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Judgment
This Miscellaneous Criminal Case has been filed under Section 482 of Cr.P.C. against the order dated 06.05.2016 passed by Additional Sessions
Judge, Chhindwara in Criminal Revision No. 1700048/2015 whereby Additional Sessions Judge affirmed the order dated 03.03.2015 passed by
Additional Chief Judicial Magistrate, Parasiya, Chhindwara in M. Cr.C. No. 97/11 in which ACJM Paraisya directed the petitioner/non-applicant to
pay Rs. 3000/- per month to respondent-complainant no. 1 and Rs. 2000/-per month to respondents no. 2 and 3 each as maintenance.
Facts of the case, in short, are that respondent no. 1-complainant filed a petition under section 125 of Cr.P.C. It is alleged that marriage of
respondent no. 1 Tabassum was solemnized on 24.04.1998 with petitioner/non-applicant, thereafter respondent no. 1 was blessed with three children
Rayma, Alfiza and Ubesh, thereafter petitioner/non-applicant solemnized second marriage with one Sarika Rai on 20.04.2001. Petitioner/ non-applicant
left the respondent-complainant without any reasonable cause and petitioner/non-applicant has taken Rayma from respondent no. 1. Respondent no. 1
has no source of income but petitioner/non-applicant has sufficient source of income. So petitioner/ non-applicant is liable to pay Rs. 50,000/-per month
as maintenance to the respondents.
Petitioner/non-applicant filed reply before the trial court. It is alleged by him that parents of respondent-complainant no. 1 is not ready to accept the
marriage of non-applicant/petitioner and respondent no. 1/complainant because it is a inter-caste marriage, so on 27.07.1999 divorce deed was
executed by both the parties and both parties had taken divorce. Petitioner/non-applicant has paid Rs. 50,000/- as maintenance to the respondent no. 1.
Respondent no. 2 and 3 are not his children because petitioner /non-applicant had no relation with complainant-respondent no. 1 since 1999.
Respondent no.1/complainant has already filed a petition under Section 125 of Cr.P.C. It is alleged in that petition that petitioner/non-applicant is a
labour and his earning is Rs. 5000/- per month although complainantâ€" respondent no. 1 alleged in her previous petition that petitioner/ non-applicant
is earning Rs. 10,000/- per month from money laundering business but in this petition respondent no.1â€"complainant alleged that petitioner’s
income is 33, 00,000/- So petitioner/non-applicant does not have sufficient means of income. He has not solemnized another marriage. He has other
responsibilities so he is not liable to pay any maintenance to the respondent-complainant.
Both the parties adduced the evidence before the trial court, thereafter the trial court held that respondent no. 1 is the wife of petitioner/non-
applicant and respondent no. 2 and 3 are his children. They have no sufficient source of income. Petitioner/ non-applicant has sufficient means of
income, so learned trial court directed the petitioner to pay maintenance of Rs. 3,000/-per month to respondent no. 1 and Rs. 2000/- per month to
respondents no. 2 and 3 each from the date of filing of application. Petitioner/non-applicant filed revision against this order before Additional Sessions
Judge. Additional Sessions Judge dismissed the revision petition presented by the petitioner/non- applicant and affirmed the order of trial court.
Learned counsel for the petitioner submits that learned Lower Court as well as Revisional Court has erred in law while passing the impugned order
dated 06.05.2016 and order dated 03.03.2015. At the time of passing of impugned order, learned court below did not appreciate oral and documentary
evidence. Learned court below awarded maintenance amount on higher side which is liable to be reduced because petitioner/ non-applicant has
responsibility of his parents, wife, sisters and three children. Learned court below also erred in granting the maintenance from the date of filing of
application of maintenance. Learned court below has not mentioned the reason for granting maintenance from the date of filing application.
Petitioner/non-applicant has denied that respondents no. 2 and 3 are his children but court below has not directed DNA Test, so on the sole ground,
the impugned order is liable to be quashed. He cited the order dated 08.01.2020 passed by this court in M.Cr.C. No. 3542/2019 (Amit Verma Vs.
Smt. Sangeeta Verma & others).
Learned counsel for the respondent submits that the order of court below is based on facts and proper appreciation of evidence and legal principle
of law, so interference is not warranted.
Heard both the parties and perused the record.
It is not disputed that marriage of complainant-respondent no. 1 was solemnized with petitioner/ non-applicant, although it is alleged by the
petitioner/ non-applicant that this is a inter-caste marriage. Respondent no. 1 is by caste Muslim and petitioner is Hindu, therefore, parents did not
accept this marriage so both parties executed a deed of divorce and they had taken divorce in 1999 but petitioner/ non-applicant did not produce any
documentary and oral evidence in this regard. So it cannot be held that petitioner/ non-applicant had taken divorce from the complainant/ respondent
no. 1. so respondent no. 1/complainant is the wife of petitioner/ non-applicant. It is not disputed that the marriage was solemnized by Special Marrige
Act.
Learned counsel for the petitioner/non-applicant submits that respondents no. 2 and 3 are not his children but petitioner/ non-applicant did not
produce any evidence in this regard. He did not request to the trial court for DNA Test. Respondent produced oral and documentary evidence in this
regard i.e. birth certificate of respondents no. 2 and 3 Ex. P.3 and P/4 Progress report is ex. P/5 and P/6. In these report, the name of petitioner/ non-
applicant is mentioned as father of respondent no. 2 and 3, so prima facie it appears that petitioner/ non-applicant is father of respondent no. 2 and 3.
It is evident from the record that there is no source of income of respondent no.2 so petitioner/ non-applicant is liable to pay the maintenance to the
respondents. It is also alleged by the petitioner/ non-applicant that awarded maintenance is very excessive. Learned trial court directed the petitioner
to pay the maintenance to the respondents from the date of filing of application but learned trial court did not assign any reason in this regard. It is
evident from the record that petitioner/ non-applicant bought agricultural land from one Dinesh Kumar Rai in 2007 for consideration of Rs. 4,19,000/-.
He also got mining patta from the Collector Office (Mining) District Chhindwara in 2009. He also filed a petition under Section 138 of Negotiable
Instruments Act against one Nitin Chouksey. It is alleged in that petition that petitioner/ non-applicant is owner of one JCB registration NO. MP-
28/JB- 0267 and he gave that on rent to one Nitin Chouksey @ Rs. 1,50,000/- per months, so it is evident that Petitioner non-applicant has sufficient
means of income so in this regard learned court below did not commit error in award of maintenance so it is not excessive. It is true that learned trial
court did not assign any reason to award maintenance from the dat of filing of application. Hon’ble Supreme Court in the case of Shail Kumari
Devi and another Vs. Krishna Bhagwan Pathak AIR 2008 SC 3006 has held as under:-
“43. Our attention was also invited to a decision in K. Sivaram v. K. Mangalamba & Ors., 1990 CrLJ 1880 (AP). In K. Sivaram, a single Judge of the High Court of
Andhra Pradesh negatived the argument on behalf of the husband that the maintenance could be awarded from the date of the order and such maintenance could be
granted from the date of the application only by recording special reasons. The Court held that it is the discretion conferred on the Court by the Code to award
maintenance either from the date of the order or from the date of the petition as per the circumstances of the case. The Code also noted that wherever Parliament
wanted special reasons to be recorded for passing a particular order, specific provision has been made to that effect [See sub-section (3) of Section 167 of the Code
(default bail), Section 361 (refusal to grant probation) etc].
In our considered opinion, the High Court is not right in holding that as a normal rule, the Magistrate should grant maintenance only from the date of the order
and not from the date of the application for maintenance. And if he intents to pass such an order, he is required to record reasons in support of such order. As
observed in K. Sivaram, reasons have to be recorded in both the eventualities. The Court was also right in observing that wherever Parliament intended the Court to
record special reasons, care had been taken to make such provision by requiring the Court to record such reasons.
Moreover, duration of litigation is not within the power or in the hands of the applicant and entitlement to maintenance should not be left to the uncertain date of
disposal of the case. Keeping in view this hard reality, this Court in Savitri held that in absence of prohibition to grant `interim' maintenance such power could be read
in the salutary provision of Section 125 of the Code ensuring maintenance to unable wife to maintain herself during the pendency of proceedings. Even Parliament
took into account the reality and by the Amendment Act, 2001 express provision has been made for the purpose.
Again, maintenance is a right which accrues to a wife against her husband the minute the former gets married to the latter. It is not only a moral obligation but is
also a legal duty cast upon the husband to maintain his wife. Hence, whenever a wife does not stay with her husband and claims maintenance, the only question
which the Court is called upon to consider is whether she was justified to live separately from her husband and still claim maintenance from him? If the reply is in the
affirmative, she is entitled to claim maintenance. It is, therefore, open to the Magistrate to award maintenance from the date of application and there is nothing which
requires recording of `special reasons' though he must record reasons as envisaged by sub- section (6) of Section 354 of the Code in support of the order passed by
him.
We, therefore, hold that while deciding an application under Section 125 of the code, a Magistrate is required to record reasons for granting or refusing to grant
maintenance to wives, children or parents. Such maintenance can be awarded from the date of the order, or, if so ordered, from the date of the application for
maintenance, as the case may be. For awarding maintenance from the date of the application, express order is necessary. No special reasons, however, are required to
be recorded by the Court. In our Judgment, no such requirement can be read in sub section (l) of Section 125 of the Code in absence of express provision to that
effect. â€
So in this view of the matter, it is evident that respondent no. 1 is wife of the petitioner/ non-applicant and respondents no. 2 and 3 are his children.
Petitioner/ non-applicant did not pay any maintenance during the trial, They have no source of income, so petitioner/ non-applicant is liable to pay
maintenance from the date of application. There is no perversity or illegality in the impugned order. In view of the above position of law the decision
relied upon by the applicant is not much helpful. Accordingly, this petition is dismissed.