Delhi High Court
Sneh Lata & Anr. vs Ajay Kumar Khanna & Anr. on 6 August, 1999
Equivalent citations: 1999VAD(DELHI)289, 1999CRILJ4209, 81(1999)DLT176, II(1999)DMC451
Author: M.S.A. Siddiqui
Bench: M.S.A. Siddiqui
ORDER M.S.A. Siddiqui, J.
1. This petition, being one under Section 482 Cr.P.C., is directed against the order dated 8.9.1998 passed by Shri S.K. Kaushik Additional Sessions Judge, Delhi in Criminal Revision No.121/97, whereby the order dated 23.9.1997 passed by Ms. Santosh Sneh Mann, Metropolitan Magistrate, Delhi in case No.99/94 was modified.
2. Briefly speaking, the facts giving rise to this petition are that the petitioners filed an application under Section 125 Cr.P.C. against the respondent for grant of interim maintenance. By the order dated 23.9.1997, the learned Magistrate directed the respondent to pay interim maintenance @ Rs.400/- per month from the date of filing of the application. Aggrieved by the said order, the respondent moved the Additional Sessions Judge by filing a revision petition. By the impugned order, the learned Additional Sessions Judge modified the order dated 23.9.1997 passed by the learned Magistrate directing payment of maintenance from the date when the amended petition under Section 125 Cr.P.C. was brought on record i.e. with effect from 19.5.1995. Feeling aggrieved, the petitioners have filed the present application under Section 482 Cr.P.C.
3. The question arises as to from which date the petitioners would be entitled to claim the maintenance under Section 125 Cr.P.C. The provisions of Sections 125 to 128 of the Code of Criminal Procedure constitute complete code in itself. These provisions deal with adjudication as regards the liability to pay maintenance to the neglected wife and child etc, the execution of the order and the mode of its execution. Ordinarily, the right to claim maintenance under Section 125 of the Code fractifies on the date of the filing of the petition as the scheme of the provisions embodied in the said section is only intended for the enforcement of a duty a default in which may lead to vagrancy. It is not always that the Court has to grant maintenance from that date under Sub-section (2) to Section 125 of the Code, the Court has discretion in the matter as to from which date maintenance under Section 125 of the Code should be granted. The Court can award maintenance under Section 125 of the Code either from the date of application or from the date of order taking into consideration conduct of the parties in the proceedings, averments made in the application and the reply thereto, hardship that may be caused to husband and the like. In the in-
stant case, the learned Magistrate has exercised the discretion under subsection (2) of Section 125 of the Code by awarding maintenance to the petitioners from the date of the petition. By the impugned order, the learned Additional Sessions Judge modified the order of the learned Magistrate by directing payment of maintenance from the date when the amended petition under Section 125 of the code was brought on record.
4. It appears that the petition under Section 125 of the Code was allowed to be amended into one based on the original cause of action. That being so, the amendment would relate back to the date of the presentation of the original petition. The fact that the petition was amended by the petitioners cannot be a ground for rejecting the claim of maintenance from the date of the petition. Normally, the jurisdiction of the Code under Section 397 of the Code is to be exercised in exceptional cases where there is glaring defect in the procedure or there is manifest error on a point of law which has consequently resulted in flagrant miscarriage of justice. There is nothing on record to show that in granting maintance from the date of the application, the learned Magistrate has exercised her discretion in an arbitrary or capricious manner. In this view of the matter, the learned Additional Sessions Judge, has misdirected himself in substituting his own discretion in the place of discretion of the learned Magistrate. Thus, there is a manifest error on a point of law in the impugned order of the learned Additional Sessions Judge which has resulted in flagrant miscarriage of justice warranting interference of this Court under Section 482 of the Code.
5. For the foregoing reasons, the petition is allowed and the impugned order of the learned Additional Sessions Judge is set aside.