Punjab-Haryana High Court
Manjit Singh vs State Of Punjab And Another on 23 January, 2023
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
(123)
CRR(F)-15-2023.
Date of Decision:-23.01.2023.
Manjit Singh
......Petitioner
Versus
State of Punjab and another
......Respondents
CORAM: HON'BLE MR. JUSTICE ALOK JAIN
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Present: Mr. Amit Arora, Advocate for the petitioner.
Mr. Arun Gupta, AAG, Punjab.
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ALOK JAIN, J. (Oral)
The present petition has been filed impugning the order dated 18.10.2022 passed by the Principal Judge, Family Court, Baba Bakala Sahib, District Amristar, whereby the petitioner has been directed to pay interim maintenance to the tune of ` 13000/- per month to respondent No.2 from the date of application.
Learned counsel for the petitioner has submitted that the learned Court below has fell in error in granting the maintenance from the date of application without recording any reasons, which it was incumbent upon in the light of the judgment passed by the Hon'ble Supreme Court of India in Jaiminiben Hirenbhai Vyas and another Vs. Hirenbhai Rameshchandra Vyas and another, 2015(2) SCC 385. Counsel for the petitioner also relies upon the judgment passed by the Hon'ble Supreme Court of India in Shail Kumari Devi and another Vs. Krishan Bhagwan Pathak @ Kishun B. Pathak, 2008(9) SCC 632, to submit that as per Section 125 of Cr.P.C. which impliedly requires the Court to consider 1 of 10 ::: Downloaded on - 30-01-2023 20:25:39 ::: -2- CRR(F)-15-2023 making the order for maintenance effective from either of the two dates.
Having regard to the relevant facts considered, he further relies upon the judgment of Shail Kumari Devi (supra) to submit that the learned Court below did not reach to a conclusion as to why it was necessary to grant interim maintenance from the date of application.
Counsel for the petitioner further submits that the respondent-
wife herself left the society of the petitioner and is alleged to have been working as a model and earning.
Heard the learned counsel for the petitioner.
After going through the record and impugned order, the present petition deserves to be dismissed for the reason that the Court below has duly considered all the submissions made by the petitioner. In fact it has duly recorded that it is only a bald claim by the petitioner that the wife is working as a model and earning ` 70,000/- per month but there was nothing brought on record to substantiate the said averments.
The Hon'ble Supreme Court of India in the case of Rajnesh Vs. Neha and another in Criminal Appeal No.730 of 2020 dated 04.11.2020 in Part B has held as under:-
"IV Date from which Maintenance to be awarded
99. There is no provision in the HMA with respect to the date from which an Order of maintenance may be made effective. Similarly, Section 12 of the D.V. Act, does not provide the date from which the maintenance is to be awarded.
100. Section 125(2) Cr.P.C., 1973 is the only statutory provision which provides that the Magistrate may award maintenance either from the date of the order, or from the date
2 of 10 ::: Downloaded on - 30-01-2023 20:25:39 ::: -3- CRR(F)-15-2023 of application. K. Sivaram v. K. Mangalamba & Ors.1989 (1) APLJ (HC) 604
101. In the absence of a uniform regime, there is a vast variance in the practice adopted by the Family Courts in the country, with respect to the date from which maintenance must be awarded. The divergent views taken by the Family Courts are : first, from the date on which the application for maintenance was filed; second, the date of the order granting maintenance; third, the date on which the summons was served upon the respondent.
(a) From date of application
102. The view that maintenance ought to be granted from the date when the application was made, is based on the rationale that the primary object of maintenance laws is to protect a deserted wife and dependant children from destitution and vagrancy. If maintenance is not paid from the date of application, the party seeking maintenance would be deprived of sustenance, owing to the time taken for disposal of the application, which often runs into several years.
103. The Orissa High Court in Susmita Mohanty v. Rabindra Nath Sahu 1996 (I) OLR 361 held that the legislature intended to provide a summary, quick and comparatively inexpensive remedy to the neglected person. Where a litigation is prolonged, either on account of the conduct of the opposite party, or due to the heavy docket in Courts, or for unavoidable reasons, it would be unjust and contrary to the object of the provision, to provide maintenance from the date of the order.
104. In Kanhu Charan Jena v. Smt. Nirmala Jena 2001 CriLJ 879, the Orissa High Court was considering an application under Section 125 Cr.P.C., 1973 wherein it was held that even though the decision to award maintenance either from the date of application, or from the date of order, was within the discretion of the Court, it would be appropriate to grant 3 of 10 ::: Downloaded on - 30-01-2023 20:25:39 ::: -4- CRR(F)-15-2023 maintenance from the date of application. This was followed in Arun Kumar Nayak v. Urmila Jena, (2010) 93 AIC 726 (Ori) wherein it was reiterated that dependents were entitled to receive maintenance from the date of application.
105. The Madhya Pradesh High Court in Krishna Jain v. Dharam Raj Jain 1993 (2) MPJR 63 held that a wife may set up a claim for maintenance to be granted from the date of application, and the husband may deny it. In such cases, the Court may frame an issue, and decide the same based on evidence led by parties. The view that the "normal rule" was to grant maintenance from the date of order, and the exception was to grant maintenance from the date of application, would be to insert something more in Section 125(2) Cr.P.C., 1973 which the Legislature did not intend. Reasons must be recorded in both cases. i.e. when maintenance is awarded from the date of application, or when it is awarded from the date of order.
106. The law governing payment of maintenance under Section 125 Cr.P.C., 1973 from the date of application, was extended to HAMA by the Allahabad High Court in Ganga Prasad Srivastava v. Additional District Judge, Gonda & Ors. 2019 (6) ADJ 850. The Court held that the date of application should always be regarded as the starting point for payment of maintenance. The Court was considering a suit for maintenance under Section 18 of HAMA, wherein the Civil Judge directed that maintenance be paid from the date of judgment. The High Court held that the normal inference should be that the order of maintenance would be effective from the date of application. A party seeking maintenance would otherwise be deprived of maintenance due to the delay in disposal of the application, which may arise due to paucity of time of the Court, or on account of the conduct of one of the parties. In this case, there was a delay of seven years in disposing of the suit, and the wife could not be made to starve till such time. The wife was held to be entitled to maintenance from the date of application/suit.
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107. The Delhi High Court in Lavlesh Shukla v. Rukmani Crl.Rev.P. 851/2019 decided by the Delhi High Court vide Order dated 28.11.2019 held that where the wife is unemployed and is incurring expenses towards maintaining herself and the minor child/children, she is entitled to receive maintenance from the date of application. Maintenance is awarded to a wife to overcome the financial crunch, which occurs on account of her separation from her husband. It is neither a matter of favour to the wife, nor any charity done by the husband.
(b) From the date of order
108. The second view that maintenance ought to be awarded from the date of order is based on the premise that the general rule is to award maintenance from the date of order, and grant of maintenance from the date of application must be the exception. The foundation of this view is based on the interpretation of Section 125(2) Cr.P.C., 1973 which provides:
"(2) Any such allowance for the maintenance or interim maintenance and expenses for proceeding shall be payable from the date of the order, or, if so ordered, from the date of the application for maintenance or interim maintenance and expenses of proceeding, as the case may be."
(emphasis supplied)
109. The words "or, if so ordered" in Section 125 has been interpreted to mean that where the court is awarding maintenance from the date of application, special reasons ought to be recorded. Bina Devi & Ors. v. State of Uttar Pradesh & Ors. (2010) 69 ACC 19.
110. In Bina Devi v. State of U.P., (2010) 69 ACC 19 the Allahabad High Court on an interpretation of section 125(2) of the Cr.P.C., 1973 held that when maintenance is directed to be paid from the date of application, the Court must record reasons. If the order is silent, it will be effective from the date of 5 of 10 ::: Downloaded on - 30-01-2023 20:25:39 ::: -6- CRR(F)-15-2023 the order, for which reasons need not be recorded. The Court held that Section 125(2) Cr.P.C., 1973 is prima facie clear that maintenance shall be payable from the date of the order.
111. The Madhya Pradesh High Court in Amit Verma v. Sangeeta Verma & Ors. CRR No. 3542/2019, decided by the Madhya Pradesh High Court vide Order dated 08.01.2020 directed that maintenance ought to be granted from the date of the order.
(c) From the date of service of summons
112. The third view followed by some Courts is that maintenance ought to be granted from the date of service of summons upon the respondent.
113. The Kerala High Court in S. Radhakumari v. K.M.K. Nair AIR 1983 Kerala 139 was considering an application for interim maintenance preferred by the wife in divorce proceedings filed by the husband. The High Court held that maintenance must be awarded to the wife from the date on which summons were served in the main divorce petition. The Court relied upon the judgment of the Calcutta High Court in Samir Banerjee v. Sujata Banerjee, 70 CWN 633 and held that Section 24 of the HMA does not contain any provision that maintenance must be awarded from a specific date. The Court may, in exercise of its discretion, award maintenance from the date of service of summons.
114. The Orissa High Court in Gouri Das v. Pradyumna Kumar Das 1986 (II) OLR 44 was considering an application for interim maintenance filed under Section 24 HMA by the wife, in a divorce petition instituted by the husband. The Court held that the ordinary rule is to award maintenance from the date of service of summons. It was held that in cases where the applicant in the maintenance petition is also the petitioner in the divorce petition, maintenance becomes payable from the 6 of 10 ::: Downloaded on - 30-01-2023 20:25:39 ::: -7- CRR(F)-15-2023 date when summons is served upon the respondent in the main proceeding.
115. In Kalpana Das v. Sarat Kumar Das, AIR 2009 Orissa 133 the Orissa High Court held that the wife was entitled to maintenance from the date when the husband entered appearance. The Court was considering an application for interim maintenance under Section 24 HMA in a petition for restitution of conjugal rights filed by the wife. The Family Court awarded interim maintenance to the wife and minor child from the date of the order. In an appeal filed by the wife and minor child seeking maintenance from the date of application, the High Court held that the Family Court had failed to assign any reasons in support of its order, and directed :
"9. ...Learned Judge. Family Court has not assigned any reason as to why he passed the order of interim maintenance w.e.f. the date of order. When admittedly the parties are living separately and prima facie it appears that the Petitioners have no independent source of income, therefore, in our view order should have been passed for payment of interim maintenance from the date of appearance of the Opposite Party-
husband..."(emphasis supplied) Discussion and Directions
116. The judgments hereinabove reveal the divergent views of different High Courts on the date from which maintenance must be awarded.
117. Even though a judicial discretion is conferred upon the Court to grant maintenance either from the date of application or from the date of the order in Section 125(2) Cr.P.C., it would be appropriate to grant maintenance from the date of application in all cases, including Section 125 Cr.P.C., 1973 In the practical working of the provisions relating to maintenance, we find that there is significant delay in disposal 7 of 10 ::: Downloaded on - 30-01-2023 20:25:39 ::: -8- CRR(F)-15-2023 of the applications for interim maintenance for years on end. It would therefore be in the interests of justice and fair play that maintenance is awarded from the date of the application.
118. In Shail Kumari Devi and Ors. v. Krishnan Bhagwan Pathak (2008) 9 SCC 632, this Court held that the entitlement of maintenance should not be left to the uncertain date of disposal of the case. The enormous delay in disposal of proceedings justifies the award of maintenance from the date of application. In Bhuwan Mohan Singh v. Meena (2015) 6 SCC 353, this Court held that repetitive adjournments sought by the husband in that case resulted in delay of 9 years in the adjudication of the case. The delay in adjudication was not only against human rights, but also against the basic embodiment of dignity of an individual. The delay in the conduct of the proceedings would require grant of maintenance to date back to the date of application.
119. The rationale of granting maintenance from the date of application finds its roots in the object of enacting maintenance legislations, so as to enable the wife to overcome the financial crunch which occurs on separation from the husband. Financial constraints of a dependant spouse hampers their capacity to be effectively represented before the Court. In order to prevent a dependant from being reduced to destitution, it is necessary that maintenance is awarded from the date on which the application for maintenance is filed before the concerned Court.
120. In Badshah v. Urmila Badshah Godse (2014) 1 SCC 188, the Supreme Court was considering the interpretation of Section 125 Cr.P.C., 1973 The Court held :
"13.3. ...purposive interpretation needs to be given to the provisions of section 125 CrPC, 1973. While dealing with the application of a destitute wife or hapless children or parents under this provision, the Court is dealing with the marginalised sections of the society. The purpose is to achieve "social justice" which is the constitutional vision, 8 of 10 ::: Downloaded on - 30-01-2023 20:25:39 ::: -9- CRR(F)-15-2023 enshrined in the Preamble of the Constitution of India. The Preamble to the Constitution of India clearly signals that we have chosen the democratic path under the rule of law to achieve the goal of securing for all its citizens, justice, liberty, equality and fraternity. It specifically highlights achieving their social justice. Therefore, it becomes the bounden duty of the courts to advance the cause of the social justice. While giving interpretation to a particular provision, the court is supposed to bridge the gap between the law and society." (emphasis supplied)
121. It has therefore become necessary to issue directions to bring about uniformity and consistency in the Orders passed by all Courts, by directing that maintenance be awarded from the date on which the application was made before the concerned Court. The right to claim maintenance must date back to the date of filing the application, since the period during which the maintenance proceedings remained pending is not within the control of the applicant."
Further, the Hon'ble Supreme Court of India issued final directions in clause (d) Para 135, which read as under:-
"(d) Date from which maintenance is to be awarded
135. We make it clear that maintenance in all cases will be awarded from the date of filing the application for maintenance, as held in Part B - IV above."
In light of the above coupled with facts that the learned Court below has further considered the entirety of the matter and after holding that the respondent-wife is the legally wedded wife and cannot be left to die out of starvation or lead a life of vagrancy or live at the mercy of others as a reasonable justification for granting the maintenance from the date of application.
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(ALOK JAIN) JUDGE January 23, 2023.
Sandeep
Whether speaking/reasoned:- Yes
Whether Reportable:- Yes
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