Delhi High Court
Vikas Bhutani vs State & Anr. on 17 May, 2019
$~20
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 17.05.2019
+ CRL.REV.P. 579/2017 & Crl.M.A.12671/2017 (stay)
VIKAS BHUTANI ..... Petitioner
versus
STATE & ANR. ..... Respondents
Advocates who appeared in this case:
For the Petitioner : Mr.Prateek Chaturvedi, Advocate
For the Respondents : Mr. Hirein Sharma, AFP for the State.
Mr. Nishant Solanki, Advocate for R-2
CORAM:-
HON'BLE MR JUSTICE SANJEEV SACHDEVA
JUDGMENT
17.05.2019
SANJEEV SACHDEVA, J. (ORAL)
1. Petitioner impugns order dated 29.05.2017 whereby interim
maintenance has been assessed by the Trial Court. On an application
filed the respondent under Section 12 of The Protection of Women
from Domestic Violence Act, 2005, an amount of Rs.40,000/- has
been fixed as interim maintenance.
2. Learned counsel for the petitioner submits that the Trial Court
has erred in not appreciating that the respondent had already filed an
application under Section 125 Cr.P.C and interim maintenance of
Rs.15,000/- was assessed in the said application and petitioner had
continued to pay the said amount of Rs.15,000/- per month.
3. It is informed that the said application under Section 125
Cr.P.C has since been withdrawn.
4. Learned counsel submits that the Trial Court further erred in
relating back the maintenance to the date of the application and not
restricting it to the date of order as respondent is already receiving
maintenance of Rs.15,000/- under orders passed in an application
under Section 125 Cr.P.C. The quantum assessed by the trial court has
not been assailed on merits.
5. The only contention of learned counsel for the petitioner is that
since the respondent was already receiving a sum of Rs.15,000/-, the
order should not have related back to the date of the application but
should have been from the date of the order.
6. Learned counsel for the respondent submits that even the
amount of Rs. 15,000/- has not been fully paid.
7. I am unable to accept the contention of the learned counsel for
the petitioner.
8. I am unable to accept the contention of the learned counsel for
the petitioner. One has to look at the nature of the maintenance
awarded.
9. The object of grant of maintenance is to afford a subsistence
allowance to the wife, who is not able to maintain herself, then the
award normally should be from the date of the application. For the
court to award maintenance from the date of the order there have to be
compelling circumstances for the court to take such a view.
Maintenance awarded to a wife is not a bounty. It is awarded to her so
that she can survive. The fact that time is spent between the date of
the application and a final adjudication and an award in favour of the
wife, does not mean that she had enough funds to maintain herself.
When the trial court comes to conclusion after trial that the wife is
entitled to an amount of maintenance the assessment in fact relates
back to the date of the application. When the assessment relates back
to the date of the application then there have to be compelling
circumstances for the trial court to restrict the award of maintenance
to a period post the date of the order.
10. This court in Rekha Sabharwal & Anr. Vs Jitender Sabharwal
2018 SCC OnLine Del 12448; Crl.M.C.3647 of 2014 has been held
that the maintenance is to relate back to the date of the application and
not from the date of the order.
11. A coordinate bench of this court in Bimla Devi Vs Shamsher
Singh (2015) 224 DLT (CN8) 8 held that "Maintenance is a right
which accrues to a wife against her husband since the inception of her
getting married with him. A moral and legal obligation and duty is
cast upon the husband to maintain his wife. The necessary corollary is
that from the time the wife starts residing separately from her
husband, she can claim maintenance from him".
12. The Supreme Court of India in Shail Kumari Devi v. Krishan
Bhagwan Pathak (2008) 9 SCC 632 held that "the High Court was
not right in holding that as a normal rule, the Magistrate should grant
maintenance only from the date of the order and not from the date of
the application for maintenance. And if he intends to pass such an
order, he is required to record reasons in support of such order.
13. Further, in Jaiminiben Hirenbhai Vyas& Anr vs Hirenbhai
Ramesh Chandra Vyas &Anr. (2015) 2 SCC 385 the Supreme Court
held that "Section 125 of the Cr.P.C., therefore, impliedly requires the
Court to consider making the order for maintenance effective from
either of the two dates, having regard to the relevant facts. For good
reason, evident from its order, the Court may choose either date. It is
neither appropriate nor desirable that a Court simply states that
maintenance should be paid from either the date of the order or the
date of the application in matters of maintenance. Thus, as per
Section 354 (6) of the Cr.P.C., the Court should record reasons in
support of the order passed by it, in both eventualities. The purpose of
the provision is to prevent vagrancy and destitution in society and the
Court must apply its mind to the options having regard to the facts of
the particular case".
14. Clearly, the maintenance is to be from the date of the
application. Further, as noticed above there is no challenge to the
quantum of maintenance assessed by the trial court.
15. Accordingly, petitioner shall pay maintenance at the rate of Rs.
40,000/- per month from the date of filing of the application i.e.
March, 2014. Petitioner would be entitled to an adjustment of the
amount that petitioner has already paid in terms of the order passed in
the application under Section 125 Cr.P.C. and the interim orders
passed by this court.
16. In view of the above, I find no merit in the petition. The petition
is accordingly dismissed. Interim order dated 08.08.2017 is vacated.
17. After the petition was dismissed, learned counsel for the
petitioner prayed for some time to take instructions - as to in how
much time petitioner would be in a position to clear the arrears.
18. At request, list for directions on 24.05.2019.
SANJEEV SACHDEVA, J
MAY 17, 2019
rk
