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Judge has to justify when he order Maintenance from date of Application

CALCUTTA HIGH COURT

Bench: JUSTICE Raghunath Ray

AMIT KUMAR DAS

Vs.

BASANTI GIRI & ANR. On 30 April 2010

ATTORNEY(S)
Ashraf Ali
Indrajit Chatterjee
Mukteswar Maity
S.S.Roy

JUDGEMENT :-

1 In this revisional application the petitioner/husband has sought to challenge an order of maintenance dated 1-4-2006 passed by the learned Judicial Magistrate, Second Court, Contai, Purba Medinipur in Misc. Case No. 474 of 1997. By the aforementioned order the learned Court below awarded maintenance at the rate of Rs. 500/- and Rs. 300/- per month for the petitioner/ wife and her minor son respectively from the date of filing of the petition seeking maintenance, that is, on and from 1-12-1997.

2 Being aggrieved, the husband/petitioner filed a Criminal Revision Case No. 82/06 before the learned Sessions Judge, Purba Medinipur challenging the order impugned. The learned Sessions Judge, Purba Medinipur admitted the revisional application vide Order No. 1 dated 6-6-2006 on condition that the petitioner would pay Rs.40,000/- to the opposite party/wife by next. one month, that is, on or before 6-7-2006 and the petitioner shall continue to pay the regular maintenance of Rs. 800/- per month as per order of the learned Court below to the opposite party/wife. Accordingly, notice was also issued upon the opposite parties. However, the record of the said Criminal Revision was subsequently put up at the instance of the revisionist/husband on 8-6-2006 before the learned Sessions Judge and the revisionist/husband filed a petition with a prayer for not pressing the Criminal Revisional Case No. 82/2006. Such prayer was allowed by the learned Sessions Judge and, accordingly, the said revision was dismissed as “being not pressed.” It is needless to mention that the petitioner/husband did not comply with the conditional order of payment of Rs. 40,000/- to the opposite party/wife within one month as directed by the first Court of Revision.

3 The petitioner/husband, thereafter, came up before this Court with another revisional application under Sections 401/482 of the Code of Criminal Procedure and the judgment and order dated 1-4-2006 passed by the learned trial Court passed in Misc. Case No. 474 of 1997 thus came under challenge before this Court for the second time.

4 The revisional application was admitted on 14-3-2007 by this Court with a direction that the matter would appear as “Contested Application” four weeks thereafter upon notice to the other side and filing of Affidavit of Service. There was also an interim order of stay in respect of Misc. Execution Case No. 21/06 pending before the learned Judicial Magistrate, Second Court, Contai for a period of six weeks from the date of order on condition that the petitioner shall deposit a sum of Rs. 15,000/- in connection with the said case before the learned Court below in the name of the wife/opposite party within fifteen days from the date of passing of the order with liberty to the opposite party/wife to withdraw the same under proper receipt and proper identification. Such amount of money was, however, deposited by the revisionist husband before the learned Court below within the stipulated period of time.

5 Mr. Ashraf Ali, the learned Counsel appearing for the revisionist/husband, submits that since marriage between the parties is found to be valid by the Id. Trial Court and quantum of maintenance also appears to be quite just and reasonable, the scope of challenge is very limited in this case. The main grievance of the revisionist highlighted by him is that the husband has been directed to pay maintenance from the date of filing of maintenance case, that is, on and from 1-12-1997. His submission is that it is quite impossible for the revisionist-husband to pay such a huge amount of arrears since there is nothing on record to indicate that he earns any fixed amount of money per month. In fact, his meagre monthly income is ever more fluctuating. It is, therefore, submitted by him that the husband/petitioner is ready to pay maintenance from the date of order. The learned counsel for the petitioner further submits that if easy instalments are granted, the arrears of maintenance upto April, 2010 would also be paid to the opposite party/wife within a reasonable period of time. It is also argued by him that the learned Court below has not assigned any reason in support of the direction to pay maintenance from the date of filing of the maintenance petition itself. According to him, such direction is not legally tenable since no reason whatsoever has been recorded in the order impugned.

6 Mr. Subhendu Sekhar Roy, the learned Counsel appearing for the State, submits that whenever the findings of the learned Court below on all other counts have not been challenged by the revisionist/husband, he does not like to oppose his prayer to allow him to pay maintenance from the date of order. In this context Mr. Roy has also referred to a ruling of the Apex Court reported in (2008) 2 C Cr LR SC 817 : (AIR 2008 SC 3006) in the case of Shail Kumari Devi V/s. Krishan Bhagwan Pathak wherein it is ruled that maintenance can be granted from the date of application, if the Court thinks fit and proper and it is within the power of the Court to grant such maintenance and in such circumstances the Court is required to record reasons in support of such order. He is, therefore, of the view that in the. absence of any reason or circumstances justifying award of such maintenance from the date of application, the impugned direction to pay maintenance from the date of application cannot be sustained.

7 Mr. Mukteswar Maity, the learned Counsel for the opposite party/wife, argues that the revisionist/husband has not led any evidence before the learned trial Court to indicate that he is not a business-man and he has no fixed monthly income. Rather, the learned Court below accepted the contention of the opposite party/wife regarding monthly income of the petitioner/husband and has, accordingly, awarded maintenance from the date of filing of this petition. It is further submitted by him that, if this Court ultimately directs the revisionist/husband to pay maintenance from the date of application, the husband/petitioner should be directed to pay the entire arrears of maintenance together with current maintenance within a specific time frame so that the wife/opposite party may not be put into further hardship.

8 Having heard the learned Counsel for the parties and considered the materials and circumstances on record, it is found that the learned Court below has failed to record any reason whatsoever as to why maintenance has been awarded on and from the date of filing of the petition that too after a lapse of almost nine years from the date of filing of the petition. More so, whenever there is nothing on record to indicate that the revisionist/ husband is responsible for causing such inordinate delay in getting disposed of the maintenance proceeding in question. In such a fact situation, it is to be examined as to whether the order directing payment of maintenance from the date of filing of the petition de hors reasoning is justifiable as per the relevant provisions of law enshrined in amended section 125(2) Cr. P.C. itself and also in the light of the principles laid down in various judicial pronouncements.

9 The amended sub-section (2) of Section 125, . Cr. P.C. may be reproduced as under :

“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.”

10 Bare reading of sub-section (2) of Section 125, Cr. P.C. leaves no room for doubt that the discretion is conferred on the magisterial Court to award maintenance either from the date of the order or from the date of the petition as per the telling circumstances of the case.

11 Now the question crops up as to how such discretion is to be exercised. True, the sub-section (2) of Section 125 Cr.P.C. is silent on that aspect of the matter. But the fact remains that the exercise of discretion is required to be made in a most judicious manner. On conclusion of trial in a maintenance proceeding at the first and foremost stage, Id. Trial Magistrate is called upon to pass a reasoned order recording his finding that the essential requirements of Section 125 Cr. P.C. have been satisfied and the applicant is entitled to an order of maintenance. In the penultimate stage, he thereafter, proceeds to determine the quantum of maintenance to be awarded, of course, by taking into account income of the O. P. together some other relevant factors closely related to the issue. In the final stage he is to weigh two options stipulated in the statute itself and to decide the date from which such maintenance shall be payable. Needless to mention that the choice of one of the two options envisaged in Section 125(2) Cr. P. C. cannot and should not be based on whims, caprice and fancy of the Id. trial Magistrate. In order to arrive at a just decision in this regard he is to take the attending materials and circumstances on record in its entirety and to formulate sound and compact reasoning through a mental process in favour or against the award of maintenance either from the date of order or from the date of application. In such a fact situation, it would be reasonably appropriate to give an inkling of judicial mind in the concluding portion of the judgment as to why award of maintenance from the date of application is necessitated. In fact, some sort of reasoning should be recorded in both the eventualities to subserve the ends of justice. To be more specific, if the Id. Magistrate is of opinion that because of existence of certain circumstances, the case has become exceptional and maintenance should be payable from the date of application, he would feel free to record reasons through meticulous analysis of exceptional circumstances and to pass order accordingly. In the event it is converse, the absence of such exceptional circumstances in a particular case, may be highlighted and the maintenance can be granted from the date of order. In my considered view, it would be shocking for a judicial conscience, if direction of the learned Trial Magistrate awarding maintenance either from the date of order or from the date of application is not preceded by any discussion in the body of judgment.

12 Adverting to judicial decisions it seems that there is a sharp divergence of opinion as to whether the trial Courts are required to record reasons for awarding maintenance from the date of application. In view of difference of opinion between two learned Judges of the Single Bench of this High Court on that aspect of the matter, the issue was referred to a Division Bench of this Court. The reference was disposed of by the Division Bench in the decision reported in 1998 C. Cr. L. R. (Cal) 101 (Sankar Prasad Ghosh, Petitioner V/s. Lakshmi Rani Ghosh, O. P.). It is ruled that if the Court specifically passes an order for payment of maintenance from the date of application it is not necessary to record reasons in writing for such decision.

13 The afore-discussed finding of the Division Bench of this Court does not, however, hold the field since such finding now stands overruled and all controversies have been set at rest in this regard in view of a recent ruling of the Hon’ble Apex Court reported in (2008) 2 C Cr L R (SC) 817 : (AIR 2008 SC 3006) (Shall Kumari Devi and Anr. V/s. Krishan Bhagwan Pathak alias Krishna B. Pathak (supra)).

14 In paragraph 41 of the afore-quoted ruling it is held by the Hon’ble Apex Court as under :

“It is, therefore, open to the Magistrate to award maintenance from the date of application and there is nothing which requires recording of ‘special reasons’ though he must record reasons as envisaged by
sub-section (6) of Section 354 of the Code in support of the order passed by him.”

15 Significantly, prior to amendment of sub-sections (1) & (2) of Section 125 Cr. P.C. on the strength of Criminal Procedure Code (Amendment) Act, 2001 there was no specific provision in the Code itself for grant of interim maintenance and in the year 1985 when the issue came up for consideration before the Hon’ble Apex Court it was decided in Savitri V/s. Govind Singh Rawat case reported in (1985) 4 SCC 337 that the Code does not expressly prohibit making of an interim order directing payment of maintenance pending disposal of an application for maintenance and accordingly, interpreting the relevant provisions of the Code, the Hon’ble Apex Court laid emphasis on the duty of a person liable to pay maintenance. Applying the principles of “Social Justice” and having regard to the salutary nature of the jurisdiction exercised by a Magistrate u/S.125 of the Code, it was held “that the said provision should be interpreted as conferring power by necessary implication on the Magistrate to pass an order directing a person against whom an application is made under it to pay reasonable sum by way of interim maintenance subject to the other conditions referred to therein pending final disposal of the application.” However, after the lapse of more than fifteen years, the Parliament brought in the necessary legislation by amendment and the provision now expressly authorises the Magistrate to grant interim maintenance during the pendency of the maintenance proceeding. Such interim maintenance can also be granted even from the date of the filing of maintenance application.

16 Against such backdrop of social justice the Id. Trial Magistrate while passing an order awarding maintenance is to take the relevant materials and surrounding circumstances forthcoming in course of trial into consideration and to decide whether passing of an order of maintenance from the date of application is justified.

17 Undisputedly, provisions as embedded in sections 125, 126, 127 & 128 cr. p.c. are intended to fulfil a social purpose and

“their object is to compel a man to perform the moral obligation which he owes to society in respect of his wife and children. By providing a simple, speedy but limited relief, they seek to ensure that the neglected wife and children are not left beggared and destituted on the scrap-heap of society and thereby driven to a life of vagrancy, immorality and crime for their subsistence.”

In such view of the matter, if a maintenance proceeding is kept pending beyond the reasonable period of time and no interim maintenance is received, a solemn duty is cast upon the Id. Court below to take into consideration, the plight of the petitioner during the period when maintenance proceeding is being kept pending and in such a situation the maintenance is required to be awarded from the date of filing of application. However, if a maintenance proceeding is finally disposed of within a reasonable period of one year and the O. P. also extends full co-operation in getting the maintenance proceeding disposed of within the shortest possible period of time, in such an ideal situation maintenance may be awarded from the date of order itself.

18 Therefore, there is no doubt that in exceptional cases maintenance can be awarded from the date of application. However, some of the categories of cases where discretion can be exercised to award maintenance from the date of filing of maintenance proceeding are :

(i) Where the applicant is not in receipt of any interim maintenance.

(ii) Where the applicant shows the dire need of money for the purpose of maintaining herself for which she had to raise debt during the period when the application had been pending.

(iii) Where disposal of maintenance application is inordinately delayed because of dubious method adopted on the part of the opposite party by raising a vexatious plea of denial of marriage or paternity of the child or for some other frivolous grounds of similar nature or the proceeding is being protracted because of the deliberate manoeuvring by the opposite party.

It is, however, made clear that the above categories of cases are given by way of illustration wherein such discretion can be exercised to meet the imperative requirement of social justice. In fact, it may not be feasible to give an exhaustive list of varied kinds of such cases or specific guidelines in this regard. At any rate, each case is to be decided on its own facts and no straight-jacket formula can be evolved in this regard.

19 In this context it is importantly important to note that discretion conferred on the Court by the Code to award maintenance either from the date of order or from the date of petition is to be exercised judiciously with utmost circumspection followed by recording of reasons even though no special reasons, are required to be recorded for passing a particular order directing payment of maintenance from the date of application.

20 On a wholesome appreciation of the entire materials and circumstances on record as have been made available in the instant case coupled with principles of law as laid down in different judicial pronouncements, I am of the definite view that the Id. Trial Magistrate is obligated to justify his decision directing the opposite party to pay maintenance to the petitioner from the date of application rather than from the date of order. But the Id. Magistrate has not cared to record reasons justifying grant of maintenance from the date of application. Such direction being vulnerable is liable to be set aside.

21 That apart, the entire judgment and order impugned has been subjected to rigorous judicial scrutiny. It appears that the Id. court’s findings on the point of validity of marriage and legitimacy of their child are based upon the conclusive finding by a civil Court of competent jurisdiction in Title Suit No. 101 of 1998 vide Judgment and Order dated 30-4-2003. Such findings of the ld.Civil Judge (Jr. Division) Contai were sub-sequently affirmed by Id. Additional District Judge, Contai in T. A. No. 8/2003 as per appeal Court’s judgment dated 30-7-2009.

In such view of the matter this Court does not find any legal infirmity in the Judgment and Order impugned. Therefore, findings of the Id. Trial Magistrate on that score are sustainable.

22 Viewed in the light of foregoing discussion, I am to opine that award of maintenance from the date of application is not legally sustainable in the facts and circumstances of the case in hand since the learned Trial Magistrate has failed to record reasons in support of such decision.

23 It is accordingly, held that the learned Trial Magistrate is bound to record reasons justifying his decision to award maintenance from the date of application in a maintenance proceeding as mandated by the Hon’ble Apex Court in : (AIR 2008 SC 3006) Shail Kumari Devi & Anr. V/s. Krishan Bhagwan Pathak alias Krishna B. Pathak (supra) and the learned Trial Court’s failure to record reasons in support of grant of maintenance from date of application would render such direction invalid in the eye of law.

24 In such trajectory, I am of the considered view that the husband/petitioner in the present case should be directed to pay maintenance from the date of order, that is, on and from 1-4-2006 to sub-serve the interest of justice. The husband/petitioner is, however, to liquidate the arrears of maintenance within four months from the date of communication of this order to the learned Court below. It appears from the calculation sheet that the total arrears of maintenance, if it is calculated from the date of passing of order till this date, appears to be Rs. 38,400/- and as admitted by both sides out of the said amount, a sum of Rs. 15,000/- has already been paid to the wife/opposite party. Therefore, the balance amount of arrears of maintenance, which is required to be paid, stands as Rs. 23,400/-. The husband/petitioner is to pay Rs. 6,000/- in three monthly instalments and the balance of Rs. 5,400/-, being the last instalment, must be paid within 31 st August, 2010. The husband/petitioner is also to pay current maintenance of Rs. 800/- in total together with monthly instalments within 30th of succeeding month starting from the month of May. 2010.

25 Such payment of monthly instalments together with current maintenance should be remitted to the opposite party/ wife through Money Order without deducting M. O. commission. It is, however, made clear that in default of payment of any of the instalments within the stipulated period of time, the entire arrears of maintenance together with current maintenance shall be recoverable at a time and the wife /opposite party shall be at liberty to take appropriate steps through initiation of an execution proceeding in accordance with law before the learned Executing Court.

26 The Judgment and Order impugned except the direction for payment of maintenance from the date of filing of the application passed by the learned Court below stands affirmed with a direction to pay maintenance from the date of order i.e. on and from 1-4-2006. The direction for payment of maintenance from the date of filing of an application i.e. on and from 1-2-1997 as contained in the operative portion of the order, be set aside on contest.

27 With the observations and modifications as indicated hereinbefore revisional application is, thus, disposed of on contest.

28 In the facts and circumstances of the case, there will be no order as to costs.

29 Let a copy of this judgment and order be sent to the learned Court below forthwith for information and necessary compliance.

30 Urgent certified copy of this order, if applied for, be supplied on priority basis.

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