HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Reserved Court No. - 23 Case :- CRIMINAL REVISION No.- 2409 of 2010 Appellant :- Smt. Pooja Respondent :- State of U.P. & Another Counsel for Appellant :- Mohd. Afzal Counsel for Respondent :- Govt. Advocate Hon'ble Pramod Kumar Srivastava, J.
1.This revision has been filed against the order dated 20-08-2009 passed by Judicial Magistrate (/Civil Judge, J.D.), Nazibabad, Bijnor, in Misc. Case no. 3/ 2007 Smt. Pooja v. Amar Singh, under section 125 Cr.P.C., and judgment dated 16-03-2010 passed by Addl. Sessions JudgeBijnor, Court No.-6, in Criminal Revision No. 244/ 2009 Amar v. State of U.P. & another.
2.Applicants (present revisionists) had filed a petition u/s 125 CrPC with averment that she is legally married to OP- Amar. Sometime after marriage OP treated revisionists with cruelity and deserted them without any reason. Thereafter she is living with her parents who are unable to bear her expenses. Applicant has no source of income while the OP is carrying on business and has sufficient income to maintain them. Therefore applicant has filed the application for maintenance.
3.Opposite Party Amar had filed objection in Magistrate court refuting the allegations, and stated that his monthly income is Rs. 1500-2000 pr month. He had responsibility to maintain his parents. Applicant is working and earning lady, who had deserted him without any reason and had also filed criminal case against him. He is unable to pay maintenance amount.
4.After accepting evidences and affording opportunity of hearing learned Magistrate had allowed petition of applicant (present revisionist) by judgment dated 20-08-2009 for monthly maintenance of Rs. 1500/- to be paid from the date of application.
5.Against this impugned judgment dated 20-08-2009 the OP (present respondent no.-2 Amar Singh) had preferred Criminal Revision no. 244/ 2009 which was decided by judgment dated 16-03-2010 of Court of Addl. Sessions Judge, Court No.-6, Bijnor. By this judgment revision was partially allowed and maintenance order dated 20-08-2009 was modified to the extent that maintenance was made payable from the date of order of Magistrate (dated 20-08-2009).
6.Now it was turn of the wife- applicant Pooja to prefer present revision by which she challenged both the orders dated 20-08-2009 of Magistrate court and judgment dated 16-03-2010 of Sessions court. By present revision revisionist requested for enhancement of amount of maintenance awarded by Magistrate Court and also for staying the operation of order of Sessions Judge to the extent of modification in order of Magistrate court.
7.Learned counsel for the revisionist contended that firstly, Sessions Court below had erred by modifying the maintenance from the date of order instead of from the date of presentation of application; and secondly, in insufficient maintenance was awarded by Magistrate which should be enhanced.
8.I have considered the arguments of learned counsel for the revisionist and gone through records.
9.Section 125 (2) CrPC, which reads :
"(2) Such allowance shall be payable from the date of order, or if so ordered, from the date of application for maintenance."
10.A bare reading of this sub-section makes it clear that ordinary rule is that maintenance to wife is payable from the date of order. Exception to this ordinary rule is an order making maintenance payable from the date of application. When an exception has to be made in the ordinary rule making the maintenance payable from the date of application by an order, the order must be supported by reason or reasons.
11.In Satish Chandra Gupta vs. Amt. Aneeta & others, 1994 (31) A.C.C. 563 this court had held that - - "ordinary rule is that maintenance to wife is payable from the date of order and exception to this ordinary rule is an order making maintenance payable from the date of application and if recourse to the exception is taken the order must be supported by reasons."
12.Propriety demands that the Courts should give reasons for granting maintenance allowance from the date of application. Any direction of maintenance should generally be prospective. If direction is made retrospective in nature, the person bearing burden of it may be prejudiced unnecessarily, and without any fault. But if it appears to Magistrate that person against whom direction of maintenance is being passed had unnecessarily been delaying the proceedings of the case or misusing process of the court, then direction for maintenance from retrospective effect (from the date of application) may be passed, but that too after recording specific reasons.
13.In light of above discussion a perusal of order dated 20-08-2009 of Magistrate court reveals that no reason was discussed as to why the direction for maintenance was given from the date of order. Therefore for the reasons discussed the order of learned Addl. Sessions Judge modifying the date of maintenance form the date of application to date of order is perfectly justified.
14.In light of argument on second point regarding enhancement of amount of maintenance I have perused the records. Learned Magistrate and also the Addl. Sessions Judge had considered fact, circumstances and adduced evidences before reaching on conclusion of amount of maintenance. So far amount awarded by Magistrate court is concerned it is a finding of fact given by trial court on basis of available facts and evidences.
15.In Jagannath Choudhary & ors vs. Ramayan Singh & another, AIR 2002 S.C. 2229 Hon'ble Supreme Court had held that:
"Where the court concerned does not appear to have committed any illegality or material irregularity or impropriety in passing the impugned judgment and order, the revision cannot succeed. If the impugned order apparently is presentable, without any such infirmity which may render it completely perverse or unacceptable and when there is no failure of justice, interference cannot be had in exercise of revisional jurisdiction". - - - "It is not an appeal wherein scruitiny of evidence is possible, neither the revisional jurisdiction is open for being exercised simply by reason of the factum of another view being otherwise possible."
16.A perusal of original record of Court below shows that impugned order (of Magistrate regarding amount of maintenance) is based on such findings that may be one of the conclusions on those evidences. In such a case, applying the abovementioned legal position, there is no justification for substituting the findings of trial court by reappraisal of evidence and make interference in impugned order of maintenance from the date of the order. Therefore the argument of learned counsel for revisionist on this point is not acceptable.
17.On the basis of above discussion there is no propriety, legal or otherwise, to exercise revisional jurisdiction for interfering the impugned orders in this case. Therefore revision is dismissed.
Order Date:- 4.9.2015 SR