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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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