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2012 Supreme(All) 496
ALLAHABAD HIGH COURT
Vishnu Chandra Gupta, J.
Yogendra Nath Dubey -Appellant
Versus
Additional District and Sessions Judge/F.T.C.II, Sultanpur and Another -Respondent
W.P. No. 929 of 2008
Decided On : 20-02-2012
Counsel for the Petitioner: S. P. Tiwari.
Counsel for the Respondents:Rakesh Kumar Singh , Government Advocate.
Headnote:
Maintenance - Criminal Procedure Code - Section 125 - 125(1), 125(2), 354(6) - The court discussed the provisions of Section 125(1) and (2) of the Criminal Procedure Code, which provide for the maintenance of wives, children, and parents. The court also referred to Section 354(6) which mandates that every final order made under Section 125 shall contain the points for determination, the decision thereon, and reasons for the decision. The court interpreted the provisions to conclude that maintenance should be awarded from the date of application if the claimants are not responsible for the delay, and from the date of order if they are responsible or have been awarded interim maintenance. The court emphasized the need for the court to assign reasons for exercising its discretion in either way.
Fact of the Case:
The case involved a petition challenging an order modifying the date from which maintenance was payable to the wife. The petitioner argued that the revisional court exceeded its jurisdiction by substituting its own finding regarding the date of payment of maintenance contrary to the finding recorded by the trial court. The court found that the revisional court had not assigned reasons for granting maintenance from the date of the order, as required by the law.
Finding of the Court:
The court found that the revisional court had exceeded its jurisdiction by substituting its own finding regarding the date of payment of maintenance and had not assigned reasons for granting maintenance from the date of the order. The court set aside the impugned order and directed the trial court to decide the controversy of payment of maintenance from the date of application or from the date of the order, with reasons for doing so.
Issues: The issues involved the jurisdiction of the revisional court to substitute its own finding regarding the date of payment of maintenance and the requirement for the court to assign reasons for granting maintenance from a specific date.
Ratio Decidendi: The court held that the revisional court cannot substitute its own finding in place of the finding recorded by the trial court and emphasized the need for the court to assign reasons while passing orders on any point in issue. The court also interpreted the provisions of Section 125(1) and (2) of the Criminal Procedure Code to determine the date from which maintenance should be awarded.
Final Decision: The petition was allowed, and the impugned order was set aside. The trial court was directed to decide the controversy of payment of maintenance from the date of application or from the date of the order, with reasons for doing so. The petitioner was directed to continue making payment to the respondent until the controversy was resolved.
Challenge in this petition under Article 226/227 of Constitution of India is the order dated 14.1.2008 passed in Criminal Revision No. 354 of 2007, Savitri Devi v. Yogendra Nath Dubey, by Additional Sessions Judge/Fast Track Court-II, Court No. 11, Sultanpur wherein the order of learned Magistrate dated 28.6.2007 passed in proceedings under Section 125, Criminal Procedure Code (for short 'Cr. P.C.') was modified to the extent that maintenance would be payable from the date of presentation of the application, i.e., from 22.5.2001 instead of from the date of order.
2. It is not in dispute that an application under Section 125, Cr. P.C. was presented on 22.5.2001 by respondent No. 2 Smt. Savitri Devi for grant of maintenance against her husband petitioner Yogendra Nath Dubey. This application remained pending for more than 6 years. Judgment was delivered in this case awarding maintenance of Rs. 800 per month from the date of order, i.e., 28.6.2007.
3. The order of learned Magistrate was challenged in Criminal Revision No. 354 of 2007 which was disposed of by the impugned judgment, whereby the order was modified as stated above. Aggrieved with this order this petition has been filed by husband/petitioner.
4. The revisional order was assailed by the petitioner's counsel on the sole ground that revisional court while exercising jurisdiction under Section 397, Cr. P.C. could not change the date of grant of maintenance decided by the Magistrate after exercising its discretion under Section 125 (2), Cr. P.C. Discretionary order cannot be challenged unless it is shown to be against the statutory provisions or suffering from Jurisdictional error or perverse. It was further submitted that in view of Section 125 (2), Cr. P.C. the courts normally award the maintenance from the date of order. If the court intending to award the maintenance from the date of presentation of application, is bound to assign reasons, as is evident from the language of the Section.
5. On the contrary, learned counsel appearing on behalf of private respondent vehemently submitted that the scheme of Chapter IX of Cr. P.C. if taken into account, the position would be otherwise. Normally, the award of maintenance should be made effective from the date of application, but if court awards maintenance from the date of order, reasons must be assigned.
6. The learned counsel for the respondent/O.P pointed out amendments made under Section 125, Cr. P.C. with intent to provide deserted women, children and parents prompt relief.
7. Two major amendments were introduced under Section 125, Cr. P.C. prior to 24.9.2001, the maximum amount which may be awarded under Section 125, Cr. P.C. was of Rs. 500 but that limit was lifted by Act No. 50 of 2001. Another amendment was incorporated making provision for interim maintenance. A time schedule of 60 days from the date of service of notice was also provided for disposal of application for interim maintenance. These amendments were made effective from 24.9.2001 vide Act No. 50 of 2001. The relevant amended provision of Section 125, Cr. P.C. are extracted below ;
725. Order for maintenance of wives, children and parents.—(1) If any person having sufficient means neglects or refuses to maintain—
(a) his wife, unable to maintain herself,
or
(b) his legitimate or illegitimate minor child, whether married or not, unable to maintain itself,
or
(c) his legitimate or illegitimate child (not being a married daughter) who has attained majority, where such child is by reason of any physical or mental abnormality or injury unable to maintain itself,
or
(d) his father or mother, unable to maintain himself or herself, a Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, father or mother, as such monthly rate **[***], as such Magistrate thinks fit, and to pay the same to such person as the
Magistrate may from time to time dire
