Madhya Pradesh High Court
Ajay Rohit vs Smt. Joti Rohit Thr. Ramesh Rohit on 28 November, 2017
1 Cr.R.No.2401/2015
IN THE HIGH COURT OF MADHYA PRADESH PRINCIPAL
SEAT AT JABALPUR
Cr.R.No.2401/2015
Ajay Rohit aged 30 years, son of
Purshottam Rohit R/o MIG 48
Vivekanand Nagar, Police Station
Kotwali, District Damoh
..........Petitioner.
Vs.
1. Smt. Jyoti Rohit, aged about 26
years wife of Ajay Rohit (since
dead). Represented through
respondent No.2 Gaurdian Shri
Ramesh Rohit.
2. Mahima Rohit aged about 5 years
daughter of Ajay Rohit through
guardian Ramesh Rohit son of
Shivlal Rohit, R/o Civil Ward
No.1, Shobha Nagar, Police
Station Kotwali, District Damoh.
..........Respondents.
.................................................................................................................
Present: Hon'ble Shri Justice C.V. Sirpurkar
..................................................................................................................
Shri Saurabh Singh, counsel for the petitioner.
Shri Prashant Dubey, counsel for the respondents.
................................................................................................................
2 Cr.R.No.2401/2015
ORDER
(28-11-2017)
1. This criminal revision is directed against order dated 18.8.2015 passed by the Principal Judge, Family Court, Damoh in M.J.C. No.433/2015, whereby the application for maintenance filed on behalf of respondent no.2 Mahima Rohit was allowed and the petitioner was directed to pay Rs.2000/- per month by way of maintenance under Section 125 of the Cr.P.C. to respondent Mahima from the date of application, i.e., 21.9.2011.
2. The facts giving rise to this criminal revision may be summarized as hereunder: Respondent No.2 Mahima Rohit is five years old daughter of petitioner Ajay Rohit. Petitioner Ajay had married respondent No.1 Jyoti Rohit by Hindu rites. Respondent No.2 Mahima was born in the wedlock on 12.11.2009. During the pendency of the case, respondent No.1 Jyoti Rohit, mother of respondent No.2 Mahima, expired; therefore, by order dated 28.1.2015 passed by the Court of Judicial Magistrate First Class, Damoh, Ramesh Rohit, maternal grand-father of respondent No.2 Mahima Rohit, was substituted as respondent No.1 and guardian of respondent No.2 Mahima. After the trial, the Principal Judge, Family Court, Damoh directed petitioner Ajay to pay maintenance under Section 125 of the Cr.P.C. to respondent Mahima Rohit @ Rs.2000/- per month from the date of the application, i.e., 21.9.2011. It was also directed that the interim maintenance paid by the petitioner to respondent No.2 shall be adjusted.
3 Cr.R.No.2401/20153. It is not in dispute that respondent No.2 Mahima is daughter of petitioner Ajay Rohit. It is also not in dispute that her mother Jyoti Rohit has since expired and the respondent No.2 Mahima Rohit, at present, is living with her maternal grand-father Ramesh Rohit, who has been appointed her guardian for the purpose of present proceedings. Petitioner Ajay had also admitted during his cross-examination that he has since married one Nisha Raj, who is at present living with him as his wife. It is also admitted position in the case that the petitioner has filed an application under Section 7 of the Hindu Minority and Guardianship Act, 1956 for the custody of respondent No.2 which is still pending. He has also admitted in his cross examination that he earns Rs.14,700/- per month as a teacher in a government school.
4. In aforesaid circumstances, on basis of age, it may be presumed that respondent Mahima is unable to maintain herself. Thus, it is clear that the respondent No.2 is entitled to receive monthly maintenance from the petitioner at least till the proceedings for the custody of respondent No.2 are decided in favour of the petitioner and her custody is actually restored to him. Keeping in view the salary of the petitioner and his other liabilities as well as the current requirement of the respondent No.2, the maintenance at rate of Rs.2000/- per month is appropriate and warrants no interference. The main contention that has been raised on behalf the petitioner is that the maintenance ought to have been awarded from the date of the order, i.e., 18.8.2015 and not from the date 4 Cr.R.No.2401/2015 of the application i.e. on 21.9.2011. In this regard learned counsel for the petitioner has placed reliance upon the judgment rendered by the Supreme Court in the case of Jaiminiben Vs Hirenbhai, (2015) 2 SCC 385, wherein it has been held that whether the maintenance is granted from the date of the order or the date of the application, reasons have to be recorded because Sections 125 and 354 (6) of the Cr.P.C. have to be read together.
5. On the other hand, learned counsel for the respondent has invited attention of the Court to the judgment passed by the Supreme Court in the case of Shail Kumari Devi Vs. Krishan Bhagwan 2009 (1) MPLJ (Cri.) 14, wherein the Supreme Court has observed that maintenance allowance under Section 125 of the Cr.P.C. can be awarded from the date of the order, or, if so ordered, from the date of the application for maintenance, as the case may be. For awarding maintenance from the date of the application, express order is necessary. No special reasons, however, are required to be recorded by the Court. No such requirement can be read into sub-section (1) of Section 125 of the Cr.P.C. in absence of express provisions to that effect.
6. It may be noted that another Bench of Supreme Court in the case of Bhuwan Mohan Singh Vs. Meena (2015) 6 SCC 653 and the Bench went on to observe that:
"14. While dealing with the relevant date of grant of maintenance, in Shail Kumari Devi v. Krishan Bhagwan Pathak10, the Court referred to the Code of Criminal Procedure (Amendment) Act, 2001 (50 of 2001) and came to hold that: (SCC p. 639, para 21)
21. "... Even after the amendment of 2001, an order for payment of maintenance can be made by a court either from the date of the order or where an express order is made to pay maintenance from the date of 5 Cr.R.No.2401/2015 application, then the amount of maintenance can be paid from that date i.e. from the date of application."
The Court referred to the decision in Krishna Jain v. Dharam Raj Jain11 wherein it has been stated that: (Shail Kumari Devi case10, SCC p. 645, para 37)
37. "... To hold that, normally maintenance should be made payable from the date of the order and not from the date of the application unless such order is backed by reasons would amount to inserting something more in the sub-section which the legislature never intended. The [High Court had] observed that it was unable to read in sub-section (2) laying down any rule to award maintenance from the date of the order or that the grant from the date of the application is an exception."
The High Court had also opined that whether maintenance is granted from the date of the order or from the date of application, the Court is required to record reasons as required under sub-section (6) of Section 354 of the Code.
15. After referring to the decision in Krishna Jain11, the Supreme Court adverted to the decision of the High Court of Andhra Pradesh in K. Sivaram v. K. Mangalamba12 wherein it has been ruled that the maintenance would be awarded from the date of the order and such maintenance could be granted from the date of the application only by recording special reasons. The view of the learned Single Judge of the High Court of Andhra Pradesh stating that it is a normal rule that the Magistrate should grant maintenance only from the date of the order and not from the date of the application for maintenance was not accepted by this Court. Eventually, the Court ruled thus: (Shail Kumari Devi case10, SCC p. 647, para 43)
43. "We, therefore, hold that while deciding an application under Section 125 of the Code, a Magistrate is required to record reasons for granting or refusing to grant maintenance to wives, children or parents. Such maintenance can be awarded from the date of the order, or, if so ordered, from the date of the application for maintenance, as the case may be. For awarding maintenance from the date of the application, express order is necessary. No special reasons, however, are required to be recorded by the court. In our judgment, no such requirement can be read in sub-section (1) of Section 125 of the Code in absence of express provision to that effect."
7. In the context of the present case; however, this discussion is academic because learned Principal Judge, Family Court has bestowed its consideration upon the date from which the maintenance allowance is to be awarded to the respondent No.2 in paragraph Nos.22 and 23 of the impugned 6 Cr.R.No.2401/2015 judgment and placing reliance upon the full Bench judgment of the High Court of Madhya Pradesh in the case of Saroj Bai Vs. Jai Kumar 1994 MPLJ 928 has held that ordinarily, the maintenance should be awarded from the date of the application under Section 125 of the Cr.P.C. The Court below further held that respondent No.2 is a minor and required the maintenance allowance from the date of the application.
8. Aforesaid reason given by the learned Principal Judge has been assailed by learned counsel for the petitioner, in this criminal revision by inviting attention of the Court to the fact that at the time of filing of the application, the respondent No.2 lived with her mother, namely, Jyoti Rohit, who worked as a Contract Teacher (Grade-III) and admittedly earnings Rs.2500/- per month; therefore, both mother and father had equal responsibility to maintain the child. This Court is not impressed by the reasoning advance by learned counsel for the petitioner. Even if it is assumed for the sake of arguments, that Jyoti Rohit, mother of present respondent No.2 Mahima, earned Rs.2500/- per month, this was too meager an amount and was barely sufficient for the sustenance of Jyoti Rohit herself with human dignity. She could not have been expected to have also borne the expenses of her daughter, while her father was alive an earning to the tune of Rs.14000/- per month. Thus, learned Principal Judge, was perfectly justified in awarding maintenance allowance at the rate of Rs.2000/- per month to respondent No.2 Mahima, from the date of the application.
7 Cr.R.No.2401/20159. Accordingly, the impugned order does not suffer from any illegality, irregularity or impropriety warranting interference by the High Court in revisionary jurisdiction.
10. Consequently, this criminal revision deserves to fail and is accordingly dismissed.
11. The petitioner shall bear his own cost of this criminal revision and also that of the respondent No.2.
(C.V. Sirpurkar) Judge ahd Digitally signed by MOHD AHMAD Date: 2017.11.29 03:52:09 -08'00' IN THE HIGH COURT OF MADHYA PRADESH PRINCIPAL SEAT AT JABALPUR Cr. R. No.2401/2015 Ajay Rohit Vs. Smt. Jyoti Rohit and another ORDER Post for : .11.2017 (C.V.Sirpurkar) Judge