Khanu Lalchandani vs Meenu Lalchandani
1995 Latest Caselaw 922 Del

JUDGMENT

A.K. Srivastava, J.

(1) This is a petition under Section 482 of the Code of Criminal Procedure (for short Code) against the order/judgment passed by Mr. B.S. Chaudhry, Additional Sessions Judge, Delhi in Criminal Revision No.50 of 1994 on 7.2.1995. The prayer in this petition is that the aforesaid judgment/order which has confirmed the order dated 12.7.1994 passed by the Metropolitan Magistrate be set aside.

(2) The petitioner is the husband and the respondent is the wife. It is interesting to note that this petition has been filed by the husband when the learned magistrate did not grant any interim maintenance to the wife and her revision against the order of the magistrate has been dismissed by the learned Additional Sessions Judge under the impugned order and resultantly the respondent (wife) has not received any relief either from the magistrate or from the Additional Sessions Judge (the revisional court in this matter). Still the petitioner wants setting aside of the order dated 7.2.1995 passed by the Additional Sessions Judge in Criminal Revision Petition No.50 of 1994.

(3) The facts of this case appear to be that the respondent along with her children, namely, Ms. Jyoti, Ms. Mukta, Shivdeep and Ms. Sharmila filed a petition before the concerned Metropolitan Magistrate for maintenance under Section 125 of th

(4) The grievance boiled down by the petitioner's counsel is that since the wife of the petitioner had enough money to suppor the children, no interim maintenance should have been granted and that even if the maintenance was granted it should have been from the date of the order i.e. 12.7.1994 and not from the date of the petition i.e. 5.3.1991. The petitioner thus challenges the grant of maintenance to Ms. Mukta and Shivdeep but he has not cared to make them parties to this petition as respondents.

(5) So far as the first plea is concerned that no maintenance could have been granted I am of the view that the petition is not proper because the relief prayed here, if granted, would be adverse to Ms. Mukta and Shivdeep who are not party to this petition. Therefore, no relief should be granted against Ms.Mukta and Shivdeep.

(6) So far as the second plea is concerned there also I am not inclined to grant any relief to the petitioner in this petition on the same ground as is stated above. But in view of the fact that a legal plea has been raised whether maintenance can be granted from the date of petition without a speaking order I am inclined to give decision on this legal plea.

(7) The the short legal question is whether maintenance under Section 125 of the Code can be granted from the date of the petition without a speaking order and if it is granted without a speaking order whether it is illegal. The learned counsel for the petitioner relies on Ii (1992) Dmc 328 (DB), Qamruddin v. Rashida. This is a Division Bench judgment of Rajasthan High Court wherein it was observed as follows: "HELD that a bare reading of Section 125 Cr.P.C. and more so Sub-section 2 will show that the allowance shall be payable from the date of the order, or, if so ordered, from the date of the application for maintenance. Therefore, if the Court feels that the amount of maintenance should be ordered from the date of application there should be some reasons for ordering so."

(8) The other ruling on which the learned counsel for the petitioner relies is 1987 Crl.L.J. 1955, Rameshwar v. Ramibai. This judgment is of Madhya Pradesh High Court wherein the following was observed at page 1987: "THE learned Magistrate has made the allowance of maintenance payable from the date of the application and this has been maintained by the impugned order. In the decision in Mohd. Inayatulla Khan's case (supra) it has been held that the general rule is to order payment of maintenance from the date of the order and deviation from the rule and making allowance payable from the date of the application without recording reasons for so doing introduces arbitrariness in the order. In view of the decision and on the facts of the case that the arrears pertain to a long period of time, I am of opinion that the impugned order needs to be modified to the extent that the payment of maintenance allowance shall be from 25.9.1981 which is the date of the Magristrate's order."

(9) On the other hand, there are several rulings in which it has been observed that if under Section 125 Cr.P.C. the magistrate grants maintenance from the date of the petition it is not mandatory that he should give special reasons for doing so and that in the absence of a speaking order the order of maintenance will not be legally bad. They are as follows:

1.1980 Klt 969, Mani v. Esther. This is a judgment of the Kerala High Court in which it was observed as follows: "THERE is no provision in Chapter Ix of the Code, which takes away the power of the court to direct payment of maintenance from the date of the petition; but, on the other hand such power is recognised or reserved under S.125(2) of the Code. A court may omit to mention date from which the maintenance order is to take effect. The court may specifically direct the order to take effect from the date of the petition. The court may also direct order to take effect from the date of the order. Sub- section (2).of S.125 of the Code means only that where court has not specifically directed that the order shall take effect from the date of the petition or where the order is silent on the point, it shall be payable from the date of the order. It cannot be said that whenever a court gives a specific direction either way, it must be supported by reasons recorded in writing. It is open to the court to take either view and incorporate it in the judgment."

2.II (1988) Dmc 10, Sou. Sharda v. Gunwantrao. This is a judgment of the Bombay High Court. In this judgment the learned Judge did not agree with the proposition that in case the court concerned grants allowance from the date of application such order would be bad unless he gives reasons to support the same.

3.1991 (2) CLJ(C, Cr & Rev.) 681, Paramjit Kaur v. Surinder Singh,. This is a judgment of Punjab & Haryana High Court. In this case the learned Judge has relied on 1990(2) Clr 650 (at page 663), Gurpartap Singh v. Smt. Satwant Kaur & Anr, in which it was held that it was not obligatory for Magistrate to give Special reasons for granting interim maintenance under Section 125 of the Code from the date of application which was purely within his discretion.

4.1990 Crl.L.J. 1880, K.Sivaram v. K. Mangalamba and others. This is a judgment of the Andhra Pradesh High Court. In this case it was observed that since there is no mention specifically in Section 125(2) Cr.P.C. that the court must give special reasons for awarding maintenance from the date of the petition, there is no necessity to give special reasons while doing so.

(10) I have carefully considered the issue involved and I am of the opinion that if without recording any reasons, maintenance is granted under Section 125 of the Code from the date of the application the same would not be bad in law. The language of sub-section (2) of Section 125 of the Code does not require the magistrate to give reasons as to why he is granting maintenance from the date of the application. The relevant provision reads as follows: "125(2)- such allowance shall be payable from the date of the order, or, if so ordered, from the date of the application for maintenance".

(11) It may be pointed out that in the Code there are several sections which make it obligatory for the courts to record reasons while passing an order. These sections have words like "shall record his reasons for doing so", "for reasons to be recorded", "except for reasons to be recorded in writing", "special reasons for such sentences" and "it shall record in its judgment the special reasons for not having done so". For illustration, the provisions of Sections 167(3), 309, 354(3) and 361 may be seen. Section 125 of the Code does not contain any such words. Therefore, if in other sections of the Code the Legislature has mandated the courts to record reasons or special reasons and the Legislature chose not to give such mandate to the magistrate under sub-section (2) of Section 125 of the Code then it may reasonably be interpreted that the Legislature did not have the intention that the magistrate while granting maintenance under Section 125 of the Code from the date of the application shall give reasons for doing so.

(12) Thus, sub-section (2) of Section 125 of the Code, in my view, should be interpreted to mean that only where the order for grant of maintenance does not mention as to from which date the same is payable, the same shall be payable from the date of the order and that it gives unfettered discretion to the magistrate to direct payment of maintenance from the date of the application.

(13) Morever, a liberal interpretation should be given. The underlying idea of the provision of Section 125 of the Code is that the category of persons mentioned therein are to be paid maintenance if they are unable to maintain themselves. Of course, till they move to the court they cannot be granted maintenance but when they do move, payment of their maintenance, if admissible, should not be delayed due to delay in the proceedings of the Court. Basically they are destitute and they need to be maintained. If there is delay in the proceedings how they are going to maintain themselves, may be they borrow from others. Since, this provision of the Code is a remedial one, interpretation of same should be liberal in favor of the persons for whose benefit this provision has been made. The spirit of the provisions of Section 125 of the Code has also to be taken into consideration. Morever, in view of Section 465 of the Code mere technicalities in respect of the matter which are not vital or important or significant in a trial or proceeding should not be allowed to frustrate the ends of justice.

(14) Therefore, even if the Magistrate while granting maintenance from the date of the application does not give reasons for doing so the order should not be considered bad in law.

(15) In view of above the petition fails and is consequently dismissed.