Partly allowed

Babli @ Mamtesh and Ors. v. Suresh Kumar

Punjab & Haryana HC17 Mar 2010CRM-M/6341/2009

Case brief

AI extract

What is this about?

A bills court held that a Sessions Court must record reasons for denying maintenance from the date of application under Section 125 Cr.P.C. Consequently, to prevent miscarriage of justice under Section 482 Cr.P.C., the impugned orders were remanded to the trial court to decide the effective date of payment.

What did the court decide?

The lower court orders setting aside the part of the trial order granting maintenance only from the date of order, without recorded reasons.

Babli @ Mamtesh and Ors. Vs Suresh Kumar — Maintenance and Alimony | Punjab & Haryana HC (2010)

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CRM No. M 6341 of 2009 1

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

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CRM No. M 6341 of 2009 Date of decision: 17.03.2010

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Babli @ Mamtesh and others

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........ Petitioner

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Versus Suresh Kumar .......Respondent(s)

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Coram: Hon'ble Ms Justice Nirmaljit Kaur

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-.-

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Present: Mr. Sanjay Jain, Advocate for the petitioner

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Mr. R N Lohan, Advocate for the respondent

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-.-

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Whether Reporters of local papers may be allowed to see the judgement?

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To be referred to the Reporter or not?

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Whether the judgement should be reported in the Digest?

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Nirmaljit Kaur, J.

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This petition has been filed under Section 482 Cr.P.C. for modifying the judgement dated 02.12.2008 passed by the Additional Sessions Judge (FTC) Kurukshetra and judgement dated 10.05.2008 passed by the trial Court granting the maintenance at the rate of Rs.1000/- per month to the petitioner wife and Rs.1000/- each for remaining petitionersminor children from the date of order.

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The petitioners filed revision petition before the learned Sessions Court at Kurukshetra and the respondent also filed the appeal before the Sessions Court which was treated as revision by the Sessions

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CRM No. M 6341 of 2009 2

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Court. Learned Additional Sessions Judge, Kurukshetra vide the impugned judgement dated 02.12.2008 dismissed the revision petition filed by the petitioners as well as the respondent.

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The only issue raised by the learned counsel for the petitioner is that the maintenance should have been granted from the date of application and not from the date of order and relied on the judgement rendered by the Apex Court in the case of Shail Kumari Devi and another v. Krishan Bhagwan Pathak @ Kishun B. Pathak reported as 2008 (4) Civil Court Cases 213 (SC ) as well as the judgement rendered by this Court in the case of Bhupinder Singh v. Harjinder Kaur and another reported as 2007(1) RCR(Civil) 506 .

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Learned counsel for the respondent, however, opposed the same on the following grounds:-

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Firstly, as per sub Section 2 of Section 125 Cr.P.C., the interim maintenance is to be paid only from the date of the order and not from the date of the application. Secondly, the present petition under Section 482 Cr.P.C. is not maintainable as it amounts to second revision.

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Learned counsel for the parties were heard.

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Thus, there is no dispute that the maintenance has to be granted. However, the only dispute involves as to whether the same should be granted from the date of the order or from the date of the application

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Sub Section 2 of Section 125 Cr.P.C. reads as under:-

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“125: Order for maintenance of wives, children and parents.

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xx xx xx 1)

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Such allowance shall be payable from the date of the order, or, if so ordered, from the due of the application

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CRM No. M 6341 of 2009 3

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for maintenance.

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xx xx xx”

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From the perusal of the above, it is evident that it is the discretion of the Court to grant maintenance from the date of the order or date of application. Hence, the said discretion has to be exercised in the facts of each case and therefore a reasoned order for the grant or denial of maintenance from the date of application is required to be passed.

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Hon'ble the Supreme Court in Shail Kumari Devi (supra) in paras 44 and 45 of the judgement while interpreting the the aforesaid proviso, held as under:-

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In our considered opinion, the High Court is not right in holding that as a normal rule, the Magistrate should grant maintenance only from the date of the order and not from the date of the application for maintenance. And if he intents to pass such an order, he is required to record reasons in support of such order. As observed in K. Sivaram, reasons have to be recorded in both the eventualities. The Court was also right in observing that wherever Parliament intended the Court to record special reasons, care had been taken to make such provision by requiring the Court to record such reasons.

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Moreover, duration of litigation is not within the power or in the hands of the applicant and entitlement to maintenance should not be left to the uncertain date of disposal of the case. Keeping in view this hard

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CRM No. M 6341 of 2009 4

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reality, this Court in Savitri held that in absence of prohibition to grant `interim' maintenance such power could be read in the salutary provision of Section 125 of the Code ensuring maintenance to unable wife to maintain herself during the pendency of proceedings. Even Parliament took into account the reality and by the Amendment Act, 2001 express provision has been made for the purpose.”

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However, perusal of the judgement of the trial court as well as of the Additional Sessions Judge shows that no reason has been recorded as to why the maintenance is granted from the date of the order and not from the date of the application.

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It is incumbent upon the trial court to record the reasons in either of the two events. In the present case, the maintenance is ordered to be given from the date of the order and not from the date of the application. No reasoning for the said order has been recorded. The applicant-petitioner has a right to know the reason why she is not being granted maintenance from the date of the application. Thus, there is merit in the argument of the learned counsel for the petitioners.

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No doubt, a second revision is not maintainable. However, it is well settled law that petition under Section 482 Cr.P.C. is maintainable in case the same has resulted into miscarriage of justice. Here in this case, an important right of the petitioners for maintenance from the date of the application has not been considered. Thus, in the facts of the present case, the revision petition is maintainable.

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CRM No. M 6341 of 2009 5

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Accordingly, in view of the facts and discussion above, the present petition is partly allowed. The judgement dated 10.05.2008 passed by the trial Court is set aside only to the extent vide which a direction has been given to grant the maintenance to the petitioners 'from the date of the order.' The judgement dated 02.12.2008 passed by the Additional Sessions Judge (FTC) Kurukshetra is also set aside only to the extent vide which the part of the judgement of the trial court granting maintenance from the date of the order has been upheld. Accordingly, the matter is remanded back to the trial Court to pass afresh order only on the question of the date of the payment of the maintenance. Rest part of the judgements with respect to

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grant of quantum of the maintenance shall remain the same.

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Allowed partly in the aforesaid terms.

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(Nirmaljit Kaur) Judge

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March 17, 2010 mohan

Babli @ Mamtesh and Ors. v. Suresh Kumar

Case brief

What is this about?

What did the court decide?

Babli @ Mamtesh and Ors. v. Suresh Kumar

Case brief

What is this about?

What did the court decide?

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