ORDER
M. Karpagavinayagam, J.
1. The order granting maintenance of Rs. 300/- to the first respondent, wife and Rs. 200/- each to the second the third respondents, the children from the date of application i.e. from 7-3-1994 passed in M.C. No. 4 of 1994 on the file of Judicial Magistrate, Thuraiyar is challenged by the husband, the petitioner herein in this revision before this Court.
2. The facts are the following:-
The first respondent married the petitioner on 6-3-1985 in the presence of elders in the Sivan koil at Kubbampatti. Out of the said wedlock the second respondent was born on 20-3-1986. Ex. P1 is the birth register. The third respondent was born on 22-6-1988. The birth register is Ex. P2. Though initially they lived happily, the petitioner began to harass the wife asking her to get money and jewels from her parents’ house. Since the said unlawful demand was not complied with, the respondents were beaten and driven away from the matrimonial home. Six months prior to this application claiming maintenance she gave a complaint to the Women Dowry Wing at Trichy regarding the harassment of the petitioner and requested the police to arrange for reunion. However, during the police enquiry, the petitioner/husband refused to take her despite the advice given by elders as well as by the police. According to the wife, the petitioner is working as a Tanker lorry driver earning about Rupees 3000/- per month besides owning properties of seven acres belonging to his father. On this basis she claimed maintenance of Rs. 500/- for herself and Rs. 400/- for the children each. In order to prove her case, she filed Exs. P1 and P2, the birth registers of the children Exs. P.3 and P.4 voters’ list. The evidence of PW-1 was corroborated by the evidence of her uncle PW-2, Muthusamy and independent witness PW-3, Palaniappan.
3. On the side of the petitioner, the petitioner examined himself as R.W. 1 and two other witnesses. The plea of the husband is that he never married the first respondent and that the children were not born to him and that factually she was kept as a concubine by his uncle Ramasamy and only out of that connection the two children were born.
4. On consideration of the materials, the lower Court concluded that the wife has made out a case for claiming maintenance for herself as well as for her children and awarded maintenance of Rs. 300/- for the wife and Rs. 200/- each to the children. On being aggrieved over the impugned order, the present revision has been filed before this Court.
5. Mr. Bhaskar, the learned counsel representing M/s. Ram and Ram appearing for the petitioner would submit the following contentions:-
The lower Court did not appreciate the evidence properly and the factum of marriage between the petitioner and the first respondent was not actually proved. The first respondent has not adduced any evidence through independent witness or documentary proof for the alleged marriage. The birth registers Exs. P1 and P2 and Exs. P3 and P4 Voters list filed by the wife would not be sufficient to hold that both are living together as husband and wife and children were born out of the valid marriage. At any rates, in the absence. of any reason, the learned Judicial Magistrate has committed a grave error in awarding the maintenance from the date of the application instead of awarding the maintenance impugned from the date of the order. In support of his submission the learned counsel has cited various authorities.
6. The Apex Court has held in Pathumma v. Muhammed , that the factual finding given by the lower Court which conducted enquiry with reference to the validity of the marriage and paternity of the children cannot be disturbed in the revision. In the light of the said principle, it is clear, on perusal of the judgment and the depositions that the wife has proved the marriage as well as the paternity of the children and as such, I do not find any merit with reference to the said point, especially when I come to the conclusion that the reasonings given by the lower Court are correct to conclude that the respondents are entitled to the maintenance, as the marriage as well as the fact that they were living together and out of the said access and association these children were born have been proved.
7. As regards the other point, the question arises as to whether the Magistrate could pass an order awarding maintenance from the date of the application for maintenance, in the absence of any reason? Mr. Bhaskar would vehemently argue this point on the strength of the unreported judgments rendered by me in Crl. R.C. No. 573 of 1994 dated 18-1-1997. He also cited following judgments in support of his submission.
1. Ku. Kuchhmani v. Ramu 1983 (1) Crimes 590 (Madras)
2. Dharmendra Kumar Gupta v. Chandra Prabha Devi 1990 Cri LJ 1884 (All).
3. Krishna Jain v. Dharma Raj Jain 1992 Cri LJ 1028(Madh Pra)
He would contend that normally the learned Judicial Magistrate has to award maintenance only from the date of the order, as it is clear from the reading of the Section. Therefore, according to the counsel for the petitioner, the order awarding maintenance from the date of application without any reason is liable to be set aside. He requested that the said order could be modified to be effective from the date of the impugned order.
8. In reply to the said submission, Mr. R. Babu representing Mr. A.K. Kumarasamy, the learned counsel for the respondents, in equal vehemence would submit that failure to give reasons to pass an order to make it become effective from the date of application would not affect the validity of the order because whenever the wife approaches the Court claiming maintenance the lower Court has to necessarily go into materials adduced by the wife, in order to decide whether she was not able to maintain herself on the date of the application itself and that therefore, there is no necessity to give any separate reason in the order and as such the order impugned is perfectly valid and the same has to be upheld. He also cited the following judgments on his side.
1. Lokesh Parameswar Uchil v. Lekha Uchil 1995 Cri LJ 1661 (Kerala) and
2. Nachhattar Singh v. Harijinder Kaur 1995 Cri LJ 2726 (Punj & Hry).
9. I have carefully considered and given my anxious consideration to the submissions made by the respective counsel.
10. The reading of Section 125(2) of Criminal Procedure Code would clearly show that there is a discretion vested upon the Magistrate in deciding the question as to whether allowance shall be payable from the date of the order or from the date of the application. Section 125(2) reads thus:-
Such allowance shall be payable from the date of the order, or, if so ordered, from the date of the application for maintenance.
So, the reading of the Section would clearly go to show that it is for the learned Magistrate to decide as to whether the order becomes effective or become operative from the date of the order or from the date of the application.
11. In my view, merely because of the wordings “from the date of the order” mentioned in the first part of the said section, it cannot be said that the learned Judicial Magistrate should straightway order for the maintenance from the date of the order. Similarly, merely because the wordings “from the date of the application for maintenance,” appeared on the latter portion of the section, it cannot be said that the reason is to be given only for the category mentioned latter and not for the category mentioned earlier.
12. Admittedly, there are two courses. For adopting one of the courses the lower Court has necessarily to exercise its discretion with a judicial approach. It is clear that it is purely the discretion of the Court to grant maintenance from a particular date. The facts and circumstances of each individual case are to be taken into consideration while passing such an order. Therefore, when there are two eventualities, the Court has necessarily to exercise its judicial discretion and come to the reasoned conclusion by giving the reasons in the order. That alone would reflect the judicial application of mind by the Court on the facts and circumstances of the case. Therefore, there is no quarrel in the proposition that there must be reasons for ordering the allowance of maintenance which would be operative from a particular date.
13. However, the question raised in this case is “merely because no reasons were given by the Magistrate, could it be taken that order becomes effective from the date of the order but not from the date of the application?”. To this question, my answer is emphatic ‘no’. The wife approaches the Court claiming maintenance by filing the application on the ground that she is not able to maintain herself. During the enquiry she has to prove her inability to maintain herself and children even from the date of the application. When the Court ultimately decides that’ she is entitled to be maintained after conducting enquiry, then the said decision must necessarily be based upon the material showing that the wife is unable to maintain for herself from the date of the application. Once such a conclusion is arrived at, then, in my view, normally the, learned Magistrate has to pass order directing the maintenance from the date of the application. Of course, even for such an order the reasons are to be given, in order to show that the discretion has been properly exercised.
14. The meaning of the wordings of Section 125(2) of Criminal Procedure Code has to be understood, in the light of the scope and object of the provisions of Section 125 of Criminal Procedure Code. The object behind the benevolent provision is to prevent vagrancy and ensure that the destitute women and neglected children are provided promptly with sustenance. Section 125 of Criminal Procedure Code is meant to achieve a social purpose. When a similar question had been raised before this Court, this Court ordered in Crl. R.C. No. 567 of 1997 dated 27-8-1998 reported in (1982) 2 Mad LW (Cri) 614 with the following observation:
When the unfortunate wife knocks at the doors of the Court in the event “of her being not able to maintain herself and when the Court finds her entitlement, certainly such maintenance could be ordered with effect from the date on which she approached the Court with an application under Section 125 of Criminal Procedure Code. Mere non-mentioning of the reason for making the order operative from the date of application, would not automatically invalidate the order.” So, in view of the conclusion of mine in the said order and the views expressed contrary to the said view in the judgments rendered by other Courts as referred to above, I am of the opinion that the impugned order is correct in holding that the first respondent and the respondents 2 and 3 are entitled to the maintenance from the date of the application. However, it must be made clear that the learned Magistrate should have given some more reasons to arrive at such a conclusion. For example, if the wife gets interim maintenance during the pendency of the application as per order of the Court, then the learned Magistrate would very well say that the final order would come into effect from the date of the order. If there is no such interim order by which the wife and children were not able to maintain themselves with the said maintenance, then order awarding maintenance from the date of the order is acceptable. In that view of the matter, the learned Judicial Magistrate is correct in holding that the respondents are entitled to maintenance. The reasons like this could have been given in the impugned order, as indicated earlier. However, if there is no reason for coming to the conclusion that order becomes operative from the date of the application as stated above, the failure to record the reason for the same would not affect the validity of the order, since, in my view, the respondents have established before the lower Court that they were not able to maintain themselves from the beginning even prior to the filing of the application.
15. In this context, it shall also be pointed out that though this Court, while admitting the revision, passed a conditional order of stay directing the petitioner to pay entire arrears, the petitioner has not chosen to comply with the order for the reasons best known to him. The Counsel for the petitioner is also not able to give those reasons. However, since I see no merit in the revision, the revision is liable to be dismissed and accordingly dismissed. Consequently, Crl. M.P. No. 280 of 1998 is also dismissed.