Punjab-Haryana High Court
Bhupinder Singh Walia vs Varinder Kaur on 26 March, 1991
Equivalent citations: 1993CRILJ1128
ORDER S.S. Grewal, J.
1. This revision petition has been filed by Bhupinder Singh (hereinafter referred to as the husband) against the order dated 23rd of July, 1990 whereby the maintenance awarded by Sub Divisional Judicial Magistrate, Khanna, vide his order dated 30-3-89 under Section 125 of the Code of Criminal Procedure 1973 (hereinafter referred to as the Code) at the rate of Rs. 225/- per month to Smt. Varinder Kaur (hereinafter referred to as the wife) was enhanced to the tune of Rs. 400/- per month with effect from the date of the application, whereas Criminal Revision filed by the husband for setting aside of the aforesaid order passed by the Sub Divisional Judicial Magistrate, Khanna, was dismissed.
2. In brief facts relevant for the disposal of this petition as emerge from the application for grant of maintenance moved by the wife, are, that after the marriage between the parties in December, 1984, the wife was maltreated by her husband, his other relations including the mother. Her mother-in-law asked the wife to bring Rs. 10,000/- from her parents even though her parents had given scooter, fridge, television and other articles of dowry at the time of her marriage. It is also alleged that the wife alone was allowed to attend the marriage of her cousin sister at Khanna in March, 1985. Her husband did not attend that marriage, nor, he come to bring her back to her matrimonial home. After waiting for a week or so the wife went to Chandigarh along with her brother. Her mother-in-law did not permit her to enter the house. Her husband, latter's sister and brother too came and abused the wife and her brother Harbhajan Singh. The wife then returned with her brother to her parents house and complained about the demand of Rs. 10,000/- and ill-treatment meted out to her. Later on, her father and brother went to her husband and latter's mother, in order to persuade them to keep the wife amicably but they refused to keep the wife at her matrimonial home. Her father took panchayat in July, 1986 but her husband slipped out of the house on seeing that panchayat. Mother of the husband repeated the demand of Rs. 10,000/-. The wife had no income of her own and was unable to maintain herself, whereas, her husband was employed in the High. Court of Punjab and Haryana and was earning Rs. 15,00/- per month.
3. The husband admitted the factum of his marriage. The allegations that the husband had neglected and refused to maintain his wife, or, that he or his other relations harassed or acted with cruelty towards the wife were specifically denied. It was further alleged that the wife took her jewelry and clothes when she left for attending her housin's marriage at Khanna. Thereafter, she never returned to her matrimonial home and has wilfully deserted him. It was also pleaded that the wife wanted the husband to live separately from his parents and only then she would come and live with him. She also got pregnancy terminated which caused mental torture to the husband. It was next alleged that the relations of the wife including Khushal Singh threatened the husband to accede to the demands of the wife or else to face the consequences. The husband admitted that he was only getting Rs. 1348/- per month and that the wife who was living separately from him without any sufficient cause was not entitled to any maintenance.
4. The learned counsel for the parties were heard.
5. On behalf of the husband, it was firstly contended that the husband was ready to keep the wife with him and the latter has withdrawn from the company of the husband without any sufficient cause and as such she was not entitled to any maintenance. Admittedly, the wife is living separately from her husband since March, 1985. The reason given by the wife to live separately is that the husband and his relations particularly her mother-in-law, mal-treated her, as they wanted her to bring Rs. 10,000/- from her parents. On the other hand, according to the husband, the wife wanted to live separately from his mother and other relations and only then she wanted to come and live with him. Both the Courts below have rightly held that the husband was guilty of neglecting his wife and has refused to maintain her. The plea taken by the husband that the wife wanted to live with him only in case he lives separately from his mother and other relations cannot in the circumstances of the case be considered sufficient to hold that the wife was living separately from her husband without any sufficient cause or that the husband had not wilfully neglected or failed to maintain the wife. The contention raised on behalf of the husband is hardly tenable in the circumstances of the case.
6. The next contention raised on behalf of the husband was that he being the eldest son was duty bound to maintain his mother; that the learned Additional Sessions Judge had erred in enhancing the amount of maintenance granted by the trial Court and that too from the date of the application instead of from the date of order itself as granted by the learned trial Court. It was further submitted that the wife who filed application for grant of maintenance under Section 125 of the Code on 29-7-1986 completed her evidence on 22-9-1988, whereas, the husband who was directed to lead evidence for the first time on 3-10-1988 concluded his evidence on 29-3-1989, which shows that the delay in disposal of the petition was not due to any laches on the part of the husband, but, the same was mainly due to the time taken by the wife in leading her evidence and in these circumstances the impugned order passed by the learned Additional Sessions Judge enhancing the maintenance granted by the learned trial Court from Rs. 225/- per month (sic) to application is not a legal or a valid order. Admittedly, the husband was earning Rs. 1348/- per month as his salary. The learned Additional Sessions Judge has taken into account the increase in the pay scales with effect from 1-1-1986 without any cogent evidence on the record. The learned Additional Sessions Judge, however, has rightly held that the carry home salary of the husband was Rs. 1200/- per month. According to the learned Additional Sessions Judge, Gurbachan Kaur unmarried sister of the husband is working as a Translator in the office of the Financial Commissioner and his brother too is employed. However, in view of these facts, it cannot reasonably be inferred that the husband would be totally absolved from maintaining his age old mother as contemplated under Section 20 of the Hindu Adoption and Maintenance Act, 1956. Since all the circumstances referred to above were not taken into consideration by the learned trial Magistrate, there would be no legal bar for the learned Additional Sessions Judge to interfere on revisional side in enhancing the amount of maintenance from Rs. 225/- per month to Rs. 400/- per month. Nor the provisions of Section 127 of the Code empowering the Magistrate to modify the order of maintenance on the basis of change in circumstances, in the facts and circumstances of the present case, would create any legal bar or, impinge upon the power of the revisional Court in awarding enhanced maintenance to the wife under Section 123 of the Code.
7. The next question which arises is as to whether the learned Additional Sessions Judge was justified in granting enhanced maintenance from the date of application instead of awarding it from the date of order.
A Division Bench of this Court in Gurpartap Singh v. Smt. Satwant Kaur, (1991) 1 Rec Cri R 40 : (1990 Cri LJ NOC 152) held that it was not obligatory for the Court to give special reasons for granting maintenance/interim maintenance under Section 125 of the Code, from the date of the application which is purely within its discretion.
It was further observed by the Division Bench in the aforecited authority as follows :--
However, we would like to mention here that by force of rule of jurisprudence every order had to be reasoned. Section 354 of the Code deals with contents of judgments and in Clause (b) of Sub-section (1) thereof it is clearly mentioned that a judgment shall contain the point or points for determination of the decision thereof and the reasons for the decision. To that extent, the Court is required to support its decision on every point for determining with reasons and may give reasons in each of the two eventualities. Otherwise no special reasons are called for, for granting maintenance/interim maintenance under Section 125 of the Code from the date of the application.
It is true that in view of the aforecited authority in Gurpartap Singh's case, it was not obligatory for the learned trial Magistrate to give special reasons for granting maintenance under Section 125 of the Code, from the date of the application as the same was purely within its discretion. The learned trial Court having exercised its discretion, the revisional Court ought to have been slow in interfering with exercise of the said discretion, until and unless such discretion could be said to have been exercised arbitrarily and not judicially, or, in case such discretion had been exercised against well recognised principles of natural justice. For that end it may also be considered necessary for the revisional Court to give cogent reasons for exercising its revisional jurisdiction for modification of the order passed by the learned trial Magistrate. As already referred above, in the instant case, the wife had taken considerable time in producing her evidence whereas the husband has comparatively taken much less time in producing his evidence. The delay in disposal of the case for grant of maintenance cannot, in the facts and circumstances of the present case, be attributed to the husband alone. In these circumstances, the learned Additional Sessions Judge was not justified in interfering with the jurisdiction exercised by the learned trial. Court in granting maintenance from the date of the order and not from the date of filing of the application under Section 125 of the Code.
8. For the foregoing reasons, the impugned order passed by the learned Additional Sessions Judge is modified to the extent that the wife would be entitled to maintenance under Section 125 of the Code at the rate of Rs. 400/- per month from the date of the order passed by the learned trial Magistrate under Section 125 of the Code and not from the date of the application. This petition is partly allowed to the extent indicated above.