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Judgment
G. Yethirajulu, J.—This Criminal Petition has been filed u/s 482 of Cr.P.C. by the respondent/husband in M.C. No. 16 of 2001 on the file of the IV Additional Judicial Magistrate of First Class, Kakinada.
The first respondent herein is the wife of the petitioner herein. She filed the said M.C. u/s 125 of Cr.P.C. seeking maintenance of Rs. 500/- per month from her husband. The trial Court, after hearing both parties, allowed the said M.C. by granting maintenance of Rs. 500/- per month to her. Being aggrieved by the said order dated 22-04-2004, the husband preferred C.R.P. No. 39 of 2004 on the file of the III Additional District & Sessions Judge, Kakinada. The learned Sessions Judge also concurred with the view expressed by the Magistrate, and accordingly dismissed the revision petition on 01-06-2005. Being aggrieved by the orders of the Courts below, the husband filed the present Criminal Petition to set aside the orders passed by the Courts below by invoking powers u/s 482 of Cr.P.C.
The averments of the petition filed by the wife in the said M.C. are briefly as follows:
The marriage of the petitioner and the first respondent took place on 29- 08-1999 at Velangi Village. Immediately, the marriage was consummated. At the time of marriage, the parents of the wife gave an amount of Rs. 2,80,000/- to the husband and also sare samans, worth Rs. 40,000/-.
The husband and his parents look after her affectionately for 15 days. Thereafter, the husband came in a drunken state while they were residing in her in-laws house and ill-treated her and subjected her to cruelty by demanding money and her in-laws and relatives also abetted the same. A dispute was raised and the husband on 22-08-2000 executed a ''Hameepathram'' to look after her well in the presence of elders. Later, the husband took her to Devarapalli where he was working and after few days again she was subjected to cruelty by demanding dowry.
The husband also developed illicit intimacy with another lady and used to come to the house in a drunken state and used to beat her and ill-treated her. On 16- 02-2001 the husband sent away his wife to her parents house asking her not to come to their house without bringing the money as demanded.
The husband resisted the petition by contending that the marriage of the first respondent was performed with him against her will. She used to demand more money for her luxurious life. When he expressed his inability, she demanded to set up separate residence. She used to go and staying in her parents house and used to demand him to purchase colour T.V., fridge and other articles. When he expressed his inability, she went away to her parents house. At the intervention of elders, she joined with him at Devarapalli and an undertaking letter was obtained from him forcibly. Thereafter, on 16-02-2001 she left his house without any just and proper cause. Later, he issued a legal notice on 19-02-2001 to his wife and filed O.P. No. 22 of 2001 on the file of Senior Civil Judge''s Court, Kovvur for restitution of conjugal rights and a decree was passed against her, through the order dated 16-10-2001. Later, she filed the said maintenance case and also filed a criminal case against him under Sections 498-A and 406 IPC and Sections 3 and 4 of Dowry Prohibition Act. She is a B.A. graduate and was earning Rs. 1,000/- per month on tuitions. She is able to maintain herself. Whereas, he has to look after his parents and sisters and he has to meet the expenditure for medicines. He is willing to maintain her if she comes and join with him.
The trial Court granted maintenance from the date of the order, which was confirmed by the revisional Court. The husband approached this Court on the simple ground that whether the trial Court is justified in granting maintenance from the date of the petition instead of date of the order?
The learned Counsel for the petitioner/husband submitted that in the normal course, the Court has to pass the order for maintenance from the date of the order and if the maintenance is granted from the date of the petition, it has to assign the reasons and as the orders given by the Courts below do not contain any reason for granting maintenance from the date of the petition, the order of trial Court has to be modified that the wife is entitled to maintenance from the date of the order, but not from the date of the petition. In support of his contention, the learned Counsel for the petitioner relied on a judgment of this Court in Dasyam Elizabath Rani v. Dasyam Pradeep Kumar 2000 (2) ALD (Cri.) 539 (AP). In the said decision, a learned single Judge while considering the scope of Section 125(2) of Cr.P.C. held as follows:
A plain reading of Sub-sections (2) of Section 125 of the Code shows that the allowance shall be payable from the date of Order or if it so ordered, from the date of application. There is nothing in the aid sub-section, to show that the allowance shall be normally payable from the date of Order. When Sub-section (2) of Section 125 of the Code gives an option to the Court to grant maintenance either from the date of Order or from the date of application, it is indicia that the discretion is vested with the Court. Once the Court is given the discretion, it is for the Court to exercise its discretion in a judicious manner, but, not arbitrarily. Therefore, the Court is obliged to give reasons for exercising its discretion in either way. When that be the plain meaning of Sub-section (2) of Section 125 of the Code, it is difficult to import the words, which have not been there in the said Sub-section, so as to say that ordinarily the maintenance shall be granted either from the date of Order or from the date of application. Once the discretion is vested with the Court that cannot be taken away by inflexible rule that it shall be exercised in a particular manner. Having due regard to the object in incorporating the provision enabling the destitute to claim maintenance in the Court, having due regard to the aspect that this provision is in addition to the regular right to claim maintenance by the destitute from the persons responsible for paying the maintenance allowance under the personal laws of the parties, and having due regard to the other aspect that it is the discretion of the Court either to grant maintenance from the date of Order or from the date of the application, by no stretch of the imagination it can be said that it is an ordinary rule to direct the maintenance allowance to be paid either from the date of Order or from the date of application.
The sum and substance of the above decision is that the discretion has to be exercised by the Court. From a reading of Sub-section (2) of Section 125 of Cr.P.C., it is clear that a discretionary power is given to the Court to decide whether the maintenance to be granted from the date of the petition or from the date of the order. Ultimately, the High Court directed to remit back the matter to the Family Court, Vijayawada for fresh consideration by formulating a point regarding the entitlement of maintenance from the date of the petition or from the date of the order.
The learned Counsel for the first respondent/wife relied on a decision of Bombay High Court in Smt. Mangal Pandharinath Sathe Vs. Pandharinath Arjun Sathe, . In the case covered by the above decision, the wife was constrained to leave matrimonial home because of ill-treatment and living with her parents without any independent source of income. The husband was gainfully employed and the maintenance case filed by her was pending in the trial Court for four years. In such circumstances, the Bombay High Court held that in the case of this nature, wife would be entitled to maintenance from the date of the application itself and not from the date of the order.
While making the above observations, the Court found that the petition for maintenance was pending in trial Court for nearly four years. During these four years, the applicant was required to depend upon the parents for her maintenance, despite the husband has been gainfully employed and he was under an obligation to maintain his wife. Having failed and neglected to maintain his wife, who was unable to maintain herself, the wife would be entitled for maintenance from the date of the application.
The learned Counsel for the first respondent also relied on a decision of this Court in Thulasi alias Thulja Bai Vs. Laxman Rao and Others, . In the said case, a learned single Judge while considering the scope of Section 125(2) of Cr.P.C. held that u/s 125(2) Cr.P.C. discretion is vested in the Magistrate to set the effective date for payment of maintenance either from the date of the application or from the date of order. A plain reading of Section 125(2) Cr.P.C. only means that if the Magistrate does not set the date for payment, then ordinarily, it is the date of the order and to make it effective from the date of the application, the Magistrate should specifically say so in the order. Nothing more or nothing less can be read into the said provision contained under Sub-section (2) of Section 125 Cr.P.C. In the instant case, the Magistrate has specifically set the date as from the date of the filing of the petition and that is so obvious from the concluding paragraph of the order of Magistrate. As the Magistrate has set the date for payment of maintenance from the date of the application that is sufficient compliance of the provisions contained u/s 125(2) Cr.P.C. and he was not obliged to state reasons for setting the effective date of payment from the date of the application.
Though the learned Counsel for the respondent relied on another judgment in Rohtash Singh v. Ramendri and Ors. 2000 SCC 597 it relates to the granting of maintenance and not on the aspect of granting of maintenance from the date of the petition or from the date of the order.
In the light of the above decisions, we would analyze the issue from the facts of the present case.
Section 125(2) of Cr.P.C. reads as follows:
Order for maintenance of wives, children and parents:
(1) ...
(2) Any such allowance for the maintenance or interim maintenance and expenses for proceeding shall be payable from the date of the 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.
(3) ...
From the reading of above Section, it is clear that the discretion is left to the Magistrate to grant maintenance either from the date of the order or from the date of the application. If the date, from which the maintenance is ordered, is not mentioned in the petition, the order will be effective only from the date of the order. If there is a specific mention about the date of payment for maintenance, it has to be paid by the husband from the date of the application.
Keeping in view the object of legislation, I concur with the view expressed by the learned single Judge of this Court in Laxman Rao''s case (3 supra) and also follow the judgment in Pandharinath Arjun Sathe''s case (2 supra).
The learned Magistrate, after giving all findings observed that the husband appears to have ill-treated his wife and subjected her to cruelty by demanding dowry while she was at the matrimonial home. Under those circumstances, the wife was fully justified to stay away from her husband and claim maintenance, as it appears that the wife has not withdrawn from the society of the husband without any reasonable excuse. Therefore, the husband is directed to pay maintenance @ Rs. 500/- per month to the wife from the date of the petition.
The maintenance case was filed in the year 2001 and it was disposed of in the year 2004. So it was pending before the trial Court for more than three years for no fault of the wife.
The wife should not be made to suffer for non-disposal of the case expeditiously due to the delay caused in the court.
The revision Court also observed that the trial Court granted maintenance from the date of the petition by considering the facts that the wife was mercilessly necked out of her matrimonial home from 16-02-2001 and has been residing with her parents house from that day; she is not having any means to maintain herself; she spent so much amount for filing the petition and attending the Court and as the provision is a beneficial legislation to help the wife to get maintenance, the husband has to maintain his wife when he has means.
In the light of the above circumstances, the Courts below rightly held that the wife is entitled to maintenance from the date of the petition and I do not find any merits in the petition.
Accordingly, the Criminal Petition is dismissed.