Dnyaneshwar S/O Kisan Motekar vs Vandana W/O Dnyaneshwar Motekar
2005 Latest Caselaw 526 Bom

JUDGMENT

A.H. Joshi, J.

1. The petitioner herein filed an application for maintenance under Section 125 of Criminal Procedure Code. She claims ill-treatment, neglect, threats of killing etc. by the husband and that her efforts to stay with the husband were rendered failure, by him. She also claimed ill-treatment from the husband on account of dowry related demand. It has to be seen from the judgment, (since copy of Written Statement is not provided in the paper book), that the petitioner has denied that the wife had any time peacefully lived with him and blamed her for being a quarrelsome woman and said that she voluntarily withdrew his company because she did not like him. He further claims that all his attempt to bring her back failed. He refused to pay separate maintenance. He further pleaded that the wife undertook the Tailoring Job and earned Rs. 500/- p.m. and that her demand for Rs. 1500 was unjustified.

2. The trial Court heard the case and granted the application partly as follows:

ORDER

"(i) Application is partly allowed.

(ii) The non-applicant is hereby directed to pay maintenance Rs. 1,000/-(Rs. one thousand) to the applicant-wife from the date of this order."

3. Wife as well as husband, who were dissatisfied with said order, filed Criminal Revision Applications. Wife's Criminal Revision Application Number is 98/2000 and husband's Criminal Revision Application Number is 99 of 2000. The wife prayed for enhancement to the tune of her prayer maintenance allowance to be paid from the date of application and expenses of litigation, while the husband claimed that the entire order be quashed and set aside.

4. The learned Ad hoc Additional Sessions Judge heard and decided the case by his judgment and order dated 30-8-2003 and partly allowed the Revision Application of the wife and awarded her maintenance allowance from the date of filing of application, but did not alter the amount, while dismissed the husband's Revision application.

5. The husband is before this Court in the present Criminal Writ Petition. The grounds of challenge which are raised can be summarised to the points.

(i)    That the order is perverse.
 

(ii)   It is unreasonable being without considering the wife's income.
 

(iii) that it is wrong because maintenance is ordered from the date of application. 
 

(iv) The   order   is   passed   in   excess   of jurisdiction   and   causing miscarriage of justice.
 

6. Upon hearing the learned Advocate for the petitioner; on perusal of the petition, and the grounds which run almost ?>Vi pages, the language used for criticising and challenging the judgment delivered by Sessions Court, can be denoted as full of adjectives. These grounds however, do not without demonstrating as to how those do apply to the judgment in question.

The judgment being "perverse, in excess of jurisdiction or leading to miscarriage of justice", all are the grounds which ought to be demonstrated from the facts. Even the reasons as to why the Revisional Court ought not to have granted the maintenance from the date of application was liable to be demonstrated by placing on record the entire proceedings and evidence in order to bring home point that the delays were owing to the wife's act and not on the part of the husband or by framing any specific plea. No effort of this type is made.

7. What is seen from the records which the Court has to search out is as follows :

That the marriage is of 1997. The application for maintenance is of 24-2-1999, copy of the Written Statement is not filed on record, however, it is claimed that the Written Statement is filed on 4-11-1999. Though the wife's statement is recorded, typed copy of deposition which is placed on record does not disclose the date of recording of her deposition. It is also not seen as to when other witnesses were examined or when the husband's evidence was recorded. The memo of revision application or synopsis also does not give all these dates or other details due to which the petitioner would have been in a position as to demonstrate as to whom the delays are attributable.

8. The learned Advocate for the petitioner placed reliance on reported judgment of this Court reported in 1996(4) Mh.L.J. 289, Akbar Khan s/o Anwar Khan v. Rukhaiya Khatoon d/o Late Abdul.

On perusal of this Judgment, it becomes difficult for the Court to persuade itself to read the said reported judgment in favour of the petitioner. It is seen that this Court has taken a categorical view based on earlier reported judgment in Kamalabai Thete's case reported in 7990 Mh.L.J. 109 in favour of granting the maintenance from the date of application. In Kamalabai Thete's case referred to in Akbar Khan's case, this Court has granted the maintenance from 1st May, 1982 i.e. about 17 days after the date of filing of the application. This Court took a very categorical view in Kamlabai's case that:

"10...The normal rule is to grant maintenance from the date of the application, and not from the date of the order, it is open to a Magistrate to grant maintenance with effect from subsequent date,"

9. What is seen even from the plain reading of Section 125 of Criminal Procedure Code, is that, it was amended by Act No. 50/2001 and second and third proviso to Sub-section (1) of Section 125 of Criminal Procedure Code were added while corresponding amendment in sub-section (2) was made.

After Section 125 was amended in 1982, the provision is made for interim maintenance and litigation expenses, and third proviso to Section 125(1) lays down a time limit of 60 days from the date of service of notice of such application. This amendment and consequential amendment in Sub-section (2) of Section 125 clearly governs the interpretation of Sub-section (2) of Section 125. Now it is amply clear that intention of legislature is to make the payment of maintenance allowance from earliest possible date relating to the date of filing. Thus, upon harmonious reading of 2nd and 3rd proviso of sub-section (1) with Sub-section (2) of Section 125, it is abundantly clear that if the Magistrate fails to specify the date from which the amount of maintenance allowance, it shall be payable from the date of order and not otherwise. Award of maintenance from the date of application, therefore, has to be as a matter of rule, however, the Magistrate would certainly have powers to defer the date of award of maintenance and make it from the date of order if the Magistrate reaches a conclusion that on facts the applicant ought to be granted the maintenance from the date of order only for reasons to be recorded for such difference of date.

10. The scheme of Section 125 of Criminal Procedure Code is a beneficiary legislation and is intended to remedy given mischief and said scheme of remedying cannot be ignored while interpreting the said section. Thus, it will have to be held that the Scheme of Sub-section (2) of Section 125 of Criminal Procedure Code presupposes grant of maintenance from the date of application. Absence of mentioning the date would lead to the order being construed to be granting the maintenance from the date of order. While it would be possible and permissible for the Magistrate to restrict the maintenance from the date of order for the reasons to be recorded. This clarification appears to this Court to be necessary in view of the fact that in spite of reported Judgment of this Court of 1996, still an effort was made to pursue that the section could be read otherwise namely that the maintenance ought to be granted from the date of order as a matter of rule and granting it from the date of application would be an exception.

11. In the result, the petition fails. Rule is liable to be discharged.

12. Initially the respondent was unrepresented. The amount which was ordered to be deposited by this Court as a condition for stay is still lying in this Court. The amount in deposit be paid to the original applicant by transfer of the said amount to the Court of Judicial Magistrate First Class, Washim. Since the respondent's representation is caused at the last movement it shall suffice it the token cost of Rs. 500/- is awarded.

13. Hence, following order is passed.

(1)      Rule discharged.
 

(2)      Amount of Rs. 20,000/- deposited in this Court by petitioner be transferred to trial Court for payment to original applicant.
 

(3)      Applicant to pay costs of this application which shall be Rs. 500/-, which be deposited by him in trial Court, and be paid to original applicant.