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Madan Lal vs Smt Pushpa Devi & Anr on 11 April, 2018

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Revision No. 1316 / 2017
Madan Lal S/o Puna Ram Ji, aged about 45 Years, B/c Sargra, R/o
Gosiwara, Behind Mahaveer Vidhyamandir School, Puna Ram
House, Tehsil District Pali.

—-Petitioner
Versus

1. Smt. Pushpa Devi W/o Madan Lal Ji, aged about 40 Years, R/o
Gosiwada, Behind Mahaveer Vidhyamandir School, Puna Ram
House, Pali, Tehsil District Pali.

2. Ravina Sagar D/o Madan Lal Minor through her natural guardian
mother Smt. Pushpa Devi.

—-Respondents
__
For Petitioner(s) : Mr. N.A. Rajpurohit
For Respondent(s) : Mohd. Akbar
__
HON’BLE MR. JUSTICE P.K. LOHRA
Order
11/04/2018

Petitioner has preferred this revision petition under Section

19(4) of the Family Courts Act, 1984 read with Section 397/401

Cr.P.C. to assail order dated 6th of September, 2017, passed by

Judge, Family Court, Pali (for short, ‘learned Court below’). The

learned Court below, by the order impugned, partly allowed

application of the respondents under Section 125 Cr.P.C. for

maintenance and granted each of them maintenance to the tune

of Rs.3,000 per mensem, cumulatively Rs.6,000. While granting

maintenance, the learned Court below has also ordered that the

same would be payable to them from the date of application, i.e.

24th of February, 2015.

(2 of 7)
[CRLR-1316/2017]

Learned counsel for the petitioner, at the outset, has not

questioned the quantum of maintenance determined by the

learned Court below but contended that the learned Court below

has not recorded reasons for reckoning the grant of maintenance

from the date of application. It is submitted by learned counsel

that sub-sec.(2) of Section 125 Cr.P.C. though envisages allowing

maintenance allowance or interim maintenance from the date of

the order or from the date of the application but the Court is

required to record reasons for ordering payment of maintenance

from the date of application. He has, therefore, urged that in

absence of reasons being recorded by the learned Court below the

order allowing maintenance payable from the date of application is

per se laconic and not sustainable. In support of his contentions,

learned counsel for the petitioner has placed reliance on a decision

of Supreme Court in case of Jaimniben Hirenbhai Vyas Anr. Vs.

Hirenbhai Rameshchandra Vyas Anr. [(2015) 2 SCC 385].

Per contra, learned counsel appearing for the respondents

has submitted that the learned Court below in exercise of its

discretion has granted maintenance allowance to the respondents

from the date of application, which calls for no interference. In

support of his contention, learned counsel has placed reliance on

the decision of Apex Court in Shamima Farooqui Vs. Sahid Khan

[(2015) 5 SCC 705].

I have bestowed my consideration to the arguments

advanced at Bar.

(3 of 7)
[CRLR-1316/2017]

In view of the fact that learned counsel for the petitioner has

abandoned his plea to challenge the order on merits granting

allowance for maintenance, a very limited issue has survived for

adjudication. The issue which requires consideration by the Court

is as to from which date grant of maintenance is to be reckoned.

It is trite that Court in its discretion can grant maintenance either

from the date of application or from the date of order but then

while doing so, Court is required to record reasons in adherence

of Section 125 and 354(6) Cr.P.C. In Jaimini Ben (supra),

Supreme Court has considered this issue and held:

“The relevant part of Section 125 reads as
follows:

125. Order for maintenance of wives, children and
parents.

(1) If any person having sufficient means neglects
or refuses to maintain-

(a) his wife, unable to maintain herself, or

(b) his legitimate or illegitimate minor child,
whether married or not, unable to maintain
itself, or

(c) his legitimate or illegitimate child (not
being a married daughter) who has attained
majority, where such child is, by reason of
any physical or mental abnormality or injury
unable to maintain itself, or

(d) his father or mother, unable to maintain
himself or herself,

a Magistrate of the first class may, upon proof of
such neglect or refusal, order such person to make
a monthly allowance for the maintenance of his
wife or such child, father or mother, at such
monthly rate, as such Magistrate thinks fit, and to
pay the same to such person as the Magistrate may
from time to time direct:

Provided that the Magistrate may order the
father of a minor female child referred to in Clause
(4 of 7)
[CRLR-1316/2017]

(b) to make such allowance, until she attains her
majority, if the Magistrate is satisfied that the
husband of such minor female child, if married, is
not possessed of sufficient means:

Provided further that the Magistrate may,
during the pendency of the proceeding regarding
monthly allowance for the maintenance under this
sub-section, order such person to make a monthly
allowance for the interim maintenance of his wife
or such child, father or mother, and the expenses
of such proceeding which the Magistrate considers
reasonable, and to pay the same to such person as
the Magistrate may from time to time direct:

Provided also that an application for the
monthly allowance for the interim maintenance and
expenses of proceeding under the second proviso
shall, as far as possible, be disposed of within sixty
days from the date of the service of notice of the
application to such person.

Explanation.- For the purposes of this Chapter,-

(a) “minor” means a person who, under
the provisions of the
Indian Majority Act,
1875 (9 of 1875); is deemed not to have
attained his majority;

(b) “wife” includes a woman who has
been divorced by, or has obtained a divorce
from, her husband and has not remarried.

(2) Any such allowance for the maintenance
or interim maintenance and expenses of
proceeding shall be payable from the date of the
order, or, if so ordered, from the date of the
application for maintenance or interim maintenance
and expenses of proceeding, as the case may be.

The provision expressly enables the Court to grant
maintenance from the date of the order or from the
date of the application. However,
Section 125 of
the Code of Criminal Procedure must be construed
with Sub-section (6) of
Section 354 of the Code of
Criminal Procedure which reads thus:

“354. Language and contents of
judgment-

(6) Every order Under Section 117 or Sub-
section (2) of
Section 138 and every final
(5 of 7)
[CRLR-1316/2017]

order made Under Section 125, Section 145
or
Section 147 shall contain the point or
points for determination, the decision thereon
and the reasons for the decision.

Therefore, every final order Under Section 125 of the
Code of Criminal Procedure [and other sections
referred to in Sub-section (c) of
Section 354] must
contain points for determination, the decision thereon
and the reasons for such decision. In other words,
Section 125 and Section 354(6) must be read
together.”

Section 125 of the Code of Criminal Procedure,
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 Code of Criminal
Procedure, 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 case.”

The judgment in Shamima Farooqui (supra), on which the

learned counsel for the respondents has placed reliance, is not

dealing with the surviving issue involved in the matter and it

simply deals with inherent and fundamental principle behind

Section 125 Cr.P.C. While considering the inherent and

fundamental principle behind Section 125 Cr.P.C., the Court held:

“As long as the wife is held entitled to grant of
maintenance within the parameters of
Section 125
Cr.P.C., it has to be adequate so that she can live
with dignity as she would have lived in her
matrimonial home. She cannot be completed to
become a destitute or a beggar.”

(6 of 7)
[CRLR-1316/2017]

As the learned counsel for the petitioner has not questioned

the impugned order to the extent maintenance is awarded and his

grievance is confined to the date from which it is to be reckoned,

the judgment relied upon by the learned counsel for the

respondents is clearly distinguishable.

Upon perusal of the impugned order, it is abundantly clear

that the learned Court below has not recorded reasons for

reckoning maintenance from the date of application payable to the

respondents, therefore, to that extent order cannot be sustained.

Although in the given circumstances best course open to the Court

is to remand the matter but in my opinion it would unnecessarily

prolong the agony of the respondents who are in state of vagrancy

and destitute since February 2015. Therefore, for amelioration of

financial state of affairs as well as their agony and other

sufferings, it would be just and appropriate to dispose of the

matter perpetually by this order to do substantial justice in the

matter.

In view of foregoing discussion, the present revision petition

is partly allowed and the impugned order to the extent of granting

maintenance to respondents from the date of application is set

aside and the respondents are declared entitled for grant of

maintenance from the date of order. The order impugned stands

accordingly modified.

(P.K. LOHRA)J.

(7 of 7)
[CRLR-1316/2017]

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