JUDGMENT
Barkat Ali Zaidi, J.
1. A Magistgrate (Judicial Magistrate-1st Class, Hamirpur) in Criminal Misc. Application No. 50 of 1997) refused to grant maintenance to respondent wife under Section 125 Cr.P.C. The revising Court, (Addl. Sessions Judge in Crl. Revision No. 44 of 1999) reversed the order and granted maintenance of Rs. 500/- per month.
2. I have heard Sri Sudha Shanker Verma, learned Counsel for the applicant and Sri R.D. Yadav, learned Addl. Government Advocate for the State.
3. Long and rambling judgments have been written by the Magistrate and the revising Court.
4. The Trial Court held that there had been a customary Divorce called ‘ CHUTTA CHUTTI’ and the marriage stood terminated and the wife respondent married another person Malkhan Singh.
5. The applicant initially sought maintenance for the son and daughter, but it is now agreed, that the daughter is already married, and the son is major, and the question of granting maintenance to them does not arise on this ground. There is no controversy and the only question is to grant maintenance to the wife-respondent.
6. Neither the Trial Court nor the Revisional Court specified in their orders that the contention of customary Divorce as ‘ Chutta Chutti’ was unacceptable on the basis of the well established principle that custom cannot override the written Law. A Divorce could be acceptable only if it was brought about in accordance with the provisions of Hindu Law which was applicable to the parties. The fact of marriage being admitted, it should therefore, be presumed that the wife-respondent continues to be the legally wedded wife of the Husband-applicant. The question of any entries in the voter list or the Family Register are irrelevant in view of this legal proposition.
7. There can also be no controversy that the respondent-wife is living separately for a quite long period with her father. No wife will
ordinarily and naturally leave her husbands house which according to Indian Traditions, is the sacred abode of the lady. It is only when she is forced to leave by circumstances or is turned out of the house, that she reluctantly retires back to her parental Home. Such an assumption may even be made under Section 114 of the Evidence Act.
8. It will, therefore, need strong evidence from the side of husband to show that the wife deliberately relinquished residence and went away of her own Will. No such reliable evidence can be gathered from the material available on record in this case.
9. As to the allegation about the adulterous relations of the wife- respondent with the person named Malkhan, it is easy to hurl such allegations, but they are not easy to prove. There should be positive evidence and clear circumstances pointing to such involvement which are missing in this case. The mere fact that the name of wife-respondent is mentioned in the Voter list as the wife of Malkhan relied upon by the TrialCourt, cannot be considered sufficient to establish adulterous relations between wife respondent and Malkhan.
10. The revising Court was, therefore, justified in its findings about these matters, and about the fact, that the wife is entitled to maintenance.
11. One more question which remains to be considered is about the date from, which maintenance is to be granted. The respondent was granted maintenance from the date of application and the contention of the counsel for the husband is that unless there are special reasons, the normal order should be, for grant of maintenance, from the date of the order.
12. Reference was made, in this connection, by the counsel for the Husband-applicant to the case of
Samaydin v. State of U.P. A.C.C. 2001 (42), 487 wherein it has been held, that in normal circumstances, the maintenance should e granted from the date of order and it is in only extra ordinary circumstance that it should be ordered to be paid from the date of application.
13. The revising Court has mention reasons for granting maintenance from the date of the application and the reasons given cannot be said to be incongruous or insufficient and the order must, therefore, be upheld. However, it would be appropriate to allow the husband to pay the arrears in four instalments within a year. The wife would also be entitled to withdraw the amount already deposited by Husband under orders (2.7.2002) of this Court. As ordered by Revising court, the Husband will also continue to pay to the wife Rs. Five hundred per month.
14. With the above observations, this petition is disposed of finally.
15. Registry will dispatch it’s copy to District Judge, Hamirpur for sending it to Judicial Magistrate for information and compliance.