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Reason to be recorded while granting maintenance from date of application as per crpc 354(6)

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.

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.

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
(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 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 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.

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