Posted On by &filed under High Court, Orissa High Court.


Orissa High Court
Kanhu Charan Jena vs Smt. Nirmala Jena on 28 September, 2000
Equivalent citations: II (2001) DMC 505
Author: P Misra
Bench: P Misra


ORDER

P.K. Misra, J.

1. Both these cases have been filed by the husband challenging the legality of the order of maintenance passed in favour of the wife. The opposite party had filed an application under Section 125, Code of Criminal Procedure. The Magistrate after negativing the plea of the husband and accepting the plea of the wife directed for payment of maintenance at the rate of Rs. 500/- per month from the date of the order. Against the aforesaid order, the present opposite party filed Criminal Revision No. 25/98 before the Sessions Judge, Khurda, mainly on the ground that the Magistrate should have directed for payment of maintenance from the date of application and not from the date of the order. The aforesaid contention was accepted by the Sessions Judge, who directed that such maintenance should be paid from the date of the application. This order is being challenged in Criminal Misc. Case No. 451/99. The husband has also filed connected Criminal Revision No. 385/98 challenging the order of the Magistrate directing payment of maintenance. In the said revision, it is contended that no maintenance should have been directed to be paid and, at any rate, payment of Rs. 500/- per month appears to be excessive.

2. In the objection before the Magistrate, the husband had alleged that the wife was living in adultery. However, the Magistrate on discussion of materials on record has discarded such a plea of the husband. The learned Magistrate has considered the relevant materials on record to come to the conclusion that the wife is entitled to get maintenance. I hardly find any reason to interfere with such finding of the Magistrate.

3. The learned Counsel for the petitioner then contended that payment of Rs. 500/- per month appears to be excessive. It is not disputed that the husband is working as a Senior Wireman under the Orissa Mining Corporation, Bhubaneswar. In his objection, he had stated that he was drawing a salary of Rs. 3,500/-. But according to the evidence adduced on behalf of the wife, the husband was getting higher salary. Even assuming that the husband was receiving a salary of Rs. 3,500/- per month, payment of Rs. 500/- per month towards maintenance cannot be characterized as excessively high so as to warrant interference in revision.

4. Learned Counsel for the petitioner further submitted that the Sessions Judge should not have directed payment of maintenance from the date of the application. Ordinarily, if maintenance is granted, direction is usually given for payment of maintenance from the date of the application. Where, however, some interim maintenance is paid, subsequently the Court may direct that maintenance as decided in the final order may be paid from the date of the final order. Similarly, where the case is unnecessarily lingered, due to. laches of the wife, the Court may for justifiable reason direct that payment of maintenance should be from the date of order and not from the date of application. No hard and fast rule can be laid down on this aspect and the matter is essentially one of discretion of the Court. In the present case, the Magistrate has not given any reason as to why maintenance is to be paid from the date of the order and not from the date of application. The Revisional Court has considered this aspect and has directed that maintenance should be paid from the date of application. While exercising jurisdiction under Section 482, Code of Criminal Procedure, there is hardly any scope for interference with such discretionary order of the Revisional Court.

5. It is stated by the Counsel for the petitioner that on 18th September, 2000, a sum of Rs. 6,000/- has been paid towards arrears maintenance. The petitioner shall go on paying a sum of Rs. 500/- towards current maintenance and a sum of Rs. 300/- towards arrears maintenance till the arrears are cleared.

6. Subject to aforesaid direction, the criminal misc. case and the criminal revision are disposed of.


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