Bombay High Court
Sou. Shobha Bhaurao Rane, Ashwin ... vs Bhaurao Son Of Gulabrao Rane on 20 March, 2003
Author: R Batta
Bench: R Batta
JUDGMENT
R.K. Batta, J.
1. The applicants sought maintenance under
Section 125 of Cr.P.C. The trial Court vide judgment
dated 03.06.1995 had granted maintenance of Rs. 300/per
month to the applicant No.1 and Rs. 150/- each per
month to the applicant Nos.2 and 3 from the date of
filing of application. This order was challenged by the
applicants as also respondent by filing separate
revisions which were disposed of vide common judgment
dated 16.03.1999. The revision filed by the applicant-
wife was dismissed, but the revision filed by the
respondent-husband was partly allowed inasmuch as the
amount of maintenance was payable from the date of
order.
2.Heard learned Advocate for the applicants
and learned Advocate for the respondent. The limited
controversy in this revision is whether the maintenance
should have been awarded from the date of order or from
the date of filing of application. The trial Court had
ordered the payment of maintenance from the date of
filing of application whereas the revisional Court
ordered it from the date of order relying upon the
judgment of Punjab and Haryana High Court in Charanjit
Singh .v. Inderjit Kaur ((1988) II D.C.M. 549).
Learned Advocate for the applicants has placed before me
a Division Bench ruling of this Court in Mangal
Pandharinath Sathe .v. Pandharinath Arjun Sathe
(reported in 1993 Mh.L.J., 788), wherein it has been
laid down that the wife would be entitled for
maintenance from the date of application, but it would
be open for the contesting respondent to prove
otherwise. Relying upon the judgment of learned Single
Judge in Sharda w/o Gunwantrao Kadu .v. Gunwantrao
Panjabrao Kadu (reported in 1989 Mh.L.J., 1031), wherein
reliance was placed on the judgment of Madhya Pradesh
High Court in Ku. Lachhmani .v. Ramu (reported in 1983
Crimes 590), it was observed that :-
"Considering the object behind
section 125, Criminal Procedure Code. I
find it difficult to take a view that the
law mandates payment of maintenance
allowance normally from the date of order
and payment from the date of application
is made only exceptional for reasons to
be recorded in writing. In this
connection, useful reference may be made
to the following apt observations - with
which I respectfully concur - in the case
of Mani vs. Esther, 1980 Kerala Law
Times 969."
The Division Bench in Mangal Pandharinath Sathe .v.
Pandharinath Arjun Sathe (supra) found that the wife was
constrained to leave the matrimonial home because of ill
treatment and was residing with her parents; she had no
source of income and she was unable to maintain herself.
The petition for maintenance was pending in the trial
Court for nearly four years. During these four years,
the wife was required to depend upon her parents for her
maintenance although the respondent has been gainfully
employed and was under obligation to maintain his wife.
It was held that the respondent having failed and
neglected to maintain his wife who was unable to
maintain herself, the wife would be entitled for
maintenance from the date of application. It was
further pointed out that it is, however, open to the
contesting respondent to prove otherwise.
3.I have also taken a similar view in Wajed
Khan s/o Maheboob Khan .v. Mohasinabi d/o Mustafa Khan
and another (reported in 2002 All MR (Cri) 1978). In
Kamalabai Khanderao Thete and another .v. Khanderao
Murlidhar Thete (reported in 1990 Mh.L.J., 108) and in
Kedari Shankarrao Shinde .v. The State of Maharashtra
and another (reported in (1992 (1) Mah.L.R., 359) also
the view taken is that as a normal rule the maintenance
should be granted from the date of application unless
there are justifiable reasons for departing from this
normal rule in exceptional circumstances due to which
the grant of maintenance may be from subsequent date.
These rulings referred to above apply with equal force
to the facts and circumstances of the case under
consideration.
4.The application in the case under
consideration was filed on 09.08.1992 and it was
disposed of after about three years. The trial Court
found that the respondent had failed and neglected to
maintain the applicants and the applicants were unable
to maintain themselves. Applicant No.3 was born on
03.12.1992. Obviously even when the applicant No.3 was
in womb, extra nourishment was required by the child in
womb and for which there would be obviously additional
expenditure incurred due to the child being in womb.
Therefore, in my opinion, in the case of all applicants
the maintenance should have been granted from the date
of application, which was granted by the trial Court.
But, the appellate Court on the strength of judgment of
Punjab and Haryana High Court changed the order of
maintenance from the date of order. The parties did not
bring to the notice of the learned Additional Sessions
Judge the position of law as laid down by the Division
Bench of this Court in Mangal Pandharinath Sathe .v.
Pandharinath Sathe (cited supra).
5.For the aforesaid reasons, the revision is
allowed. The order of the learned Additional Sessions
Judge dated 16.03.1999 is hereby set aside and the order
of J.M.F.C. dated 03.06.1995 is hereby restored.
