IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CRIMINAL APPLICATION No 479 of 1994
For Approval and Signature:
Hon'ble MISS JUSTICE R.M.DOSHIT
============================================================
1. Whether Reporters of Local Papers may be allowed
to see the judgements?
2. To be referred to the Reporter or not?
3. Whether Their Lordships wish to see the fair copy
of the judgement?
4. Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India, 1950 of any Order made thereunder?
5. Whether it is to be circulated to the Civil Judge?
————————————————————–
1.MER MANIBEN SIDIBHAI & 2 OTHERS
Versus
1.MER VIKRAM SAJAN & 1 ANOTHER
————————————————————–
Appearance:
MR RC KAKKAD for Petitioners
MR YS LAKHANI for Respondent No. 1
MR ST MEHTA Addl. PP for the State.
————————————————————–
CORAM : MISS JUSTICE R.M.DOSHIT
Date of decision: 07/02/97
ORAL JUDGEMENT
The short question that arises in this petition
is whether the maintenance awarded to the petitioners
under section 125 of the Criminal Procedure Code, 1973
shall be awarded from the date of the application or from
the date of the order.
2.Petitioner No.1 was being ill treated by
respondent No. 1. On 5th August, 1987, petitioner No.1
was driven out of her matrimonial home and she,
therefore, went to her parents at Ranavav. On the next
day i.e. 6th August, 1987, respondent No.1, his brother
and few others went to Ranavav and informed the
petitioner No. 1 and her parents that respondent No. 1
was not ready and willing to accept petitioner No. 1 and
to cohabit with her. He, however, agreed to pay
maintenance to the petitioners. An agreement was drawn
on the same day and under the said agreement, respondent
No. 1 agreed to pay Rs. 600/every month to the
petitioners by way of maintenance. Respondent No. 1
paid the maintenance for three months and, thereafter,
stopped paying the said amount of maintenance.
Petitioners were, therefore, constrained to file
application under section 125 of the Criminal Procedure
Code for maintenance from respondent No. 1. Said
application being Criminal Miscellaneous Application No.
586 of 1987 was presented before the Court of 30th
November, 1987. Said application was finally allowed by
the learned Judicial Magistrate, First Class, Porbandar
under his judgment and order dated 31st March, 1993.
Learned Magistrate awarded a sum of Rs. 600/- for
maintenance of the petitioners. The Court, however, held
that the petitioners had not claimed that such
maintenance be awarded from the date of the application
and, therefore, he directed that the amount of
maintenance be paid to the petitioners from the date of
the order.
3.Feeling aggrieved, the petitioners preferred
Criminal Revision Application No. 11 of 1993 before the
learned Sessions Judge, Porbandar who, under his judgment
and order dated 8th December, 1993, has recorded that the
delay in disposing of the application made under section
125 of the Code was caused to some extent for
administrative reasons and also on account of respondent
No. 1. It has been noted that respondent No. 1 did not
remain present before the Court on several occasions. He
examined himself on 29th November, 1991 and other
witnesses in his support on 2nd January, 1993. However,
the Court held that since the petitioner had not made a
prayer that the amount of maintenance be paid from the
date of the application, learned Magistrate had rightly
made award effective from the date of the order. Feeling
aggrieved, the petitioners have preferred this petition
before this Court.
4.It is true that under section 125 (2) of the
Code, maintenance would be payable from the date of the
order. However, discretion has been conferred upon the
trial Judge to make such maintenance payable from the
date of the application for maintenance. Thus, it is the
discretion of the trial Judge to award maintenance either
from the date of the application for maintenance or from
the date of the order. However, such discretion is
required to be exercised judiciously. In the present
case, I am of the view that the Courts below have wrongly
refused the maintenance from the date of the application
on the ground that there was no such prayer. It is
undisputed that respondent No. 1 was liable to pay
maintenance to the petitioners since 6th August, 1987,
the date of the agreement. However, he did not respect
the said agreement and neglected to pay the maintenance.
It was in the said circumstance that the petitioners had
to make an application for maintenance. Respondent No.
1 has avoided to attend the proceedings before the
learned Magistrate. Thus, substantial delay has been
caused in disposing of the application under section 125
of the Code on account of respondent No. 1. The
petitioners should not be made to suffer on account of
such unsavoury behaviour of the respondent No.1. I,
therefore, consider it fit to interfere with the orders
of the Courts below and direct that the maintenance
awarded to the petitioners herein by the learned Judicial
Magistrate, First Class, Porbandar under his judgment and
order dated 31st March, 1993 made on Criminal
Miscellaneous Application No. 586 of 1987 shall be
payable from the date of the application for
maintenance.The judgment and order of the learned
Additional Sessions Judge, Porbandar passed in Criminal
Revision Application No. 11 of 1993 is quashed and set
aside.
5.Petition is allowed accordingly. Rule is made
absolute. Respondent No. 1 is directed to pay the
arrears of maintenance as directed hereinabove within the
period of three months from to day. Writ shall be sent
forthwith.
/////
Vyas