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Judgments of Supreme Court of India and High Courts

Shri. Shashank S/O. Mohanlal … vs Sau. Pallavi W/O. Shashank … on 31 January, 2018

1

IN THE HIGH COURT OF JUDICATURE AT BOMBAY,

NAGPUR BENCH : NAGPUR

Criminal Writ Petition No. 150 of 2017

Petitioner : Shashank Mohanlal Rangari, aged about 35
years, Occ: service, presently residing at Type-
III, GSI Colony, Malviya Nagar, Jaipur,
permanent resident of 455, New Babhulkheda,
Near Maitri Boudha Vihar, Post Bhagwan Nagar,
P. S. Ajni, Nagpur

Versus

Respondent: Sau Pallavi w/o Shashank Rangari, aged about

27 years, Occ: service, resident of c/o Sunil P.
Rahulkar, Gali No. 3, Kunjilalpeth, Nagpur

Shri A. G. Bambal, Advocate for petitioner.

Shri R. M. Daruwala, Advocate for respondent

Coram : S. B. Shukre, J

Dated : 31st January 2018

Oral Judgment

1. Heard. Rule. Rule made returnable forthwith by consent of

parties.

2. The first challenge of the petitioner to the impugned order

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dated 8th December 2016 granting interim maintenance of Rs. 1500/- per

month passed by the Family Court-II, Nagpur is that those deductions

apart from the statutory deductions were not considered by the Family

Court though they ought to have been considered. This is not agreed to

by learned counsel for the respondent.

3. The law is well settled on the point of which deductions from

the salary ought to be considered and which ought to be excluded while

deciding the quantum of maintenance allowance payable by one party to

the other. The law requires that only statutory deductions be considered

ignoring all other deductions from the salary. As of now , the impugned

order discloses that this law has been followed by the learned Judge of

Family Court. The first challenge is, therefore, rejected.

4. The second challenge to the impugned order is about

granting of interim maintenance from the date of application i.e.

14.8.2015 without recording any reasons as per the law laid down by the

Hon’ble Apex Court in Jaiminiben Hirenbhai Vyas and anr v. Hirenbhai

Rameshchandra Vyas and anr reported in 2015 ALL MR (Cri) 376 (SC).

Learned counsel for the respondent submits that the ratio of the above

judgment is applicable only to final order and not to the impugned order,

which is an interim order.

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5. In the case of Jaiminiben Hirenbhai Vyas and anr v.

Hirenbhai Rameshchandra Vyas and anr (supra), the Hon’ble Supreme

Court has held that Section 354 (6) Cr. P. C. prescribes that every court

passing a final order under Section 125 or Section 117 of Cr. P. C. and

orders under sections mentioned therein, must state the reasons in

support of the order passed by it. The Hon’ble Supreme Court further

held that since application under Section 125 Cr. P. C. grants

discretionary power to the Court to direct payment of maintenance either

from the date of order or from the date of application for maintenance, it

would be necessary for the Court to record reasons when it directs

payment of maintenance in both cases, either from the date of

application or from the date of order. The Hon’ble Supreme Court has

held that sub-section (2) of section 125 Cr. P. C. must be construed with

sub-section (6) of Section 354 Cr. P. C.

6. Although Section 354 (6) Cr. P. C. requires reasons to be

recorded while passing the final order under Section 125 Cr. P. C., the

provision cannot be ignored even when it comes to passing of an interim

order of maintenance under Section 125 Cr. P. C. for the reason that even

such an order must necessarily be passed upon sound reasons and those

reasons should be capable of explaining the purpose of passing the order

effective from a particular date i.e. the date of the order or the date of the

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interim maintenance application. What is applied to a final order would

also have to be applied to an interim order where law requires that

interim order must always be steeped in reason.

7. Needless to say, it is settled law that even an interim order

passed under Section 125 Cr. P. C. must show the reason or the logic

behind the order. Therefore, I am of the view that the law laid down by

the Hon’ble Apex Court would also have its application to the interim

order of maintenance passed under Section 125 Cr. P. C.

8. In the present case, no reasons are recorded by the learned

Judge of Family Court in making effective the impugned order from the

date of interim maintenance application, which is not consistent with the

legal position which is just explained. Therefore, to this extent,

modification of the impugned order would be necessary. In my

considered view, the modification of the impugned order must be made

here only, as remanding of the application to the Family Court for this

reason only may not be appropriate for it will involve delay and prospect

of pushing the respondent to the stage of vagrancy and she would be left

with no maintenance amount coming her way.

9. Accordingly, the impugned order is modified by directing

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that the interim maintenance of Rs. 1500/- per month shall be paid by the

petitioner to the respondent with effect from 8.12.2016, the date of order,

till final disposal of the petition. However, it is made clear that the

question of granting final maintenance, if any, from the date of petition

i.e. 14.8.2016 is kept open to be adjudicated on merits and the Family

Court shall not be influenced by any of the observations made on facts by

this Court.

10. In the result, writ petition is partly allowed in the above

terms. Rule is made absolute accordingly. No costs.

S. B. SHUKRE, J

joshi

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