Uttarakhand High Court
Uzma And Another ... vs Mohd. Rizwan And Another on 16 November, 2022
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Criminal Revision No. 262 of 2021
Uzma and Another ....Revisionists
Vs.
Mohd. Rizwan and Another ..... Respondents
Presents:-
Mr. Mohd. Matlub, Advocate for the revisionist.
Mr. B.P.S. Mer, Standing Counsel for the State.
Mr. Mohd. Umar, Advocate for the private respondents.
JUDGMENT
Hon'ble Ravindra Maithani, J. (Oral)
The challenge in this revision is made to
the order dated 04.09.2021, passed in Criminal Misc.
Case No. 75 of 2020, Smt. Uzma Vs. Rizwan, by the
court of Family Judge, Nainital, District Nainital ("the
case"). By this order, the private respondent has been
directed to pay Rs.8,000/- per month as interim
maintenance to the revisionist from the date of the
order.
2. Heard learned counsel for the revisionist
and perused the record.
3. Learned counsel for the revisionists would
raise only one question. According to him, the amount of
maintenance ought to have been awarded from the date
of the application and not from the date of order. He
would refer to the judgment in the case of Rajnesh Vs.
Neha and Another (2021) 2 SCC 324. In paragraph 131
of it, the Hon'ble Supreme Court clarified that the
maintenance in all cases will be awarded from the date
of filing of the application for maintenance. In fact, the
Hon'ble Supreme Court took into consideration the
provisions of various statutes entitling maintenance and
discretion vesting upon the court to grant maintenance
either from the date of filing of the application or from
the date of order. In Para 109, of it, the Hon'ble Supreme
Court observed as hereunder:-
"109. The judgments hereinabove reveal
the divergent views of different High Courts on the
date from which maintenance must be awarded.
Even though a judicial discretion is conferred upon
the court to grant maintenance either from the date
of application or from the date of the order in Section
125(2) CrPC, it would be appropriate to grant
maintenance from the date of application in all cases,
including Section 125 CrPC. In the practical working
of the provisions relating to maintenance, we find
that there is significant delay in disposal of the
applications for interim maintenance for years on
end. It would therefore be in the interests of justice
and fair play that maintenance is awarded from the
date of the application."
4. On the other hand, learned counsel for the
private respondent would submit that the application for
maintenance was filed by the revisionist on 18.08.2020.
The judgment in the case of Rajnesh (supra) was
subsequent to it. Therefore, it will not apply.
5. In fact, in the case of Rajnesh (supra), the
court as such did not declare any new law. The Court
clarified the legal position. Section 126(2) of the Code of
Criminal Procedure, 1973, vests discretion with the
Court to direct payment of maintenance either from the
date of order or from the date of filing of the application.
In the impugned order, no reason has been assigned as
to why the maintenance is granted from the date of order
and not from the date of filing of the application.
6. The record reveals that the revisionists had
filed an application under Section 125 of the Code
seeking maintenance on 18.08.2020. The impugned
order granting interim maintenance was passed on
04.09.2021. Section 126 of the Code vests discretion in
the Court to grant maintenance either from the date of
order or from the date of application. But, then, there
should be some reasons for that. In case, order for such
maintenance is given from the date of order, a person
against whom such application for maintenance is filed,
may be benefitted by delay in disposal of such
applications. But, it is not the intention of law. In the
case of Rajnesh (supra), the Hon'ble Supreme Court has
adverted to this issue and clarified that the maintenance
should be awarded from the date of filing of the
application.
7. In view of it, this Court is of the view that
the order is not in accordance with law. It requires
modification.
8. The revision is allowed.
9. The interim maintenance shall be paid by
the private respondent to the revisionists from the date
of filing of the application under Section 125 of the Code.
10. The impugned order is modified to the
extent, as indicated above.
(Ravindra Maithani, J.)
16.11.2022
Ravi Bisht
