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SURENDRA SINGH Vs. SHAKUNTALA DEVI & ORS.

Judgements favoring men

 
Court: UTTRANCHAL HIGH COURT

Bench: JUSTICE J.C.S. Rawat

SURENDRA SINGH Vs. SHAKUNTALA DEVI & ORS. On 8 June 2006

Law Point:
Effective date of payment for maintenance, Date of order in normal circumstances however, in extraordinary circumstances it may be ordered to be paid from date of application. Court below gave no reason for allowing interim maintenance from date of application. Impugned order modified to extent that husband will pay interim maintenance from date of order and not from date of application.

 

 

JUDGEMENT

 

This writ petition has been filed with the prayer to issue a writ, order or direction in the nature of certiorari quashing the impugned judgment and orders dated 29.3.1993 and 9.1.1992 passed by the Sessions Judge, Chamoli, Gopeshwar and Chief Judicial Magistrate, Chamoli, Gopeshwar respectively (Annexure I and II).

2. Brief facts of the case are that on 5.8.1987 the respondent No. 1 Smt. Shakuntala Devi filed an application before the Magistrate under Section 125, Cr.P.C. against her husband-Surendra Singh. It was alleged in the application under Section 125, Cr.P.C. that the marriage was solemnised in between the respondent No. l and petitioner in the year 1982. Thereafter, she was discharging her matrimonial obligations towards the petitioner and she was residing with him. Later on, when she fell ill and the petitioner asked her parents to take in their house for medical treatment. Thereafter, the petitioner took her back to her parental house. The petitioner did not take her back to her matrimonial house and did not pay any maintenance allowance. As such, the petitioner had neglected to maintain his wife. It was further alleged that the petitioner is a Government employee and he earns Rs. 1400-1500 per month and apart this, he also earns a handsome money from the agricultural land. The respondent No. 1 had claimed Rs. 500 p.m. as maintenance.

3. The written statement was filed by the petitioner denying all the averments made in the application filed under Section 125, Cr.P.C. The petitioner had further stated in the written statement that he is ready to take her back to his house, but his wife is not ready to come to discharge the matrimonial obligations and as such the application for maintenance may be rejected.

4. The parties were directed to adduce their evidence in support of their evidence. The respondent No. 1 had examined himself as PW1 and she supported the averments made in the application under Section 125, Cr.P.C. She had also stated that the petitioner had filed the suit for dissolution of marriage. The petitioner had not adduced any evidence in rebuttal.

5. After appreciation of evidence on record, vide order dated 9.1.1992 the learned Magistrate allowed the application under Section 125, Cr.P.C. and the petitioner was directed to pay maintenance to his wife @ Rs. 400 p.m. from the date of filing of application for maintenance i.e. 5.8.1987. Feeling aggrieved by the order of the learned Magistrate, the petitioner preferred a revision before the Sessions Judge and the same was dismissed on 29.3.1993. Feeling aggrieved by this, the writ petition before this Court.

6. At the outset, I would like to mention here that the petitioner could have filed a petition under Section 482, Cr.P.C., but the petitioner had not taken the recourse to file the petition under Section 482, Cr.P.C. As such, the present writ petition is not maintainable because the efficacious remedy under Section 482, Cr.P.C. was available to the petitioner. The matter is very old and the parties are prosecuting this petition since 1993. Both the Courts below had given concurrent finding. It would not be just and proper to dismiss this petition only on the ground of maintainability. I do not find any merit in the petition. The concurrent findings had been given by both the Courts below. The petitioner had sufficient means to pay maintenance. He had neglected to maintain his wife. 1 am completely in agreement with the findings recorded by the Courts below in this regard.

7. Learned Counsel for the petitioner had not challenged the propriety of the findings recorded by both the Courts below. The wife had proved in her evidence that the petitioner had sufficient means to pay the maintenance and he had neglected to maintain her. The wife appeared before the Court below as PW1 and she supported the averments made in the application under Section 125, Cr.P.C. It has been amply proved by the evidence that after solemnisation of marriage the respondent No. 1-wife was discharging her matrimonial obligations and when she fell ill her husband asked her parents to take her in their house. The respondent No. 1 was sent to her parental house for few days. After some time, the parents of respondent No. 1 requested the petitioner to take her wife back, but the petitioner did not pay any heed to their request and she was not taken to her matrimonial house in spite of repeated requests. The maintenance was demanded but no maintenance was given by the petitioner. The respondent No. 1-wife had stated in her evidence that her husband earns Rs. 1400-1500 p.m. and he also earns handsome money from the agricultural land. The said statement is unrebutted and as such the evidence of respondent No. 1 is believable. Both the Courts below had given the concurrent findings. It is pertinent to mention here that the petitioner-husband had filed a petition for dissolution of marriage. The evidence of petitioner was recorded in the petition regarding dissolution of marriage and the petitioner has specifically stated that he is not ready to take her back and as such the said evidence was also considered by both the Courts below. In view of the above, I am completely in agreement with the findings recorded by both the Courts below. The petitioner had sufficient means to pay maintenance. He had neglected to maintain her wife.

8. Learned Counsel for the petitioner has only contended that the Court below has awarded the interim maintenance from the date of filing of application and not from the date of its order. It was further contended that no reason has been given for awarding the interim maintenance from the date of application filed by the wife. Learned Counsel for the petitioner contended that if the Court below was intended to award the interim maintenance from the date of application, the Court should have recorded its reasons for doing so. Section 125(2), Cr.P.C. provides as under:

“Any such allowance for the maintenance or interim maintenance and expenses for proceeding shall be payable from the date of order, or, if so ordered, from the date of the application for maintenance or interim maintenance and expenses of proceeding, as the case may be.”

9. From perusal of the Sub-section 2 of Section 125, Cr.P.C. reveals that in the normal circumstance the maintenance must be given from the date of order and in case of extraordinary circumstances it may also be ordered to be paid from the date of filing of application. The Court below should have discussed about such circumstances in which the interim maintenance was awarded from the date of filing of application. No other inference is permissible from the language of Sub-section 2. The Court below had not given any reason for allowing the interim maintenance from the date of application. As such, I am inclined to accept the contention of the petitioner. Therefore, the impugned order is modified to the extent that the husband-Surendra Singh will pay the interim maintenance from the date of impugned order and not from the date of application.

10. The petition is disposed of accordingly. All the pending miscellaneous application(s) in this case, if any, shall stand disposed of accordingly.

Petition disposed of.

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