Swaran Singh vs Supinder Kaur

V.S. Aggarwal, J.

This is a revision filed by Swaran Singh directed against the order passed by learned Additional Sessions Judge, Sirsa dated 27.5.1994. By virtue of the impugned order the learned Addl. Sessions Judge accepted the revision and set aside the impugned order. Maintenance was allowed to the respondent at Rs. 500/ per month w.e.f. 28.5.1991 when the respondent had filed the petition under Section 125 of the Code of Criminal Procedure.

RespondentSupinder Kaur was married to the petitioner on 14.10.1984 at Mandi Dabwali. It is alleged that after some time the petitioner had sold the scooter given in dowry and started raising a demand of Rs. 15,000/ so as to purchase a new scooter. He assaulted the respondent and turned her out of the house, pressing for his demand of Rs. 15,000/ in cash. A panchayat was called and matter was settled at Rs. 10,000/. The amount was paid to the petitioner. The petitioner was thereafter employed. After some time another demand of Rs. 50,000/ was made from the respondent so that petitioner could purchase a plot for construction of a house. The respondent was beaten and turned out of the house. Another panchayat was convened. The petitioner and his parents admitted their fault. However, after some time the demand of Rs. 50,000/ was repeated and the respondent was assaulted. It is alleged by the respondent that besides that petitioner has refused and neglected to maintain her.

Needless to say that petitioner contested the petition. It was denied that there was any demand of dowry. Petitioner's claim was that respondent did not want to live with him and desired to live separately. She had written a separation deed and also that petitioner can contract a second marriage, if he so desires. Plea was raised that respondent was running Amar Nursing Home in Hanumangarh Town and is earning enough.

Learned Judicial Magistrate dismissed the petition filed by the respondent observing that in the affidavit filed by the respondent she had voluntarily consented to live separately and therefore could not claim maintenance. Reliance was placed on subsection 4 to section 125 of the Code of Criminal Procedure. Respondent preferred the revision petition. The learned Additional Sessions Judge accepted the revision and set aside the orders passed by the learned Judicial Magistrate.

Aggrieved by the order passed by the learned Addl. Sessions Judge, petitioner filed the present revision petition.

Reliance was being placed by the learned counsel for the petitioner on the affidavit of the respondent, Exhibit R1. He urged that it was executed by the respondent whereby it was agreed that they could live separately, Learned Additional Sessions Judge had believed the respondent that she had not been explained the contents of the affidavit and her signatures were obtained because of fear. In my opinion the learned Addl. Sessions Judge rightly concluded that the statement of respondent cannot be ignored because even the Oath Commissioner, who attested the affidavit and alleged two witnesses were not stated to have been examined. In that event, when it cannot be held that affidavit Exhibit R1 was voluntarily signed by the respondent, the petitioner cannot be permitted to take advantage of subsection 4 to section 125 of the Code of Criminal Procedure.

In that event learned counsel for the petitioner alleged that in any case the maintenance should have been awarded from the date of order and not from the date of filing of the application by the respondent. In this regard no hard and fast rule can be laid. Under subsection 4 to Section 125 of the Code of Criminal Procedure, such allowance is to be paid from the date of order or if so ordered from the date of application for is to be paid for maintenance. This is a judicial discretion vested with the Court, which is not to be exercised arbitrarily. There are no cogent reasons to upset the findings as to the date from which the maintenance is to be paid, when there appears to be no legal infirmity the order requires no variation. The very purpose of enacting section 125, Code of Criminal Procedure is to provide summary remedy for maintaining destitute wife and other such relations, The balance in the facts of the present case must lean in favour of the respondent because the Court finds no cogent reasons as to why it should only be ordered from the date of order passed by the learned Additional Sessions Judge.

For these reasons, the revision petition being without merits, fails and is dismissed.