Smt. Sudha Devi & Another vs State Of U.P. & Another
2014 Latest Caselaw 425 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 14							AFR
 

 
Case :- CRIMINAL REVISION No. - 1387 of 2006
 

 
Revisionist :- Smt. Sudha Devi & Another
 
Opposite Party :- State Of U.P. & Another
 
Counsel for Revisionist :- Shyam Sundar Tripathy
 
Counsel for Opposite Party :- Govt. Advocate,P.K. Rao
 

 
Hon'ble Karuna Nand Bajpayee,J.

This criminal revision has been preferred against the judgment and order dated 9.1.2006, passed by Additional District & Sessions Judge, F.T.C.(1), Ghazipur in Criminal Revision No.15 of 2005, Anand Prakash Verma Vs. State of U.P. & others, whereby the modification in the lower court's order was made to the effect that the amount of maintenance was to to be paid from the date of application instead of the date of judgement.

List has been revised. Counsel for the revisionists is present, but none has appeared to represent the opposite party no.2, despite the repeated calls.

This is an old revision of 2006, and this Court does not find any reason to further procrastinate the matter, therefore, this Court deems it fit to proceed with the hearing of revision with the assistance of learned A.G.A. who is present in the Court.

Shorn of unnecessary details, the relevant facts which transpired from the perusal of record are like this.

Smt. Sudha Devi, the revisionist, who is the wife of Anand Prakash, opposite party no.2, moved an application under Section 125 of Cr.P.C., making allegations of demand of dowry and cruel treatment having been meted out to her, as a result of its non fulfillment. The allegations were not only against the husband, but, also other in-laws. It was further alleged that at some stage of the marital life she was thrown out of the house along with his minor child. She claimed to have been leading a deserted life of a destitute woman, unable to maintain herself and her child, while her husband had sufficient resources and income who was deliberately neglecting and refusing to maintain his wife. It appears that, after following due procedure the initial court of the Magistrate fixed up an amount of Rs.450/- per month with regard to wife while Rs.300/- per month was fixed up as an amount of maintenance with regard to her minor child from the date of the application. Feeling aggrieved from the aforesaid order, it appears that a revision was filed in the court of Sessions Judge. The revisional court allowed the revision in part and passed the order directing that the amount of maintenance was to be given from the date of order and not from the date of application. Some order with regard to the adjustment of the interim maintenance amount was also made.

The central hub of the contention raised by the counsel for the revisionists is that the impugned order passed by the revisional court was in excess of its jurisdiction or at any rate in deviation from the accepted convention whereby due regard is always paid to the judicial discretion which the initial court of Magistrate had exercised in order to fix up the amount either from the date of the order or from the date of the application. It has been submitted that the entire order passed by the initial court had been affirmed with regard to all the findings given on different issues which were framed by it. The only ground on the basis of which the order passed by the Magistrate has been modified, was that in view of the revisional court it was the legal requirement for the court of Magistrate to assign reasons as to why he thought it fit to fix up the amount of maintenance to be paid from the date of the institution of the suit, rather than from the date of the order or judgment. As the initial order did not contain reasons by way of which it may be deciphered as to why he did adopt the course which he did, therefore, the absence of the reasons would vitiate the validity of the order. The submission of the counsel is that the view taken by the revisional court is itself a wrong view and is in the teeth of the Division Bench judgment given by this Court in the case of Jagat Narain Vs. Sessions Judge, Mainpuri, ACC 1998 (36), P.282, wherein it was held that the absence of reasons will not automatically invalidate the order as it was not mandatory. It has been contended that as the aforesaid case law was never considered by the court below, therefore, the view taken by the court of revision is erroneous and the judgment given by the court of revision is, therefore, liable to be set aside. It has also been submitted that the provisions of Section 125 of Cr.P.C. are in the nature of beneficial legislation and the court below should also have taken the plight of the destitute woman into account, but instead of adopting a humanitarian view a very strict technical view was adopted which has defeated the ends of justice instead of promoting the same.

I have cogitated upon the submissions made at the bar and had the occasion to go through the entire record as well as the impugned order.

It is apparent from the perusal of the impugned order, that the court of revision has affirmed the findings given by the lower court that the revisionist Smt. Sudha Devi was the legally wedded wife of the opposite party no.2, Anand Prakash Sharma. The finding given by the court below on issue no.2 was also accepted, whereby it was held that the revisionist had sufficient cause not to live with her husband as she sensed danger to her life from the side of her in-laws. Another finding given by the lower court on issue no.3, that the revisionist was unable to maintain herself and her child has also been accepted as such. The court of revision also did not have any quarrel with the findings given by the initial court, that the husband-opposite party no.2 was capable and had sufficient means to maintain his wife and child. In fact, the findings of the lower court that the wife was very much entitled to get maintenance has also not been disputed in the impugned order. It appears that some cases were cited on behalf of the opposite party no.2, in which a view was expressed that ordinary course to be adopted by the courts was that the amount of maintenance ought to be fixed from the date of the judgment or order, and if in certain circumstances the Magistrate deems it fit to direct the payment of maintenance of amount from the date of the institution of the suit, then this would be an exceptional course and specific reasons must be assigned as to why the court is adopting the extra ordinary course. The view as was expressed was to the effect in those cases that the absence of reasons would cut out the very root of the validity or legitimacy of the order. Placing reliance upon the same case law, the court of revision upset the finding given by the court below, and as specific reasons were found wanting in the Magistrate's order the court of revision modified the same, and directed that the amount of maintenance ought to be paid from the date of judgment.

I have gone through the case law relied upon by the court of revision and find that all the cases which have been cited by the revisional court are by a Bench of Single Judge of this Court. The judgment relied upon by the counsel for the revisionist is given by the Division Bench and as the same has not been considered in either of the cases which have been relied upon, the order of the revisional court becomes liable to be set aside. It may be relevant to cast a fleeting glance upon some of the cases which influenced the view of the revisional court to the detriment of the wife..

In the case of Samaydin Vs. State of U.P. & another, 2001 (1) A.Cr.R. 138, Hon'ble S. K. Agarwal, J., took the view in para 4 of the judgment which reads as follows :-

"4. From an examination of the language of this sub-section, it clearly follows that in normal circumstances, the maintenance must be granted from the date of the order. In only extraordinary circumstances, it may also be ordered to be paid from the date of application for maintenance. It is thus clear that there must be a discussion of such circumstances which warrant the Court to allow it from the date of application. No. other inference is permissible from the language of sub-section (2). One such extraordinary circumstance may be dilatory tactics adhered to by the husband in the disposal of the proceeding. The other one may be untold cruelty practised against his wife. No extensive grounds can be formulated for doing. The learned Magistrate has not given any reason for allowing maintenance from the date of the application. No where in judgment before delivering the operative portion, he had shown any such inclination. As a matter of fact, the Court has taken the husband by surprise by making such a direction for the first time in the operative portion of the judgment. I am, under the circumstances, inclined to accept this contention and modify the order and make it payable from the date of order. The maintenance allowance shall be payable from the date of the order."

In another case of Islam alias Islamuddin Vs. State of U.P. & others, 2001(2) A.Cr.R. 1147, the same Hon'ble Judge again took the same view and the court was pleased to observe as follows :

"So far as this girl is concerned, the only challenge thrown by the learned counsel for the petitioner to the grant of maintenance to her is that this maintenance should have been granted from the date of the order and not from the date of the application. The reason behind this submission is that the law does not permit to do so unless special reasons are recorded by the court below. I have gone through the entire judgment but I am unable to find any special reason having been recorded by the trial court. Even the judgment in revision does not contain any such reason".

Another case relied upon by the court of revision is that of Shiv Nath Vs. State of U.P & others., 1993 (3) A.Cr.R. 2744, wherein another Single Judge of this Court had the occasion to observe as follows :-

"3. To appreciate the argument of Sri Tripathi the impugned order dated January 28, 1998 passed by the Judge, Family Court, Gorakhpur in Case No. 10 of 1996, has been carefully perused. The learned Judge, Family Court, has not given any reason why he has directed the maintenance to be paid from the date of application. The provisions of law under Section 125(2) Cr.P.C. and the Court's view in a number of cases is that without giving reasons maintenance allowance should not be allowed from the date of application.

4. Since the learned Judge, Family Court, Gorakhpur, has not given any reason for allowing the maintenance from the date of application the argument of Sri Tripathi on this score is sound and accepted. The impugned order is modified to that extent. The maintenance allowance directed to be paid from the date of application is modified and it should be paid from the date of order, i.e. from 28.1.1998. With this modification in the impugned order the revision petition is partly allowed. The rest portion of the impugned order is upheld."

It may be observed that in none of these cases any authority of the Apex Court or the authority of the larger Bench of this Court has been either referred to or relied upon. The views expressed in the aforesaid decisions were the individual views of the Hon'ble Judges, which they were pleased to hold. Now when the decision given by this Court in the case of Jagat Narain Vs. Sessions Judge, Mainpuri & others is looked into, it conclusively answers the controversy involved in the matter. It is an elaborate judgment wherein umpteen authorities of different High Courts of India have been duly considered and have been expatiated upon. The larger Bench considered the decision given in the case of Lokesh v. Lekho, 1995 Cr.L.J. 1661 of Kerala High Court in which the view was taken to the effect that recording reasons while granting maintenance was not needed. Similar view of the Bombay High Court taken in the case of Managala v. Pandari Nath, 1993 Cr.L.J. 2758 was also duly considered. The Division Bench decision of Punjab and Haryana High Court in Gum Pratap Singh v. Satwant Kaur, 1991 (1) R.C.R. 40 and the decision of the Delhi High Court given in Smt. Raj Kumar v. Dev Raj Vij, 1984 Cr.L.J. (NOC) 206 (Delhi), were also duly considered by the larger Bench of this Court. After vetting through entire case law as mentioned above and many more which need not to be reproduced here, the Division Bench proceeded to observe as follows :-

"19. Agreeing with the views taken by Kerala High Court, Bombay High Court, Andhra Pradesh High Court, Punjab and Haryana High Court, and Delhi High Court, referred to in paragraph 16 referred to as above, in our considered view Section 125(2) of the Code is not mandatory in the sense that the Magistrate while granting maintenance from the date of the application of the destitute wife must assign reasons for doing so though it would have been better if he does so. Non-assigning of the reasons by itself will not vitiate his order and give a handle to the Revisional Court to set aside such an order on this ground alone. Revisional jurisdiction is a discretionary remedy and if the materials are on the record justifying grant of maintenance from the date of application filed by the wife or on behalf of the children it will refuse to exercise its discretion in favour of the revisionist-husband or in a petition filed by the husband under Section 482 of the Code of Criminal Procedure."

Now it may not be out of place to extract the relevant section of 125(2) of Cr.P.C. herein below :-

"125. Order for maintenance of wives, children and parents.-(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."

As is obvious that the aforesaid section does not contain any such requirement that the reasons ought to be accorded or assigned by the court while directing the maintenance to be paid from the date of application, there is no reason to read in the section something which is not written there. At several places in several sections of the Code of Criminal Procedure there is a statutory mandate to record the reasons while adopting a particular course which a court may deem fit to adopt. There is no reason to attribute negligence or ignorance to the wisdom of the legislature. If the legislation in its wisdom has not chosen to lay down condition or has not chosen to mandate a certain course or modality to be adopted while doing something then the language of the statutes ought not to be strained or tortured to give out to a particular meaning or a particular interpretation. Such a construction will be all the more bad if it leads to the disadvantage of one for whose benefit the legislation has been brought in existence and the statute enacted. The very object of introducing Section 125 of Cr.P.C. has been to save the vagrancy of destitute wives who had been suffering neglect at the hands of their husbands who were under the legal as well as moral obligation to maintain their wives and children. It appears that the two phrases used in Section 125 of Cr.P.C. that, "from the date of order, or, if so ordered from the date of the application", might have been aimed to indicate a guiding presumption for those cases where it may not have been specifically mentioned in the judgment as to from which date the amount of maintenance shall be payable. If in a given case the court simply passes the order that certain amount is to be paid to the wife and it has not been made explicit or express in the order as to from which date it shall be payable it shall be then presumed that the husband shall be liable to pay the amount of maintenance from the date of the order. But, if the court specifically orders the payment from the date of the order, there is no need entering in any presumption. That's why the legislation in its wisdom seems to have used the particular phraseology in the sub-section which it did. If a court wants to make the husband liable to pay the amount of maintenance from the date of institution of the suit it is always open for the court to do so and it will have to make an order to that effect also. The use of the word, "if so ordered" does not indicate anything more. To impute any interpretation to the sub-section which makes it a legal requirement to assign reasons before making an order in the event of fixing up the amount of maintenance from the date of application is, in the view of this Court, not a very sound interpretation. With greatest respect to the views expressed by the Hon'ble Judges in the aforesaid judgments, this Court has not been able to persuade itself to agree with the same. The Division Bench decision given in Jagat Narain's case too has a binding effect on the Benches of lesser strength, and even in that view of the matter also this Court adopts the same view.

In the light of the aforesaid discussions on the points of law, it is very much clear that the impugned judgment passed by the revisional court is liable to be set aside.

The revision is allowed. The impugned order is hereby set aside.

The initial order passed by the 7th Additional Civil Judge(J.D.), Ghazipur dated 17.2.2005 shall be given its full effect.

Let this order be conveyed to both the courts below.

Order Date :- 2.4.2014

Mustaqeem.