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Bench: JUSTICE Malay Kumar Basu


Law Point:
Major Son not entitled to maintenance.





1. This revisional application is directed against the judgment and order dated 24th August, 2001 passed by the learned Additional Sessions Judge, 6th Court, Alipore in its revisional jurisdiction in Crl. Motion No. 209/2001. By the said order, the learned Additional Sessions Judge allowed the revisional application which was filed against the judgment and order passed by the learned Chief Judicial Magistrate, Alipore, dated 23th March, 2001 in T.R. No. 295/1999 whereunder the learned Magistrate allowed the petition under Section 125, Cr.P.C. in part awarding a sum of Rs. 1,200/- per month in favour of the wife with effect from the date of order i.e. 23rd March, 2001. Being aggrieved by that order, the wife had filed the said revisional application on the ground that the order ought to have taken effect from the date of application and not from the date of order. The learned Additional Sessions Judge accepted this contention of the revisional applicant wife and passed the impugned order by awarding the maintenance at the rate at which the learned A.C.J.M. awarded it giving its effect from the date of application instead of the date of the order. The learned Additional Sessions Judge also found that both the sons of the petitioner wife were minor being aged about 19 years and 15 years at the time of filing of the application and hence those two sons were found entitled to get maintenance till they attained majority.

2. Being aggrieved by this order, the husband has preferred this revisional application under Section 401 read with Section 482 of Cr.P.C. challenging the said order as illegal and improper.

3. In the first place, Mr. Ghosh contends that according to Section 125(2), Cr.P.C., the maintenance allowance is payable from the date of order, or if so ordered, from the date of the filing of the application for maintenance. According to Mr. Ghosh, in view of such style and language of the provisions, the Court below ought to have awarded the maintenance with effect from the date of order and if he took a different view and considered it necessary to award maintenance w.e.f. the date of application, then he was under an obligation to assign sufficient reason in support of such finding.

4. Giving careful consideration to this aspect of the argument, I am of the opinion that the Court below by not assigning any reason, of course, committed an act of impropriety since at the first instance, in view of legal provision he was so to consider the question of giving effect to the order of maintenance from the date of order but since he did not accept that course to be a prudent one, under the given circumstance he considered it fit to give effect to the order from the date of application, he must have put a few words by way of reason as to why he was not adopting the first course. But his omission to assign any such reason should not be carried to the extent of being taken as a ground for rendering the order liable to be set aside, if otherwise it is in order.

5. Mr. Das, learned Counsel for the opposite party, however, has cited a ruling of a Division Bench of this Court in the case of Sankar Prosad Ghosh v. Lakshmi Rani Ghosh, reported in 1998 Cr.LJ 101, wherein the said Division Bench of this Court held that the provisions of Sections 125 to 128 of the Code constitute a complete Code for itself and in the absence of specific direction that the allowance should be paid from the date of application, it would be from the date of order and there is no requirement to record reasons special or otherwise for passing an order with effect from the date of the application which was filed by the wife for maintenance and that section does not require recording of reason for awarding the maintenance from the date of the application and if the Court specifically orders payment of maintenance from the date of application, it is not necessary to record reasons in writing for such decision. But in the case under reference, the facts and circumstances were not identical with those relating to the present case. In that case in the order there was no express direction as to from which date the maintenance allowance should take effect and in such circumstances, Their Lordships came to hold that it would be taken to be from the date of order because under the provision of the section, such order is to take effect from the date of order at the first instance. In the present case, on the other hand there was a specific direction given by the Court of the first instance i.e. by the learned C.J.M. that the order of maintenance should take effect from the date of order. Against that specific order, the wife preferred the revisional application before the learned Sessions Judge praying for revising the order so as to make it effective from the date of application and the learned Sessions Judge after considering all the materials on record allowed her prayer and gave effect to the order from the date of application. So clearly the present case cannot be said to be on all fours with the case under reference and hence what was enjoined there by the Division Bench of this Court cannot be blindly followed in the present case.

6. In my view, since the course which is provided under the law at the first instance is not being followed and since following of alternative course will involve giving of some benefit to one party and depriving the other party of some benefit, it is in the interest of propriety that reasons should be assigned in support of taking of such alternative course. So far as that question is concerned, although the Court below has not given reason I find that there will be sufficient justification for coming to such a finding. The wife filed the application as far back as in the year 1994 with an expectation that she would get maintenance as prayed for on that very day, but hearing of the matter was delayed and ultimately it came to be taken up at the long last in 2000 i.e. after the passage of 7 years and if the petitioner is otherwise found to be entitled to such benefit, question will arise as to why then she should not be given this benefit during the period throughout which that petition has been pending before the Court without being disposed of. In other words, there was no justifiable ground for which she can be kept deprived of getting this benefit for such a long period. To put it in a different language, in such an event his getting the benefit will depend on sheer chance and accident, that is to say, if the petition could be taken up for hearing by the Court immediately after the filing thereof and she was found entitled, then she could have reaped the harvest of benefit 7 years ago. But simply because accidentally the petition was not taken up so early, the complexion of the consequences would be otherwise. That apart, there is another aspect of the matter. If such a view is accepted, that may set a dangerous trend. Cases may appear in leaps and bounds where the husbands would exploit such a dictum by deferring the hearing of the matter to the greatest extent possible. In view of these reasons there will be absolutely no justification to come to a finding that the maintenance to which the wife is found entitled should not be awarded with effect from the date of application.

7. So far as the question of payment of maintenance to the sons is concerned with the finding of the Court below it is palpable that of the two sons, elder one was a major at the time of filing of petition. Therefore, he cannot be entitled to get maintenance under Section 125, Cr.P.C. The finding of the Court below in respect of the elder son is palpably wrong and be set aside. However, as regards his contention regarding her second son it appears that he was aged about 15 years at the time of filing of the petition. So it cannot be disputed that her second son was very much entitled to get benefit of Section 125, Cr.P.C. Therefore, the order of maintenance in respect of him is free from any error.

8. In view of the finding above this revisional application is allowed in part. Finding of the learned Additional Sessions Judge that the award of maintenance should take effect from the date of application be affirmed. His further finding of the maintenance being awarded to second son for the period till he attains the age of majority is also upheld. However, his finding that the elder son shall be entitled to maintenance for the period of his minority be set aside because he was no longer a minor since when the petition was filed by his mother.

9. With the above observations, this revisional application is disposed of.

10. There will be no order as to cost.

11. Let urgent Xerox certified copies of this order be given to the parties as early as possible, if applied for.

Ordered accordingly.

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