Punjab-Haryana High Court
Manmohni Jindal vs Tarsem Chand on 7 September, 2002
Equivalent citations: I(2003)DMC708
Author: Satish Kumar Mittal
Bench: Satish Kumar Mittal
JUDGMENT Satish Kumar Mittal, J.
1. The only prayer made in this petition is that the petitioner, who is deserted wife of the respondent, should be granted maintenance allowance at the rate of Rs. 500/- per month as ordered by the Courts below, from the date of filing of the application under Section 125 of the Code of Criminal Procedure (hereinafter referred to as 'the Code') and not from the date of passing of the order.
2. Vide order dated 11.12.1999, the learned Additional Sessions Judge granted maintenance to the petitioner at the rate of Rs. 500/- per month from the date of order passed by trial Court i.e. from 12.11.1998 and not from the date of filing the application by her i.e. from 29.9.1989.
3. Marriage of the petitioner was solemnised with the respondent on 2.5.1982 at Bhawanigarh according to the Hindu rites and ceremonies. Both the parties before the marriage were divorcees and this was the second marriage of both of them. Out of wed-
lock two children i.e. a daughter and a son were born on 7.1.1984 and 11.10.1987, respectively. Unfortunately, the marriage between the parties did not work well. The respondent allegedly maltreated the petitioner, as a result of which most of the time she had to live at her parental house. Since the petitioner was unemployed and was having no source of income to maintain herself and her two children, therefore, on 29.9.1989 she filed an application under Section 125 of the Code seeking maintenance allowance for herself and her minor children on the ground that the respondent has neglected the petitioner without any valid reason and had refused to maintain them. Learned Additional Chief Judicial Magistrate, Sangrur, vide his order dated 6.8.1990 granted interim maintenance to the petitioner at the rate of Rs. 250/- per month and Rs. 125/- per month each to both the children from the date of application. On revision, the said order was modified by the learned Additional Sessions Judge, Sangrur, vide order dated 10.9.1991 and the interim maintenance regarding petitioner was kept intact, whereas the monthly maintenance for the children was enhanced from Rs. 125/- each to Rs. 150/- each. Subsequently, the learned Magistrate finally decided the application filed by the petitioner for grant of maintenance allowance on 23.12.1995, vide which the maintenance was granted to the children at the rate of Rs. 400/- per month, but no maintenance was granted to the petitioner holding that on the dale of her marriage with the respondent, he had not legally divorced his first wife and therefore, she was not entitled to any maintenance being not legally wedded wife of the respondent. The said order was affirmed in revision by learned Additional Sessions Judge, Sangrur,vide his judgment dated 4.11.1997. However, this Court vide order dated 22.7.1998 (Annexure R-4), set aside both these orders and remanded the matter to the trial court with the direction to decide the same in accordance with law on the admitted pleadings of the parties regarding their being legally wedded husband and wife. After the remand, the learned trial court vide its order dated 12.11.1998 (Annexure P-2) granted maintenance to the petitioner at the rate of Rs. 400/- per month from the date of passing of the order and not from the date of filing of the application. No reason has been recorded in this order for not granting the maintenance from the date of application.
4. The petitioner challenged the said order in revision before the learned Additional Sessions Judge, Sangrur, who vide order dated 11.12.1999 (Annexure P-3) enhanced the amount of maintenance from Rs. 400/- to Rs. 500/- per month but ordered that the same will be payable to the petitioner from the date of order of the trial Court. For granting the maintenance from the date of order of trial Court, the learned Additional Sessions, Judge recorded the following reasons:-
"8.... As regards allowing the application of the petitioner from the date of order, it is entirely a discretion of the court either to grant the allowance from the date of order or from the date of application as there is no indication in the provisions of law to allow the maintenance from the date of application. The section simply make it discretionary for the learned lower court to award maintenance either from the date of order or from the date of application."
5. Learned counsel for the petitioner contended that the courts below did not record any reason for not granting the maintenance to the petitioner from the date of passing of the application i.e. from 29.9.1989. She fought the litigation for more than nine years to get the order of maintenance. During all these years, the petitioner was made to suffer the agony and mental torture. The delay was caused only on account of the tactics followed by the respondent. The petitioner was not at all, responsible for any delay caused in the adjudication of the matter. Therefore, she should not be allowed to suffer.
6. On the other hand, learned counsel for the respondent submitted that there is no justification to grant maintenance allowance to the petitioner from the date of application. He submitted that since the petitioner was granted interim maintenance at the rate of 250/- per month by the trial Court, vide its order dated 6.8.1990, which was being regularly paid to her, therefore, the trial court has no jurisdiction to grant the enhanced maintenance to the petitioner from the date of application. In support of his contention, he relied upon Arun Kumar Sharma v. Smt. Rama Sharma and Anr. (1990)17 Cr.L.T. 465 and Samaydin v. State of U.P., 2001(3) R.C.R. 509.
7. I have considered the submissions made by the learned counsel for the parties and have perused the impugned order.
8. Section 125 of the Code provides for granting maintenance to the wife and children, if a person having sufficient means, neglects or refuses to maintain his wife who is unable to maintain herself, at such monthly rate not exceeding Rs. 500/- on the application filed by the wife. Sub-section (2) of this Section further provides that such monthly allowance for the maintenance of the wife shall be payable from the date of order or, if so ordered, from the date of application for maintenance. Thus, a judicial discretion has been given to the Judicial Magistrate to order for such maintenance either from the date of order or from the date of application for maintenance. The discretion provided in this sub-section has to be exercised with circumspection consistent with justice, equity and good conscious keeping in view the facts and circumstances of the case. It is not to be arbitrary, vague and fanciful. While ordering the grant of maintenance, either from the date of order or from the date of application for maintenance, the Judicial Magistrate is required to record reasons for the same. The contention has been raised by learned counsel for the respondent that the Magistrate is not required to record reasons, if he grants maintenance from the date of order and that he is required to record the reasons only if he grants maintenance from the date of application. This contention is not acceptable. In my view, the reasons have to be recorded in both the situations. In the present case, the trial Court did not record any reason for granting maintenance from the date of order. However, the learned Additional Sessions Judge, has observed that it is the discretion of the Court to grant maintenance either from the date of order or from the date of filing of the application for maintenance. This is hardly any reason for exercising the discretion. In my opinion, the learned Additional Sessions Judge, has only observed about discretion but has not given any reason for granting maintenance from the date of order and not from the date of application. Therefore, he has to failed to exercise his judicial discretion, while not granting the maintenance from the date of application, because when any thing is left to any Judge or Magistrate do be done according to his discretion, the law intends that it must be done with sound discretion and according to law. In the present case, there is no justified reason for not granting the maintenance to the petitioner from the date of application. The petitioner filed application for grant of maintenance allowance before the trial Court on 29.9.1989. It took more than nine years for her to get just maintenance allowance for no fault of her, The delay in determining the issue for grant of maintenance to the petitioner was caused as the respondent had even denied the validity of the marriage. If nine years have been spent in litigation, the petitioner should not suffer for the same. The petitioner has placed on record the various zimni orders (Annexure P-5) of the trial Court. A bare perusal of these orders reveals that out of total 49 adjournments, about 19 adjournments were taken by the respondent. The petitioner who is unemployed and, having no source of income to maintain herself and her children, has fought the litigation for nine years when final order of maintenance was passed. On the other hand, the conduct of the respondent is not appreciable. He denied the validity of the marriage with the petitioner even after birth of two children from this wed-lock. Keeping in view all these facts and circumstances of the present case, the petitioner should have been granted maintenance from the date of filing of the application i.e. from 29.9.1989. There is no force in the contention of learned counsel for the respondent that maintenance allowance under Section 125 of the Code cannot be granted to the petitioner from the date of application, as she had been granted interim maintenance at the rate of Rs. 250/- per month. Merely because some interim maintenance was granted to the petitioner, it does not debar the Court from granting maintenance allowance from the date of application, while passing the final order on the application under Section 125 of the Code. However, whatever the interim maintenance was paid to the petitioner, the same shall be adjusted towards the maintenance finally awarded to her. The judgments cited by the learned counsel for the respondent are not applicable to the facts and circumstances of the present case, because in those cases there was no specific pleading that the husband was delaying the proceedings nor any reason was recorded by the Court in this regard. Thus, I find that both the Courts below were not correct in granting maintenance to the petitioner from the date of order.
9. In view of the above discussion, this petition is allowed and the order dated 11.12.1999 passed by learned Additional Sessions Judge, Sangrur is modified and the petitioner is ordered to be paid maintenance allowance at the rate of Rs. 500/- per month from the date of filing of the application i.e. from 29.9.1989. However, the interim maintenance, which was paid to the petitioner shall be adjusted.
No order as to costs.