Amarjit Kaur Sartaz Singh v. Sartaz Singh Gurcharan Singh

(1) THE petitioner-Amarjit Kaur filed a petition under Section 125 of the Code of Criminal Procedure against the respondent-Sartaz Singh on the file of Chief Judicial Magistrate, Jagadhari, claiming maintenance @ Rs. 1000/- per month. She alleged that she was married to respondent on 19-11-1989 and that soon after the marriage, the respondent started maltreating her on the ground that she had not brought sufficient dowry. She further alleged that on 23-7-1990 she was beaten by the respondent and was driven out of the house. According to the petitioner, she has since then been living with her brother and that the respondent never cared for her and also refused to resume matrimonial relationship with her. The petitioner further claimed that she had no source of income to maintain herself. The respondent appeared through counsel and made a statement that he has no objection if a sum of Rs. 300/- per month was fixed as maintenance. Accordingly, the learned Chief Judicial Magistrate awarded the petitioner Rs. 300/- permensem as maintenance payable by the respondent from the date of filing of the petition.

(2) THE respondent who did not have any objection to the award to the maintenance filed a criminal revision (No. 48 of 1994) questioning the order of the learned Chief Judicial Magistrate in so far as it directed that the maintenance shall be payable from the date of petition. He contended that maintenance should have been allowed from the date of the order and not from the date of the filing of the petition, and that the learned Chief Judicial Magistrate had not given any reasons for doing so. He relied upon the decisions of this Court in Arun Kumar v. Kamlesh Kumari, 1989 (1) RCR 233, Arun Kumar v. Smt. Rama Sharma, 1991 (1) RCR 151 and also the decision of the Allahbad High Court in Dharmindra Kumar v. Smt. Chandra Prabha Devi, 1990 (2) RCR 583. But the petitioner contended that the respondent appeared before the learned Chief Judicial Magistrate after a long time and thus harassed the petitioner and, therefore, the learned Chief Judicial Magistrate was right in granting maintenance from the date of the petition claiming maintenance. However, the learned Additional Sessions Judge, Jagadhri, who heard this criminal revision agreed with the respondent and held that when the respondent appeared before the learned Chief Judicial Magistrate, he raised no objection for the grant of maintenance, but the petitioner did not lead any evidence in support of her case and, therefore, the grant of maintenance from the date of filing of the petition is not sustainable. Therefore, he modified the order of the learned Chief Judicial Magistrate by granting maintenance from the date of order of the Chief Judicial Magistrate.

(3) AGGRIEVED by this order of the learned Additional Sessions Judge, Jagadhari, the petitioner has now approached this Court seeking restoration of the order of the learned Chief Judicial Magistrate. Therefore, the points that arise for consideration in this petition are :-

(i) whether the petitioner is entitled to maintenance from the date of the filing of the petition claiming maintenance

(ii) whether the Court is bound to give reasons for granting maintenance from the date of filing of the application

(4) THOUGH the respondent entered appearance before this Court through counsel, none has been appearing before this Court on behalf of the respondent from 24-11-1995 onwards though this petition was adjourned several times. Therefore, I have heard the arguments of the learned counsel for the petitioner and I have also perused the records on the file of this Court.

(5) BEFORE I deal with the points that arise for consideration, it is necessary to take notice of certain undisputed facts. It is seen from the order of the learned Chief Judicial Magistrate that the petitioner had alleged that she was married on 19-11-89, that her husband maltreated her for bringing insufficient dowry, that she was driven out of the house on 23-7-1990, and that the respondent-husband never cared for her later on. These allegations in the petition were not disputed by the respondent. Because, it is seen from the order of the learned Chief Judicial Magistrate, that though the respondent appeared through his counsel, he made a statement that he has no objection for the grant of maintenance at Rs. 300/- per month. So we find that the allegations made by the petitioner have not been controverted. Though, this petition was filed before the learned Chief Judicial Magistrate, on 28-10-1991, the same was disposed of on 6-5-1994 after nearly three years had passed. The learned Chief Judicial Magistrate, with the consent of the respondent herein awarded maintenance at Rs. 300/- per month, but directed that the same be paid from the date of filing of the petition. This order was passed in the presence of respondent. In spite of the fact that the petition was pending for nearly more than three years, the respondent did not choose to contest the petition but agreed after nearly three years to the maintenance being paid to the petitioner. The learned Additional Sessions Judge, however, was persuaded by the argument raised by the respondent that learned Chief Judicial Magistrate, had not given any reason for granting maintenance from the date of the petition. The respondent as well as the learned Additional Sessions Judge, proceeded on the assumption that normally maintenance should be granted only from the date of the order, and if the Court were to grant maintenance from the date of the petition then, the Court should give special reasons for granting the same. Such a view is not supported by language of sub-Section (2) of Section 125 of the Code of Criminal Procedure, which is to the following effect - (2) "such allowance shall be payable from the date of the order, or if so ordered, from the date of the application for maintenance. "

(6) THIS sub-Section does not say that the Magistrate has to give special reasons for granting maintenance from the date of the application. What is meant by the sub-Section can be only this; that is, if the order is silent as to the date from which the maintenance is payable then maintenance shall be payable from the date of the order, and if the maintenance is to be paid from the date of the application itself then there should be a specific order in that behalf by the Court. There is nothing in this Section to hold that the Magistrate should give special reasons if he is to order that maintenance shall be payable from the date of the application. Therefore, the language of sub-Section (2) Section 125 does not authorise the Court to hold the view that the Magistrate is bound to give special reasons for granting maintenance from the date of the application.

(7) MAINTENANCE is a right which accrues to a lady as against her husband, the minute she is married to the letter. It is not only a moral obligation but is also a legal duty cast upon the husband to maintain the wife. The only question that may arise in a given case is as to whether the wife is entitled to live separately from her husband and still claim maintenance from her husband. That question does not arise for consideration in this case is as much as the respondent-husband did not question the entitlement of the petitioner-wife to separate maintenance. The petitioner was married to the respondent in the year 1989, but the petition filed in 1991 could be decided only on 6-5-1994. The respondent-husband also did not question her entitlement, but had agreed to pay maintenance at Rs. 300/- per month. The right of the petitioner to maintenance was thus a pre-existing right. In view of the provisions contained in sub-Section (2) of Section 125, Cr. P. C. separate maintenance could be granted only from the date of the petition and not earlier to that. So, there was no necessity for the Magistrate to give reasons for granting maintenance from the date of the petition. If at all any reason is needed it is self evident from the order of the learned Chief Judicial Magistrate, that the petition which was instituted on 28-10-1991 was decided only on 6-5-1994, that too, on the consent of the respondent-husband. For nearly three years, the right of the petitioner to maintenance was delayed. It is also not stated that the petitioner was granted any interim maintenance. The petitioner has also alleged that she had no means of her own and she was not cared for by her husband. These allegations stand uncontroverted. So, these are sufficient reasons for granting maintenance from the date of petition.

(8) OF course, the learned Additional Sessions Judge has referred to three decisions in his order, of which the decisions in 1991 (1) RCR 151, 1989 (1) RCR 233 are the decisions of Single Judge of this Court, whereas in 1990 (2) RCR 583 is a judgement of a Single Judge of the Allahabad High Court. These decisions do support the contention raised by the respondent and the view taken by the Additional Sessions Judge, Jagadhari. But, there is another judgement of this Court rendered by a single Judge taking a contrary view, but, after obtaining the views of Division Bench of this Court. This is the decision rendered in Gurpartap Singh v. Satwant Kaur, 1991 (1) RCR 40. The very same question arose for consideration before a single Judge of this Court as to whether it is obligatory for the Court to give special reasons for granting maintenance/interim maintenance under Section 125, Cr. P. C. , from the date of application. This specific question was referred by the single Judge for the opinion of a larger Bench. Accordingly a Division Bench was constituted and the Division Bench answered the reference in the negative, and held that it is not obligatory for the Court to give special reasons for granting maintenance/interim maintenance under Section 125, Cr. P. C. , from the date of the application which is purely within its discretion. Therefore, even though this decision is of a single Judge, it has been rendered after obtaining the opinion of the Division Bench and, therefore, the view taken in this decision has to prevail over the other judgements rendered by the single Judge taking a contrary view. In view of this decision, the decisions in 1991 (1) RCR 151, 1989 (1) RCR 233, and 1990 (2) RCR 583, holding the contrary view that reasons have to be given by the Court for granting maintenance from the date of the application are no longer good law. The former two decisions shall be deemed to have been overruled to that extent by the decision of Division Bench of this Court.

(9) THEREFORE, it follows that the order of the learned Additional Sessions Judge disturbing the order of the learned Chief Judicial Magistrate granting maintenance from the date of the application cannot be sustained, and the order of the learned Chief Judicial Magistrate has to be restored. So, I find both the points raised for consideration in this petition in favour of the petitioner-wife.

(10) IN the result, this petition is allowed and the impugned order of the learned Additional Sessions Judge Jagadhari is set aside, and the order of the learned Chief Judicial Magistrate Jagadhari is restored holding that the petitioner-wife is entitled to maintenance from the date of the petition claiming maintenance. Petition allowed.