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Maintenance from the Date of the Application or From Date of the Order ?

The High Court Of Madhya Pradesh

CRR-3542-2019

AMIT VERMA

Vs

SMT. SANGEETA VERMA AND OTHERS

Jabalpur, Dated : 08-01-2020
Shri Paritosh Trivedi, learned counsel for the petitioner.
Shri N.K.Shah, learned counsel for the respondents.

This revision petition under Section 397/401 of Cr.P.C. has been preferred by the petitioner being aggrieved by the order dated 28.06.2019, in MJC No. 400/2017, passed by Principal Judge, Family Court Bhopal whereby the learned Principal Judge directed the petitioner to pay the interim maintenance of Rs. 6250/- per month to the respondent No. 1 and Rs. 3500/- to respondent No.2. from the date of filing the application.

Learned counsel for the petitioner submits that the order passed by the learned Family Court is bad in law and deserves to be set aside. He submits that without going through the evidence, the Family Court has decided the monthly income of the petitioner in higher side. He further submits that the learned Family Court has over looked the fact that the application filed on 12.05.2017 whereas the petitioner appeared on 21.02.2019 after issuing of notices, moreover the interim application was decided on 28.06.2019, therefore, the order giving the interim maintenance from the date of application is not justifiable. The learned Family Court has also not considered the fact that the petitioner got a his job from compassionate appointment and he has burden of his entire family. He further submits that his siblings are dependent in his income as they are studying. The petitioner is also bearing expenses of medical treatment of his old mother. Apart from that the respondent No. 1 is earning 15,000/- per monthly by doing a job in a company. Therefore, the order of interim maintenance passed by learned Family Court may be quashed.

Learned counsel for the respondents opposes the petition and submits that the learned Family Court has rightly considered each and every fact of the case and passed a reasoned order. He further submits that the petitioner is earning of Rs. 60,000/- per month whereas the respondent No.1 has no employment and depends on her parents. The respondent No.2 is studying and her education expenses are being borne by parents of Respondent No.1. with the aforesaid, he prays for dismissal of this revision petition.

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Heard perused the case.

On perusal of case, it is an admitted fact that the marriage of petitioner was solemnized with the respondent on 24.01.2011 and they have been blessed with one daughter i.e. respondent No.2 who is studying in school. It is also an admitted fact that the petitioner got his job of Lower Division Clark/ASI through compassionate appointment. The petitioner has submitted some documents showing his liabilities towards his family members. On perusal of impugned order, it also appears that the learned Principal Judge, Family Court found that the respondent No.1 is not earning and the petitioner has failed to file any document relating to her income. At the stage of granting interim maintenance deep merits of the case like reason to live separately from the petitioner cannot be looked into, same can be determined after adducing the evidence before the Family Court by both the parties. So far as income of the petitioner is concerned, as above said that he is working as LDC/ASI in police department, since 2006, thus, income assessed by the learnd Family Court as Rs. 25,000/- per month is found proper. Accoridngly, the awarded maintenance amount as Rs. 6250/- per month to the respondent No.1 and Rs. 3500/- per month to respondent No. 2 is also found justifiable.

The only question remains is as to whether the order for paying the interim maintenance from the date of application not from the date of order is justifiable or not ? On perusal of order sheet annexed in the case it appears that the respondent No. 1 has filed her application on 12.05.2017 and notice was served upon the petitioner on 21.02.2019. During the said period, some hearings was adjourned due to non payment of P.F. by the respondent No. 1 for issuance of notice. In the case of Shail Kumari Devi and another Vs. Krishan Bhagwan Pathak reported in (2008) 9 SCC 632, the Hon’ble Apex Court has held as under:-

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43. We, therefore, h o l d t h a t while deciding an application under Section 125 o f the code, a Magistrate is required to record reasons for granting or refusing to grant maintenance t o wives, children or p a re n t s . 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 (l) of Section 125 of the Code i n absence o f express provision to that effect.(under lining added)

Subsequently, in the case of Jaiminiben Hirenbhai Vyas and another Vs. Hirenbhai Rameshchandra Vyas and another reported in (2015) 2 SCC 385, after applying the verdict of Shail Kumari Devi’s case, the Hon’ble Apex Court has held as under:-

6. In Shail Kumari Devi v. Krishan Bhagwan Pathak, this Court dealt with the question as to from which date a Magistrate may o r d e r p a y m e n t of maintenance to wife, children or parents. In Shail Kumar Devi, t h i s Court considered a catena o f decisions b y the various Hi gh Courts, before arriving at the conclusion that it was incorrect to hold that, as a normal rule, the Magistrate should grant maintenance only f rom the date of the order and not from the date of t h e application f o r maintenance. I t is, therefore, open to the Magistrate to award maintenance from the date of application.
The Court held, and we agree, that if the Magistrate intends to pass such an order, he is required to record reasons in support of such Order. Thus, such maintenance can be awarded from the d a t e o f 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 o f the application, express order is necessary.
(under lining added) In another case Smt. Krishna Jain Vs. Dharam Raj Jain reported in 1992 Cr.L.J. 1028 , this High Court has held that recording of reason is essential in either case namely when the maintenance is granted from the date of application or from the date of order. No rule that normally maintenance be awarded from the date of order and only if it is awarded from date of application, recording of reason is necessary.

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Herein, on perusal of impugned order, I found that the learned Principal Judge Family Court has not given any express reason to give the maintenance from the date of application. Looking to the responsibility of the petitioner towards his family members being employed through compassionate appointment as well as the fact that the notice was served upon him on 21.02.2019, I am of the opinion that the awarded maintenance amount be given from the date of order not from date of application.

Accordingly, this petition is disposed of with the direction to the petitioner to pay the interim maintenance amount of Rs.. 6250/- per month to the respondent No.1 and Rs. 3,500/- per month to respondent No. 2 from the date of order of learned Principal Judge, Family Court, Bhopal i.e. 28.06.2019. He shall pay the interim maintenance amount regularly until the final order is passed.

(RAJENDRA KUMAR SRIVASTAVA) JUDGE L.R.

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