlock between the revisionist and opposite party Smt. Bilquees Bano. At the time of moving of the application under Section 125, Cr.P.C. he was around 6 months old. He has not been made parly to the present revision nor there is any justification for setting aside the order of maintenance so far as it relates to Mohd. Shaheb Alam.

4. So far as Smt. Bilquees Bano is concerned, findings of fact of the court below are that Smt. Bilquees Bano was married to the revisionist one year after divorce between Smt. Bilquees Bano and her first husband Chhotey, that at the time of marriage of Smt. Bilquees Bano with the revisionist she knew that Mohd. Ismail was having another wife, marriage with whom was in subsistence and that Mohd. Ismail was having sufficient means to maintain the wives including opposite party Smt. Bilquees Bano. The Court below has also obseved in its judgment that Mohd. Ismail admitted in his statement dated 27-6-1983 that he had not paid maintenance allowance to Smt. Bilquees Bano since May, June, 1982. It also appears from the admission made by the revisionist that the revisionist was paying maintenance allowance to Smt. Bilquees Bano prior to May, June 1982 although she was living separately. The main plea of the revisionist was that he was ready and willing to maintain her if she lived with the revisionist. The Court below has, however, held that in the circumstances of the case the wife had sufficient cause not to live with the husband and to claim maintenance allowance.

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5. It is contended by the learned counsel that it is the finding of the Court below that prior to her marriage with the revisionist Smt. Bilquees Bano was having illicit relation with the revisionist and at the time of the marriage she knew very well that the revisionist was having another wife and she must have known that she will have to adjust with the first wife. The Court below observed in its judgment that Smt. Bilquees Bano sometime after the marriage left matrimonial home as she was not able to adjust with the first wife. It is contended that in view of the findings and observations of the Court below Smt. Bilquees Bano was herself responsible for the situation created by her and she cannot claim maintenance allowance by living separately. It is to be noted that the Court below observed that it was the duty of the husband also to see that both the wives lived amicably in the matrimonial home and no efforts appear to have been made by the husband in this regard. Therefore, the wife could claim maintenance allowance by living separately.

6. Sub-section (4) of Section 125, Cr.P.C. provides that no wife shall be entitled to receive an allowance from her husband under this section if she is living in adultery, or if, without any sufficient reason, she refuses to live with her husband, or if they are living separately by mutual consent. The question that arises for consideration is whether the facts and circumstances stated above constitute a sufficient reason for the wife to refuse to live with her husband so as to entitle her to maintenance allowance by living separately from her husband. Explanation to proviso (2) to Sub-section (3) of Section 125, Cr.P.C. provides that if a husband has contracted marriage with another woman or keeps a mistress, it shall be considered to be just ground for his wife’s refusal to live with him. A woman knowing fully well that the husband is already having another wife agrees to marry such person, should know that she will have to adjust with the first wife and situation may arise in which it may not be possible for her to live with the first wife. The husband is also supposed to know while marrying the second woman during the subsistence of marriage with the first wife that a situation may arise in which the wives may not live peacefully and amicably in the matrimonial home. In such circumstances, it is also the duty of the husband to make effort and create atmosphere in which both the wives could live harmoniously and amicably. The Court below has observed that the husband has not proved to have made any such efforts. There does not appear any evidence on record to show that Smt. Bilquees Bano was responsible for creation of the atmosphere on account of which she had to leave her matrimonial home and besides this till the birth of Mohd. Shaheb Alam, Mohd. Ismail was paying maintenance allowance to Smt. Bilquees Bano though she was living separately. These facts and observations of the Court below merely indicate that the revisionist had acquuieseed in the second wife living separately and had also consented to maintain her by living seperately. Sudden stoppage of maintenance allowance was without sufficient reason. Under circusmtances in my view the wife could claim maintenance allowance by living separately. The learned counsel for the revisionist has referred to the case of Udit Narain v. Smt. Paudharia reported in, (1980) All Cri C 47 : (1980 All LJ 171). That was a case in which the second marriage was solemnised by the husband with the consent of the first wife. It was admitted case of the first wife that Udit Narain married a second time some 10 years back and she acquiesced in the marriage on being assured of her maintenance. She admitted that she was living with Udit Narain’s father along with her son till Udit Narain’s father was alive. The Court had held that when the wife had acquieseced in the second marriage, this could not constitute any good ground for living separately. She never claimed any maintenance so long as Udit Narain’ father was alive. Thus the facts of the case relied upon by the learned counsel lor the revisionist were different. In the instant case, it appears that the wife Smt. Bilquees Bano was being maintained by her husband when she lived separately but he suddenly and abruptly stopped maintaining her. Therefore, it cannot be said that in such circumstances of the present case this could not constitute any good ground for the wife to live separately and claim maintenance allowance.

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7. It may however, be pointed out that the Court below awarded maintenance allowance from May, 1982 without reference to the date on which the application for maintenance allowance was moved by the wife. Sub-section (2) of Section 125, Cr.P.C. provides that such allowance shall be payable from the date of the order, or, if so ordered, from the date of the application for maintenance. A perusal of Sub-section (2) of Section 125, Cr.P.C. indicates that normally the maintenance allowance is to be awarded from the date of the order or, if so ordered, from the date of the application. Although Sub-section (2) does not specifically state but from the language it appears that when maintenance allowance is awarded from the date of the application, the Court must record reasons for doing so. In the present case an application under Section 125, Cr.P.C. appears to have been moved sometime in the year 1983, maintenance allowance for the period prior to the moving of the maintenance allowance application could not have been awarded by the Court in view of provisions of Sub-section (2) of Section 125, Cr.P.C. and since no special reaons for granting maintenance allowance from the date of the application are stated, the maintenance allowance shall normally be awarded from the date of the order. The order of the Court below therefore, deserves to be modified to this extent.

8. Consequently, the revision is partly allowed. The judgment and order of the Court below awarding maintenance allowance is upheld subject to the modification that the maintenance allowance shall be payable from the date of the order.

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