Durg Vijai Yadav vs State Of U.P. & Another
2012 Latest Caselaw 3815 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 25
 

 
Case :- CRIMINAL REVISION No. - 627 of 2012
 

 
Petitioner :- Durg Vijai Yadav
 
Respondent :- State Of U.P. & Another
 
Petitioner Counsel :- Narendra Kumar,D.N. Yadav
 
Respondent Counsel :- Govt. Advocate,Kamal Kumar Singh
 

 
Hon'ble Mrs. Jayashree Tiwari,J.

Case called out in the revised list.

Learned counsel for the revisionist and the earned A.G.A. are present.

Heard.

The present criminal revision has been filed against the order passed by the learned Judge, Family Court, Azamgarh whereby awarding the maintenance allowance to the tune of Rs.500/- per month to the wife from the date of the filing of the application.

It is contended in the revision that the order passed by the learned Family Judge is illegal, improper and not sustainable in the eye of law; the judgment is perverse and against the material evidence on record; the revisionist is still ready to keep the opposite party no.2 as his wife but she is not willing to live with the revisionist; the findings recorded by the learned Judge, Family Court about the performance of second marriage is erroneous; the revisionist filed a suit against the opposite party under section 9 of the Hindu Marriage Act but the opposite party is not cooperating in the said suit; the claim of the opposite party was rightly rejected by the learned Judge, Family Court vide order dated 19.10.2004, but in revision the matter was remanded and hence he passed the impugned order.

During the course of arguments the learned counsel for the revisionist emphasized on the point that award of maintenance has been granted from the date of the application and the learned Judge has not given any reason for the same and that the grounds taken in the revision are general in nature and no specific ground has been taken assailing the order passed by the learned Judge. In this regard it is contended on behalf of the learned counsel for the revisionist that the learned lower court while awarding the maintenance allowance from the date of application ought to have recorded reasons therefor. He relied upon a ruling of this Court laid down in the case of Raju vs. State of U.P. and others, reported in [2010 (69) ACC 467] wherein the learned Judge has allowed the applilcation under section 125 Cr.P.C. and directed the revisionist to pay Rs.500/- as maintenance allowance from the date of application; no reasons recorded by Magistrate as to under what circumstances the maintenance allowance is being ordered to be paid from the date of application though the learned Magistrate should have allowed the maintenance from the date of its order. In yet another ruling laid down in the case of Masood Ahmad Khan @ Afaq v. State of U.P. and another, reported in [2010 (69) ACC 1022] this High Court has held that the learned lower court allowed Rs.5000/- per month as maintenance allowance from the date of the application; order modified to the extent that the date of payment of maintenance shall be 1.1.2005 instead of 24.8.2002. In this case the Hon'ble High Court has relied upon the judgment of Apex Court rendered in the case of Shail Kumari Devi and another v. Krishan Bhagwan Pathak @ Kishun B. Pathak wherein the Apex Court has held as under:

"We, therefore, hold that while deciding an application under section 125 of the Code, a Magistrate is required to record reasons for granting or refusing to grant maintenance to wives, children or parents. 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 (1) of section 125 of the Code in absence of express provision to that effect."

In yet another judgment of this Court pronounced in Criminal Misc. Application No.1497 of 1999, Samaydin v. State of U.P. and another, decided on 4.1.2001, it has been held by this Court that the court below while granting maintenance allowance under section 125, if allowed from the date of application for extra ordinary circumstances, must record reasons therefor. This court in absence of reasons have modified the order and granted maintenance allowance from the date of the order.

In this regard it would be appropriate to go through the provisions of section 125 of the Cr.P.C. which is extracted as follows:

"125. Order for maintenance of wives, children and parents.- (1) If any person having sufficient means neglects or refuses to maintain-

(a) his wife, unable to maintain herself, or

(b) his legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or

(c) his legitimate or illegitimate child (not being a married daughter) who has attained majority, where such child is, by reason of any physical or mental abnormality or injury unable to maintain itself, or

(d) his father or mother, unable to maintain himself or herself,

a Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, father or mother, at such monthly rate, as such magistrate thinks fit, and pay the same to such person as the Magistrate may from time to time direct:

................................................................................................................................................

(2) 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.

In the light of the aforesaid provision, it will be expedient to go through the order passed by the learned lower court. The learned lower court holding that the opposite party is legally wedded wife of the revisionist and she is living separately from the revisionist for reasonable cause that he had contracted second marriage and he is neglecting or refusing to maintain his wife opposite party who had no means to maintain herself and as such awarded maintenance allowance of Rs.500/- per month and directed the revisionist to pay the maintenance allowance of Rs.500/- per month from the date of the application to the wife. The learned lower court in its order has specifically mentioned that from the evidence on record it is clear that the applicant wife has not contracted the second marriage. It is also clear that both the husband and the wife are not living separately by mutual consent. The applicant wife is the married wife of the revisionist/opposite party whereas the opposite party had contracted the second marriage and hence it cannot be said that the applicant wife is living separately without any reasonable cause. The revisionist opposite party had sufficient means to maintain his wife applicant but since he had refused to maintain his wife, he is liable to maintain his wife and therefore the learned court below had recorded a finding that the wife is entitled for maintenance allowance and considering the circumstances, the learned Judge, Family Court had awarded Rs.500/- as maintenance allowance to the wife from the date of the application.

The ruling cited above of the Hon'ble Apex Court also corroborates the same thing. The quoted ruling clearly shows that for awarding the maintenance from the date of application, express orders are necessary and no special reasons however, are required to be recorded by the court. In the instant case, the learned lower court has given cogent reasons also for awarding the maintenance allowance from the date of the application which are express order in itself.

From the perusal of the order passed by the learned Judge, Family Court, I do not find that there is any illegality or irregularity in the order so passed. The revision, therefore, appears to have no force in itself and it is liable to be dismissed.

Accordingly, the revision is dismissed.

Order Date :- 29.8.2012

SC