Back
1994 JLJ 725
(FULL BENCH)
U.L. Bhat, C.J., M.V. Tamaskar and R.P. Awasthy, JJ.
Saroj Bai (Smt.) v. Jai Kumar Jain Cr. Revn. No. 346 of 1994; against the order of Smt. Saroj Saxena, Sessions Judge, Guna, passed in Criminal Revision No. 40 of 1987, arising out of order passed by Shri S.L. Gaur, Judicial Magistrate, First Class, Raghogarh, in Misc. Cr. Case No. 13 of 1983;
Decided on 11.8.1994.
If the order itself indicates that maintenance shall be payable from the date of application or from the date of order, there can be no ambiguity and the parties know from what date the maintenance becomes payable. Ambiguity would arise and parties would be put to difficulty where the order is silent as regards the date from which the maintenance is payable. It is to meet such contingencies that Sec. 125 (2) of the Code lays down that such allowance shall be payable from the date of order. [Para 13
(2) Criminal P.C., 1973 -- S. 125 -- Constitution of India -- Art. 15 (3) and 39 -- underlying purpose of S. 125 of the Code -- is fully consistent with Art. 15 (3) and 39 of the Constitution of India -- it is measure of social justice. AIR 1963 SC 1521, AIR 1978 SC 1807, 1985 JLJ 489 (SC) and AIR 1975 SC 83 followed. [Paras 10 & 11
(3) Criminal P.C., 1973 -- S. 125 (2) -- reasons as to the date of payment of maintenance -- have to be given in both cases whether amount is ordered to be paid from date of order or from date of application.
The decision regarding the date from which the order is to take effect must be supported by reasons; reasons are required to be given whether the Court stipulates the date of the application or the date of the order, as the date from which the order is to take effect. It cannot be that the reasons are required to be given only where the Court holds that the order is to take effect from the date of the application; reasons have to be given even where the Court postpones the date to the date of the order. 1991 JLJ 405 confirmed. Shobha Bai‘s case overruled. [Para 17
(4) Criminal P.C., 1973 -- S. 397/401 and 125 (2) -- order of maintenance challenged on the ground of non-mentioning of reasons for fixing date of payment -- decision is not void or non-est -- revision against such order -- duty of revisional Court is to see whether there is material to support.
Technically speaking, a decision which is not supported by reasons is vitiated, but this does not mean that the decision is void or non-est or that the superior Court will necessarily set aside the order on the ground of want of specification of reasons. The superior Court will examine the record which has been called for and see whether the decision is supported by materials available on record and if there are such materials, the Court will decline to interfere. This is particularly so while considering an order passed in exercise of the benevolent jurisdiction under section 125 of the Code. A decision which does not contain reasons in support of the date chosen for effectuation of the order is certainly, to that extent, irregular and defective. But it is not the function of the revisional Court to interfere with every such order on the mere ground of absence of reasons stated in the order. [Para 17
U.L. Bhat, C.J. -- 1. Petitioner in Criminal Revision No. 346 of 1994, (who is a respondent in M.Cr.C. No. 3162 of 1994) is the wife of the respondent therein, who is the petitioner in M.Cr.C. No. 3162 of 1994. In 1982, the wife filed an application under section 125 of the Code of Criminal Procedure, 1973 (for short the Code) seeking an order directing the husband to pay her maintenance allowance of Rs. 200/- per month, alleging that though he has means to maintain her, he has neglected to do so. The husband denied that she was entitled to separate maintenance. The Judicial Magistrate First Class, Raghogarh, on consideration of evidence passed an order on 13.4.1987, allowing the application and directing the husband to pay maintenance at the rate of Rs. 200/- per month from 19.1.1982, the date of application till December 1986. The husband filed revision in the Sessions Court, Guna which allowed the revision in part, reducing the quantum of maintenance from Rs. 200/- to Rs. 50/- per month. The wife aggrieved by the reduction in the rate of maintenance has filed the revision and the husband, being aggrieved by the direction requiring him to pay maintenance from the date of application, has filed the application under section 482 of the Code.
2. Hon. K.K. Verma, J. who heard both the cases, noticed contrary decisions of this Court on the question of interpretation of section 125 (2) of the Code and referred the case to a larger Bench. That is how these cases have come before us.
3. Learned Magistrate found that the husband is working as a Clerk in 3 Cloth Shop at Guna and earning Rs. 400/- per month and by another order of the Court, he was paying Rs. 75/- per month to his parents. Sessions Court found that the wife has been working in Anganwadi since January 1987. It was in these circumstances that maintenance has been ordered to be paid from the date of application till December 1986. Having regard to the facts and circumstances of the case, we do not find any ground to interfere with reduction in the quantum ordered by the Sessions Court. The wife did not challenge before Sessions Court the direction of the learned Magistrate that the maintenance is to be paid only till the end of December 1986. The only controversy before us relates to the date from which maintenance is payable.
4. In Lachhamani v. Ramu [(1983 Crimes 590 = Criminal Reference 405/82], claim was made on behalf the minor daughter against her father. The Magistrate allowed maintenance from the date of application and that was altered by the Sessions Judge who directed maintenance to be paid only from the date of order. M.D. Bhatt, J. held that section 125 (2) of the Code makes it clear that the grant of allowance is normally to be from the date of order and in case the normal rule is not intended to be followed, the Court may grant allowance from the date of application, but such order should be supported by reasons. Learned Judge also indicated that the case was pending for more than five years before the Magistrate and the further would have to pay a substantial amount to clear the arrears which would cause him great hardship. In these circumstances, the alteration made by the Sessions Court was sustained. In Mohd. Inayat Vila Khan v. Salam Banu [M.Cr.C. No. 97 of 1983 = 1985 MPWN 365 = 1985 CrLR Note 112], it was observed that there can be no dispute that ordinarily payment of maintenance has to be ordered not from the date of application but from the date of order. This view has been followed in Rameshwar v. Ramibai [1987 Cr.L.J. 1952].
5. The decision in Gafoor Ahmad v. Amnabai [1987 (II) M.P. Weekly Note 142, at page 188] related to a case where the Magistrate dismissed the application but the Sessions Court awarded maintenance to the wife and son from the date of the application. Gyani, J. indicated that though it is a matter of discretion of the Court, where ''retrospective effect" is being given, it has to be supported by reasons. Learned Judge also i
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
