The court applied the legal provision under Sec. 125 of the Code of Criminal Procedure (Cr.P.C.) and the decision of the Honble Supreme Court to determine the quantum of maintenance and the effective date from which it should be paid, emphasizing the need for clear evidence to prove the financial capacity of the respondent.

ORDER :

Dissatisfied with the quantum of maintenance awarded by the Family Court, Bangalore, the petitioner / wife has approached this Court under sec. 19(4) of the Family Courts Act, 1984.

Heard the learned counsel for petitioner and the learned counsel for respondent.

2(i) Learned counsel for petitioner has urged two fold contentions. Firstly, the evidence adduced by the petitioner having not been controverted by the respondent and no contra evidence having been produced to disprove the documents produced by the petitioner, the Trial Court ought to have granted maintenance as claimed by the petitioner. Secondly, it is contended that the Trial Court has directed maintenance only from the date of order, when in fact the circumstances of the case indicate that, during the pendency of the proceedings, the respondent did not pay any interim maintenance and under the said circumstances, the impugned order warrants interference by this Court.

2(ii) In support of the above submissions, learned counsel for petitioner has placed reliance on the decision of the Honble Supreme Court in JAIMINIBEN HIRENBHAI VYAS and Another vs. HIRENBHAI RAMESHCHANDRA VYAS and Another, (2015) 2 SCC 385, wherein it is held that,

“5. Sec. 125 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 Sec. 354(6) 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.”

3. Learned counsel for respondent, however, argued in support of the impugned order, contending that the petitioner having failed to produce any clinching material to show the financial capacity of the respondent, there is no reason to interfere with the impugned order.

I have considered the submissions and perused the records.

4. Insofar as the quantum of maintenance is concerned, though the evidence adduced by the petitioner / wife has remained uncontroverted, but on going through the said evidence, I find that, except producing the encumbrance certificate Ex.P7, sale deed Ex.P8, the petitioner / wife has not produced any clear material to show that the respondent / husband is holding any immovable prop erty or factories in his name. Though assertion made by the petitioner in her evidence that the respondent is running a paper tubes factory in the name of Padma Industries has remained unchallenged in the cross- examination, yet, merely on the ground of assertion made in the evidence, it cannot be concluded that the respondent is deriving any income therefrom.

5. In that view of the matter, I do not find any justifiable reason to interfere with the quantum of maintenance awarded by the Trial Court. However, as it is submitted by learned counsel for petitioner that since the disposal of the above case, the petitioner has collected relevant documents in proof of the financial capacity of the respondent, I find it proper to reserve liberty to the petitioner to seek enhancement of maintenance, by making proper application under sec. 127 Cr.P.C. before the Trial Court.

6. Coming to the order passed by the Family Court directing the respondent to pay maintenance from the date of the order is concerned, no doubt sub-sec. (2) of sec. 125 of the Code empowers the Court to grant maintenance from the date of the order or from the date of the application, yet, as held by the Honble Supreme Court in the above decision, the Trial Court is required to assign reasons for choosing either of the dates. The impugned