1985 Supreme(MP) 237

R. C. Shrivastava, J.
Mohd. Inayatulla Khanv. Smt. Salma Bano.
Cr. Misc. Case No. 97 of 1983 (G); Decided on 2-4-1985.

Headnote:(1) Criminal P.C. 1973-S. 125-pleading in application under-not pleading in civil suit-wife showing inability to maintain herself-sufficient compliance of the provision.

       

        (2) Criminal P.C. 1973-S. 125-maintenance to be awarded form date of order-divesting from this general ruled`reasons should be recorded.

        The first contention of the learned counsel for the applicant is that the application filed by the non-applicant before the Magistrate under section 125 of the Code of Criminal Procedure. 1973 was not maintainable for the reason that it was not pleaded therein that the non-applicant was not able to maintain herself.

        Held: The contention has no force. An application under section 125 ibid has not to be construed as pleading in civil Court. The civil law of pleadings is not applicable to an application filed under section 125 ibid. To meet the requirements of section 125 (i) (a), it is sufficient if the wife is unable maintain herself and on adducing evidence she succeeds in establishing that essential requirement. The present one is a case where the non-applicant (as P.W.3) stated that she was not doing anything-and that she bad no means of income. That was admitted by the present applicant (as No.2) in. paragraph No.5 of his do position. Thus, the present no applicants inability to maintain herself was amply established from the evidence on record. That is sufficient for the requirement of section 125 (1) (a) ibid.

       

        The next contention of the learned counsel for the applicant is that the rate of compensation determined in the case is exorbitant. That contention is also without any force. The trial Court held that the present applicant had the earning capacity of Rs.400/- per month. That was upheld by the revisional Court which was also of the opinion that rate of Rs.150/- per month determined by the Magistrate as compensation was fair and reasonable. That also needs no interference.

       

        The only other contention of the learned counsel for the applicant is that the maintenance should have been awarded not from the date of application but form the date of order. In that connection, he has drawn my attention to sub-section (2) of section 125. That sub-section reads as follows:

       

        "Such allowance shall be payable from the date of the order or if so ordered from the date of the application for maintenance."

       

        He has also referred to this Courts decision in Lachhamani v Ramu (1983 MPWN Note No.148). There can be no dispute on the point that. ordinarily payment of maintenance under section 125 of the Code of Criminal Procedure has to be ordered not from the date of the application but from the date of the order. It is clearly implied that, if the maintenance is ordered to be raid from the date of application, the Court is expected to record some reason for divesting from the general rule as to order of payment from the date of order. In the present case, the Magistrate having deviated from the general rule, the order as to payment of the amount of maintenance from the date of the application is arbitrary in the absence of any reason. There is no reason in the present case for deviating from the general rule. The impugned order, therefore, needs to be modified to the extent that the payment of maintenance shall be from the date of the Maintenance order dated 2·1·1982. 1983 MPWN 148 relied on. Potion partly allowed.