Ajay Rohit vs Smt. Joti Rohit Thr. Ramesh Rohit on 28 November, 2017

1 Cr.R.No.2401/2015

IN THE HIGH COURT OF MADHYA PRADESH PRINCIPAL
SEAT AT JABALPUR

Cr.R.No.2401/2015

Ajay Rohit aged 30 years, son of
Purshottam Rohit R/o MIG 48
Vivekanand Nagar, Police Station
Kotwali, District Damoh
……….Petitioner.
Vs.

1. Smt. Jyoti Rohit, aged about 26
years wife of Ajay Rohit (since
dead). Represented through
respondent No.2 Gaurdian Shri
Ramesh Rohit.
2. Mahima Rohit aged about 5 years
daughter of Ajay Rohit through
guardian Ramesh Rohit son of
Shivlal Rohit, R/o Civil Ward
No.1, Shobha Nagar, Police
Station Kotwali, District Damoh.
……….Respondents.
…………………………………………………………………………………………………..
Present: Hon’ble Shri Justice C.V. Sirpurkar
……………………………………………………………………………………………………
Shri Saurabh Singh, counsel for the petitioner.
Shri Prashant Dubey, counsel for the respondents.
………………………………………………………………………………………………….
2 Cr.R.No.2401/2015

ORDER

(28-11-2017)

1. This criminal revision is directed against order dated
18.8.2015 passed by the Principal Judge, Family Court, Damoh
in M.J.C. No.433/2015, whereby the application for
maintenance filed on behalf of respondent no.2 Mahima Rohit
was allowed and the petitioner was directed to pay Rs.2000/-
per month by way of maintenance under Section 125 of the
Cr.P.C. to respondent Mahima from the date of application,
i.e., 21.9.2011.

2. The facts giving rise to this criminal revision may be
summarized as hereunder: Respondent No.2 Mahima Rohit is
five years old daughter of petitioner Ajay Rohit. Petitioner
Ajay had married respondent No.1 Jyoti Rohit by Hindu rites.
Respondent No.2 Mahima was born in the wedlock on
12.11.2009. During the pendency of the case, respondent No.1
Jyoti Rohit, mother of respondent No.2 Mahima, expired;
therefore, by order dated 28.1.2015 passed by the Court of
Judicial Magistrate First Class, Damoh, Ramesh Rohit,
maternal grand-father of respondent No.2 Mahima Rohit, was
substituted as respondent No.1 and guardian of respondent
No.2 Mahima. After the trial, the Principal Judge, Family
Court, Damoh directed petitioner Ajay to pay maintenance
under Section 125 of the Cr.P.C. to respondent Mahima Rohit
@ Rs.2000/- per month from the date of the application, i.e.,
21.9.2011. It was also directed that the interim maintenance
paid by the petitioner to respondent No.2 shall be adjusted.

3 Cr.R.No.2401/2015

3. It is not in dispute that respondent No.2 Mahima is
daughter of petitioner Ajay Rohit. It is also not in dispute that
her mother Jyoti Rohit has since expired and the respondent
No.2 Mahima Rohit, at present, is living with her maternal
grand-father Ramesh Rohit, who has been appointed her
guardian for the purpose of present proceedings. Petitioner
Ajay had also admitted during his cross-examination that he
has since married one Nisha Raj, who is at present living with
him as his wife. It is also admitted position in the case that the
petitioner has filed an application under Section 7 of the Hindu
Minority and Guardianship Act, 1956 for the custody of
respondent No.2 which is still pending. He has also admitted in
his cross examination that he earns Rs.14,700/- per month as a
teacher in a government school.

4. In aforesaid circumstances, on basis of age, it may be
presumed that respondent Mahima is unable to maintain
herself. Thus, it is clear that the respondent No.2 is entitled to
receive monthly maintenance from the petitioner at least till
the proceedings for the custody of respondent No.2 are decided
in favour of the petitioner and her custody is actually restored
to him. Keeping in view the salary of the petitioner and his
other liabilities as well as the current requirement of the
respondent No.2, the maintenance at rate of Rs.2000/- per
month is appropriate and warrants no interference.
The main contention that has been raised on behalf the
petitioner is that the maintenance ought to have been awarded
from the date of the order, i.e., 18.8.2015 and not from the date
4 Cr.R.No.2401/2015

of the application i.e. on 21.9.2011. In this regard learned
counsel for the petitioner has placed reliance upon the judgment
rendered by the Supreme Court in the case of Jaiminiben Vs
Hirenbhai, (2015) 2 SCC 385, wherein it has been held that
whether the maintenance is granted from the date of the order or
the date of the application, reasons have to be recorded because
Sections 125 and 354 (6) of the Cr.P.C. have to be read
together.

5. On the other hand, learned counsel for the respondent has
invited attention of the Court to the judgment passed by the
Supreme Court in the case of Shail Kumari Devi Vs. Krishan
Bhagwan 2009 (1) MPLJ (Cri.) 14, wherein the Supreme Court
has observed that maintenance allowance under Section 125 of
the Cr.P.C. can be awarded from the date of the order, or, if so
ordered, from the date of the application for maintenance, as
the case may be. For awarding maintenance from the date of
the application, express order is necessary. No special reasons,
however, are required to be recorded by the Court. No such
requirement can be read into sub-section (1) of Section 125 of
the Cr.P.C. in absence of express provisions to that effect.

6. It may be noted that another Bench of Supreme Court in
the case of Bhuwan Mohan Singh Vs. Meena (2015) 6 SCC
653 and the Bench went on to observe that:

“14. While dealing with the relevant date of grant of maintenance, in Shail
Kumari Devi v. Krishan Bhagwan Pathak10, the Court referred to the
Code of Criminal Procedure (Amendment) Act, 2001 (50 of 2001) and
came to hold that: (SCC p. 639, para 21)

21. “… Even after the amendment of 2001, an order for payment of
maintenance can be made by a court either from the date of the order or
where an express order is made to pay maintenance from the date of
5 Cr.R.No.2401/2015

application, then the amount of maintenance can be paid from that date i.e.
from the date of application.”

The Court referred to the decision in Krishna Jain v. Dharam Raj Jain11
wherein it has been stated that: (Shail Kumari Devi case10, SCC p. 645,
para 37)

37. “… To hold that, normally maintenance should be made payable from
the date of the order and not from the date of the application unless such
order is backed by reasons would amount to inserting something more in
the sub-section which the legislature never intended. The [High Court had]
observed that it was unable to read in sub-section (2) laying down any rule
to award maintenance from the date of the order or that the grant from the
date of the application is an exception.”

The High Court had also opined that whether maintenance is granted from
the date of the order or from the date of application, the Court is required
to record reasons as required under sub-section (6) of Section 354 of the
Code.

15. After referring to the decision in Krishna Jain11, the Supreme Court
adverted to the decision of the High Court of Andhra Pradesh in K.
Sivaram v. K. Mangalamba12 wherein it has been ruled that the
maintenance would be awarded from the date of the order and such
maintenance could be granted from the date of the application only by
recording special reasons. The view of the learned Single Judge of the
High Court of Andhra Pradesh stating that it is a normal rule that the
Magistrate should grant maintenance only from the date of the order and
not from the date of the application for maintenance was not accepted by
this Court. Eventually, the Court ruled thus: (Shail Kumari Devi case10,
SCC p. 647, para 43)

43. “We, therefore, hold that while deciding an application under Section
125 of the Code, a Magistrate is required to record reasons for granting or
refusing to grant maintenance to wives, children or parents. Such
maintenance can be awarded from the date of the order, or, if so ordered,
from the date of the application for maintenance, as the case may be. For
awarding maintenance from the date of the application, express order is
necessary. No special reasons, however, are required to be recorded by
the court. In our judgment, no such requirement can be read in sub-section
(1) of Section 125 of the Code in absence of express provision to that
effect.”

7. In the context of the present case; however, this
discussion is academic because learned Principal Judge,
Family Court has bestowed its consideration upon the date
from which the maintenance allowance is to be awarded to the
respondent No.2 in paragraph Nos.22 and 23 of the impugned
6 Cr.R.No.2401/2015

judgment and placing reliance upon the full Bench judgment of
the High Court of Madhya Pradesh in the case of Saroj Bai
Vs. Jai Kumar 1994 MPLJ 928 has held that ordinarily, the
maintenance should be awarded from the date of the
application under Section 125 of the Cr.P.C. The Court below
further held that respondent No.2 is a minor and required the
maintenance allowance from the date of the application.

8. Aforesaid reason given by the learned Principal Judge
has been assailed by learned counsel for the petitioner, in this
criminal revision by inviting attention of the Court to the fact
that at the time of filing of the application, the respondent
No.2 lived with her mother, namely, Jyoti Rohit, who worked
as a Contract Teacher (Grade-III) and admittedly earnings
Rs.2500/- per month; therefore, both mother and father had
equal responsibility to maintain the child. This Court is not
impressed by the reasoning advance by learned counsel for the
petitioner. Even if it is assumed for the sake of arguments, that
Jyoti Rohit, mother of present respondent No.2 Mahima,
earned Rs.2500/- per month, this was too meager an amount
and was barely sufficient for the sustenance of Jyoti Rohit
herself with human dignity. She could not have been expected
to have also borne the expenses of her daughter, while her
father was alive an earning to the tune of Rs.14000/- per
month. Thus, learned Principal Judge, was perfectly justified
in awarding maintenance allowance at the rate of Rs.2000/- per
month to respondent No.2 Mahima, from the date of the
application.

7 Cr.R.No.2401/2015

9. Accordingly, the impugned order does not suffer from
any illegality, irregularity or impropriety warranting
interference by the High Court in revisionary jurisdiction.

10. Consequently, this criminal revision deserves to fail and
is accordingly dismissed.

11. The petitioner shall bear his own cost of this criminal
revision and also that of the respondent No.2.

(C.V. Sirpurkar)
Judge

ahd

Digitally signed by MOHD
AHMAD
Date: 2017.11.29 03:52:09 -08’00’
IN THE HIGH COURT OF MADHYA PRADESH PRINCIPAL
SEAT AT JABALPUR

Cr. R. No.2401/2015

Ajay Rohit

Vs.

Smt. Jyoti Rohit and another

ORDER

Post for : .11.2017

(C.V.Sirpurkar)
Judge

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