Punjab-Haryana High Court
Rulia Singh vs Kartaro on 25 September, 1989
Equivalent citations: I(1990)DMC521, (1990)97PLR43
JUDGMENT S.S. Grewal, J.
1. This petition under Section 482 of the Code of Criminal Procedure (hereinafter referred to as 'the Code') is directed against the order of the Additional Sessions Judge, Ferozepur, dated 8th February, 1988, and, the order of the Judicial Magistrate Ist Class, Ferozepur, dated Ist August, 1987, whereby, the maintenance already granted under Section 125 of the Code, to the wife, and, her minor son, was enhanced from Rs. 75/- per month to Rs. 200/- per month (in respect of the wife alone, as the son in the meantime had attained majority). This enhancement was made by the Judicial Magistrate Ist Class, Ferozepur, on the application moved on behalf of the wife under Section 127 of the Code. The said order was confirmed by the Additional Sessions Judge, Ferozepur, on the revisional side.
2. In brief, the facts relevant for the disposal of this petition, are, that on the application moved by the wife under Section 125 of the Code, for grant of maintenance, for herself and for her minor son, the maintenance at the rate of Rs. 50/- per month was initially granted by the Judicial Magistrate Ist Class, Ferozepur, on 30th December, 1975. On revision the Additional Sessions Judge enhanced the said amount to Rs. 75/- per month vide his order dated 27th April, 1977, and, the maintenance was ordered to be made payable from the date of the order of the trial Court, i.e., 30th December, 1975. On 27th August, 1985, the wife again moved an application for enhancement of the maintenance allowance under Section 127 of the Code, and, thereafter, the impugned orders, referred to above, were passed.
3. Counsel for the parties were heard.
4. On behalf of the husband firstly it was submitted that the wife is in possession of 15 Kanals and 7 Marlas of Chahi land, and, the income from the said land had not been taken into consideration by the Courts below, while, enhancing the maintenance allowance from Rs. 75/- to Rs. 200/- per month. A copy of the Jamabandi for the year 1983-84, produced by the counsel for the petitioner before this Court, does show that the land measuring 15 Kanals and 7 Marlas is owned and Under cultivation of the wife. Admittedly, no evidence was led by either of the parties about the income from the said land, nor, any specific question was put to the wife (who, stepped into the witness-box), about her income from the landed property.
5. In determining the amount of maintenance the Magistrate is competent to take into consideration the separate income and means of the wife, in view of the authority of the Apex Court in Bhagwan Dutt v. Smt. Kamla Devi and Anr., AIR 1975 Supreme Court 83. As far as the facts and circumstances of the present case are concerned, in the absence of any legal, cogent, or, reliable evidence, the income of the wife cannot be: determined with precision. Even if the approximate income of the wife from her landed property comes to Rs. 200/- per month, award of maintenance to the wife cannot be considered to be excessive in view of the prevailing high prices. Income of Rs. 400/- per month, including the amount of maintenance awarded to her, would be just sufficient for her living, as well as, for food and clothing. With this income she would have bare existence.
6. Further argument advanced on behalf of the husband that he has to look after his brother's wife and latter's children, or, that from the meagre income of Rs. 823/- per month, the amount of Rs. 200/- awarded as maintenance is excessive, cannot be allowed to prevail. The first duty of the husband is towards his wife and children. Legally he is not duty bound to support his brother's wife, or, the latter's children. Morally he may do so, after he has made available necessary expenses in respect of his own wife. Mere fact that their son had become major, on started earning, would not make may material difference, as far as the responsibility of the husband towards his own wife is concerned.
7. Faced with this situation, it was submitted on behalf of the petitioner-husband that he is ready, and, willing to keep his wife with him, and, the wife is living separetly from him without any just excuse. This aspect of the case was not pleaded by the husband in his reply to the application under Section 127 of the Code. In these circumstances, the offer made by the husband at this late stage in this Court, cannot be considered to be a genuineoffer.
8. The other point raised on behalf of the counsel for the husband was that both the courts below have erred in granting enhancement in maintenance from the date of the application made in the trial Court under Section 127 of the Code, and, not from the date of the order. Reliance in this respect was placed on a Single Bench authority of this Court in Charanjit Singh Grewal alias Goggi v. Inderjit Kaur, 1988 (2) Punjab Law Reporter 297, wherein, dealing with this aspect of the case it was held that a perusal of the above provision would show that maintenance is to be awarded from the date of order, but the Court is not debarred from awarding it from the date of application. To make maintenance payable from the date of application, the Court must have cogent reasons for ordering so. Normally, the reasons relate to the conduct of the husband during the trial. The husband, who is guilty of delaying tactics in trial and had been putting, obstacles in early disposal, can be directed to make the payment of maintenance from the date of application.
9. However, on behalf of the wife reliance was placed on a Single Bench authority of this Court in Smt. Tripta v. Sat Parkash, 1984 Chandigarh Criminal Cases (HC) 482, wherein it was observed that it is discretionary with the trial Court either to grant the allowance from the date of the order, or, from the date of the application. There is no indication that if the maintenance, is allowed from the date of the application, then some special reasons have to be given. In the second place there are special reasons in this case to grant the petitioner maintenance from the date of application because she has been persistently neglected by the respondent since 1975.
10. It is fundamental principle of law that the discretion vested in a Court has to be exercised judicially, and, not arbitrarily. Thus, the discretion to grant maintenance, either from the date of order, or, from the date of the application, has to be exercised on some legal and cogent basis. Even in the authority in case Smt. Tripta v. Sal Parkash (supra) it was specifically mentioned that special reason for granting maintenance to the wife from the date of the application, was, that she had been persistently neglected by the husband since the year 1975. In the instant case the wife has been receiving maintenance at the rate of Rs. 75/- per month upto August, 1985, when, she moved application under Section 127 of the Code for enhancement of the amount of maintenance. In these circumstances it cannot be said that the wife had been neglected by the husband since the year 1975.
11. The wife moved application for enhancement of maintenance on 27tb August, 1985, and, the said application was disposed of by the trial Court on 1st August, 1987. However, there are no allegations on behalf of the wife that the proceedings under Section 127 of the Code, pending before the trial Magistrate, were delayed because of any laches on the part of the husband.
12. It is, thus, a fit case in which the Courts below ought to have granted enhancement of maintenance from the date of the order passed by the trial Court, and, not from the date of the application itself.
13. For the foregoing reasons, this petition is partly allowed to the extent that the enhanced maintenance allowance granted to the wife shall be effective from the date of the order of the trial Magistrate, i.e. Ist August, 1987, and, not from the date of the application. The excess amount, if any, paid by the husband to the wife, would be considered towards the payment of the balance amount of maintenance.
14. This petition is allowed accordingly.