Ved Prakash Vaish, J. - Heard Sri Amit Dwivedi, learned counsel for the appellant and Sri Satish Chandra Kashish, learned counsel for the respondents. .

2. The appellant-husband has filed the present second appeal under Section 100 of the Code of Civil Procedure (hereinafter referred to as "C.P.C.") against the judgment and decree dated 10.07.2006 passed by Additional District & Sessions Judge, Gonda in Civil Appeal No.9 of 2006 whereby the appeal filed by the respondent No.3 herein- wife was allowed and the appellant was directed to pay the maintenance from the date of filing of the suit.

3. Succinctly stating that the facts of the case are that Smt. Kiran Srivastava (respondent No.3 herein/plaintiff in the regular suit) filed a suit for maintenance, which was registered as Regular Suit No.229 of 1999 titled as Smt. Kiran Srivastava vs. Ganga Prasad Srivastava. The case of respondent No.3 is that she was married with Ganga Prasad Srivastava (appellant herein) in the year 1985 according to Hindu Rites and Ceremonies, after marriage they started living as husband and wife; in the year 1987, the respondent again married with one Rekha; the petitioner was tortured and she was turned out from the matrimonial house in the month of September 1994 and she is living separately; the petitioner is not employed, she is not earning and her father is unable to maintain her. It was also averred that the defendant (appellant herein) is working as Additional Engineer at Barabanki and his income is Rs.4,000/- per month. The petitioner claimed a sum of Rs.2,000/- towards maintenance with effect from September 1994.

4. The suit was contested by the appellant/defendant by filing written statement. The appellant/defendant denied the allegations made in the plaint. In the additional statement, it is stated that the marriage was solemnized on 09.05.1985 without disclosing acute leprosy disease. It was stated that the parents of the petitioner took her in the month of July, 1985 for necessary treatment and thereafter she did not return back. It was also stated that the plaintiff is intermediate pass and was giving tuitions and earing Rs.2,000/- per month. It was denied that the appellant/defendant has remarried. It was also stated that he is maintaining his ailing parents and siblings.

5. On the pleadings of parties following issues were framed by learned trial court:-



6. By judgment and decree dated 7th January, 2006, the suit was decreed by learned Civil Judge (Senior Devision), Gonda and the appellant-husband was directed to pay a sum of Rs.2,000/- per month towards maintenance from the date of judgment, by 7th day of each month to the plaintiff, the said amount would be paid until she remarries.

7. Against the said judgment and decree dated 07.01.2006 the respondent No.3 herein filed a Civil Appeal No.9 of 2006, she claimed that the maintenance should have been awarded from the date of filing of the suit along with interest 17 % per annum.

8. Vide judgment and decree dated 10.07.2006, the appeal was partly allowed, judgment and decree dated 07.01.2006 was modified and the defendant (appellant herein) was directed to pay maintenance Rs.2,000/- per month from the date of filing of the suit, that is, 26.03.1999 and the appellant/defendant was directed to pay arrears of maintenance within two months.

9. Feeling aggrieved by the said judgment and decree, the appellant (husband) has preferred the present second appeal under Section 100 of the C.P.C.. The defendant in the original suit is the appellant, plaintiff is respondent No.3 in the present appeal and respondents No.1 and 2 are Additional District Judge and Civil Judge (S.D.), Gonda respectively.

10. Vide order dated 05.07.2017, my learned predecessor admitted the appeal on the following substantial questions of law:

"1. Whether plaintiff is entitled for maintenance from the date of moving of the plaint/application or from the date of judgment and decree passed by the trial court.

2. Whether the judgment passed by the appellant court is in accordance with the provisions as provided under Section 25 of Hindu Marriage Act, 1955."

11. Learned counsel for the appellant urged that earlier the respondent No.3 wife had filed the present suit for claiming maintenance under Section 25 of the Hindu Marriage Act, 1955 (hereinafter referred to as "Act, 1955"). It was neither the petition under Section 125 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "Cr.P.C.") nor under Section 18 of the Hindu Adoptions And Maintenance Act, 1956 (hereinafter referred to as "Act, 1956").

12. Learned counsel for the appellant also submitted that there is no provision for grant of maintenance from the date of filing of the suit and the trial court rightly directed the appellant to pay maintenance @ 2,000/- per month with effect from the date of judgment.

13. Per contra, learned counsel for respondent No.3 contended that the respondent No.3-wife had filed a petition under Section 18 of the Act, 1956 and not under Section 25 of the Act, 1955. Learned counsel for the respondent further submitted that the wife is entitled to get maintenance from the date of filing of the suit.

14. I have carefully considered the submissions made by the learned counsel for both the parties. I have also carefully gone through the material on record.

15. The first question which comes up for consideration is under which provision the respondent No.3 wife had filed the suit. The respondent No.3/plaintiff has not mentioned the provisions under which she filed the suit for claiming maintenance. Neither in the suit nor in the first appeal it was stated that the suit was filed under Section 125 of the Code of Criminal Procedure or under Section 18 of the Act, 1956 or Section 25 of the Act, 1955.

16. The counsel for the appellant submits that the suit was filed under the provisions of Section 25 of the Act, 1955 whereas according to the counsel for the respondent No.3 wife, the suit was filed under Section 18 of the Act, 1956.

17. Learned counsel for both the parties are at consensus that the suit was not filed under the provisions of Section 125 of the Code of Criminal Procedure, 1973. Thus, what is left for consideration is whether the suit was filed under Section 25 of the Act, 1955 or under Section 18 of the Act, 1956. It is necessary to consider the relevant provisions.

18. Section 25 of the Act, 1955 reads as under:-

"25 Permanent alimony and maintenance .

(1) Any court exercising jurisdiction under this Act may, at the time of passing any decree or at any time subsequent thereto, on application made to it for the purpose by either the wife or the husband, as the case may be, order that the respondent shall pay to the applicant for her or his maintenance and support such gross sum or such monthly or periodical sum for a term not exceeding the life of the applicant as, having regard to the respondents own income and other property, if any, the income and other property of the applicant, the conduct of the parties and other circumstances of the case], it may seem to the court to be just, and any such payment may be secured, if necessary, by a charge on the immovable property of the respondent.

(2) If the court is satisfied that there is a change in the circumstances of either party at any time after it has made an order under sub-section (1), it may at the instance of either party, vary, modify or rescind any such order in such manner as the court may deem just.

(3) If the court is satisfied that the party in whose favour an order has been made under this section has re-married or, if such party is the wife, that she has not remained chaste, or, if such party is the husband, that he has had sexual intercourse with any woman outside wedlock, it may at the instance of the other party vary, modify or rescind any such order in such manner as the court may deem just."

19. Section 18 of the Act, 1956 reads as under:-

"18 Maintenance of wife. --

(1) Subject to the provisions of this section, a Hindu wife, whether married before or after the commencement of this Act, shall be entitled to be maintained by her husband during her life time.

(2) A Hindu wife shall be entitled to live separately from her husband without forfeiting her claim to maintenance--

(a) if he is guilty of desertion, that is to say, of abandoning her without reasonable cause and without her consent or against her wish, or wilfully neglecting her;

(b) if he has treated her with such cruelty as to cause a reasonable apprehension in her mind that it will be harmful or injurious to live with her husband;

(c) if he is suffering from a virulent form of leprosy;

(d) if he has any other wife living;

(e) if he keeps a concubine in the same house in which his wife is living or habitually resides with a concubine elsewhere;

(f) if he has ceased to be a Hindu by conversion to another religion;

(g) if there is any other cause justifying living separately.

(3) A Hindu wife shall not be entitled to separate residence and maintenance from her husband if she is unchaste or ceases to be a Hindu by conversion to another religion."

20. Section 25 of the Act, 1955 refers to the payments to be made under it by ones spouse to another as maintenance. The section is wide enough to enable the court exercising jurisdiction under the Act, 1955, that is, under any provisions of the Act, 1955 including proceeding for annulment, to grant permanent alimony. In other words, the Section vests wide power in the Court making orders for maintenance and support of ones spouse by the other where it passes any decree for restitution of conjugal rights, judicial separation, dissolution of marriage by divorce or annulment of the marriage on the ground that it was void or voidable or even at any time subsequent thereto.

21. At this juncture, it is relevant to mention here that the legislature has used the words ......at the time of passing any decree or at any time subsequent thereto....... The said words indicate that an order for permanent alimony or maintenance in favour of the wife or the husband can only be made when a decree is passed granting any substantive relief under the Act, 1955. The word decree in the section refers to decrees under the provisions of Sections 9 to 14 of the Act, 1955 which result in disruption of the marital status of the parties. Thus, a claim for maintenance under the provisions of the Section 25 of the Act, 1955 is dependent on the passing of a decree, leading to disruption of the status of the spouses or a marital disruption.

22. Moreover, Section 25 of the Act, 1955 clearly provides that maintenance may be granted on an application of a party at the time of passing of decree or at any subsequent time, and therefore it envisages that no separate suit is required to be filed for the same.

23. The provisions of the Act, 1956 provides that a spouse can seek maintenance under the provisions of Section 18(1) during the life time of the claimant. Section 18(2) gives a right to the wife to claim maintenance while living separately from her husband without giving up her claim to maintenance. Hence, the wife can claim maintenance under this section while her marriage is sustaining, whereas the right to claim maintenance under the provisions of Section 25 of the Act, 1955 is dependent upon disruption of the marriage resulting in a decree. The jurisdiction vested in the Court under both the enactments are separate and distinct.

24. The reason for this distinction of denial of relief in relation to the proceeding for adjudication of claims of maintenance is a moot question which goes to the root of the jurisdiction of the Court. This is so, since, a claim for maintenance under the provision of Section 25 is dependent on the passing of a decree, leading to disruption of the status of the spouses or a marital disruption, whereas the claim of a spouse under the provisions of Hindu Adoption and Maintenance Act, 1956 does not. Under that Act, the spouse can seek maintenance under the provisions of Section 18 (1) during the lifetime of the claimant. Section 18(2) gives a right to the wife to claim maintenance while living separately from the husband without giving up her claim to maintenance. Hence, the wife can claim maintenance under that Section while her marriage, is sustaining, whereas the right to claim maintenance under Section 25 is dependent upon the disruption of the marriage resulting in a decree.

25. In the case of Chand Dhawan (Smt) vs. Jawaharlal Dhawan, (1993) 3 SCC 406 , [LQ/SC/1993/506] the Honble Supreme Court observed as under:-

"25. We have thus, in this light, no hesitation in coming to the view that when by court intervention under the Hindu Marriage Act, affection or disruption to the marital status has come by, at that juncture, while passing the decree, it undoubtedly has the power to grant permanent alimony or maintenance, if that power is invoked at that time. It also retains the power subsequently to be invoked on application by a party entitled to relief. And such order, in all events, remains within the jurisdiction of that court, to be altered or modified as future situations may warrant. In contrast, without affectation or disruption of the marital status, a Hindu wife sustaining` that status can live in separation from her husband, and whether she is living in that state or not, her claim to maintenance stands preserved in codification under section 18(1) of the Hindu Adoptions and Maintenance Act. The court is not at liberty to grant relief of maintenance simplicitor obtainable under one Act in proceedings under the other. As is evident, both the statutes are codified as such and are clear on their subjects and by liberality of interpretation inter-changeability cannot be permitted so as to destroy the distinction on the subject of maintenance."

26. In the instant case, the suit for claiming maintenance was filed on 26.03.1999 before the court of learned Civil Judge (Senior Devision), Gonda and the suit was not filed along with any petition under any provisions of the Act, 1955. As discussed above, the suit could not have been filed under Section 25 of the Act, 1955 because there is no disruption of marriage and there was no proceedings under the Act, 1955. The relationship of husband and wife has not been disputed by the appellant, in the written statement. In view of the aforesaid distinction between the two provisions, in my considered view, the suit filed before the civil court was under Section 18 of the Hindu Adoption and Maintenance Act, 1956.

27. Now coming to the second question whether the respondent No.3 is entitled to get maintenance from the date of filing of the petition or from the date of judgment, it may be mentioned that Section 18 of the Act, 1956 does not provide the date from which the maintenance will be awarded.

28. According to the Law with regard to maintenance, there is an obligation of the husband to maintain his wife which does not arise by reason of any contract-express or implied but out of jural relationship with husband and wife consequent to the performance of marriage. Such an obligation of the husband to maintain his wife arises irrespective of the fact whether he has or has no property, as it is considered an imperative duty and a solemn obligation of the husband to maintain his wife. The husband cannot be heard saying that he is unable to maintain due to financial constraints so long as he is capable of earning.

29. The right to maintenance is a statutory right. The law recognizes the right of the wife and the husband to be in equali jura in the matter of maintenance. The object of awarding maintenance is to provide financial assistance to spouse who is unable to maintain herself or himself, as the case may be.

30. It is relevant to point out that according to sub-section (1) of Section 18 of the Hindu Adoption and Maintenance Act, 1956, a Hindu wife is entitled to get maintenance from her husband during her lifetime. She is entitled to claim maintenance from her husband so long as she is chaste subject to the conditions laid down in sub-section (2) of Section 18 of the said Act.

31. At this juncture, it will not be out of place to mention here that Section 125 of the Cr.P.C., there is no specific provision that the maintenance should be granted from the date of judgment or from the date of filing of the application/petition. Section 125 envisages the provisions for grant of maintenance to wife, children and parents and sub section 2 of Section 125 of the Cr.P.C. that any such allowance for the maintenance or interim maintenance and expenses for proceedings 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.

32. The two Judges Bench of the Honble Supreme Court in Kirtikant D. Vadodaria vs. State of Gujarat and another , (1996) 4 SCC 479 , [LQ/SC/1996/894] while adverting to the dominant purpose of Section 125 of the Code of Criminal Procedure observed as under:-

".............While dealing with the ambit and scope of the provision contained in Section 125 of the Code, it has to be borne in mind that the dominant and primary object is to give social justice to the woman, child and infirm parents etc. and to prevent distitution and vagrancy by compelling those who can support those who are unable to support themselves but have a moral claim for support. The provisions in section 125 provide a speedy remedy to those women. children and destitute parents who are in distress. The provisions in Section 125 are intended to achieve this special purpose. The dominant purpose behind the benevolent provisions contained in Section 125 clearly is that the wife, child and parents should not be left in a helpless state of distress, destitution and starvation, Having regard to this social object the provisions of Section 125 of the Code have to be given a liberal construction to fulfil and achieve this intention of the Legislature................"

33. In the case of Jaiminiben Hirenbhai Vyas and another vs. Hirenbhai Rameshchandra Vyas and another, (2015) 2 SCC 385 [LQ/SC/2014/1231] the Honble Supreme Court held as follows:-

"5. Section 125 Cr.P.C., therefore, impliedly requires the court to consider making the order for maintenance effective from either of the two dates, having regard to the the relevant facts. For good reason, evident from its order, the court may choose either date. It is neither appropriate nor desirable that a court simply states that maintenance should be paid from either the date of the order or the date of the application in matters of maintenance. Thus, as per Section 354 (6) Cr.P.C, the court should record reasons in support of the order passed by it, in both eventualities. The purpose of the provision is to prevent vagrancy and destitution in society and the court must apply its mind to the options having regard to the facts of the particular case."

34. While dealing with the relevant date for grant of maintenance, the Honble Supreme Court in the case of Shail Kumari Devi and another vs. Krishan Bhagwan Pathak, (2008) 9 SCC 632 , [LQ/SC/2008/1544] the Honble Supreme Court referred to the Code of Criminal Procedure (Amendment) Act, 2001 and observed as under:-

"21.....................Even after the amendment of 2001, an order for payment of maintenance can be made by a court either from the date of the order or where an express order is made to pay maintenance from the date of application, then the amount of maintenance can be paid from that date i.e. from the date of application"

35. In the aforesaid case, Honble Supreme Court after considering the decision of Division Bench of the High Court of Madhya Pradesh in Krishna Jain vs. Dharam Raj Jain , (1992) CriLJ 1028 (MP) observed as under:-

"37.....................To hold that, normally maintenance should be made payable from the date of the order and not from the date of the application unless such order is backed by reasons would amount to inserting something more in the sub-section which the legislature never intended. The Court observed that it was unable to read in sub-section (2) laying down any rule to award maintenance from the date of the order or that the grant from the date of the application is an exception."

36. Further, in Shail Kumaris case (supra), after referring to the decision in Krishna Jains (supra), the Honble Supreme Court considered the judgment of the High Court of Andhra Pradesh in K. Sivaram vs. K. Mangalamba , (1990) CriLJ 1880 [LQ/TelHC/1989/122] and ruled thus;

"43. 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 (1) of Section 125 of the Code in absence of express provision to that effect."

37. Further, in another case Susmita Mohanty vs. Rabindra Nath Sahu , (1996) 2 DMC 567, after considering the provisions of Section 125 of the Cr.P.C. adopting the principle that award of maintenance is a mode of preventing vagrancy or its consequences the Court said that the maintenance should be completed from the date of the application and not from the date of order, as protracted litigation may deprive the needy party of availing the maintenance.

38. In the case of Pradeep Kumar Pradhan vs. Dalimba Sahu , (2003) AIR Orissa 79, while granting maintenance to the wife in a proceeding under Section 9 of the Act, 1955, there was a controversy as to whether the said maintenance would be payable from the date of the application or from he date of the order. The Court observed that normally alimony is to be granted from the date of application.

39. In another case Bhanwar Lal vs. Smt. Kamla Devi , (1983) AIR Raj. 229 , Honble Single Judge of Rajasthan High Court while dealing with a matter of delay occasioned due to lapse of the Court observed that for the act of the Court no party should suffer and accordingly ruled that the interim maintenance to the wife should be awarded from the date of the application.

40. In the case of Vinny Parmvir Parmar vs. Parmvir Parmar , (2011) 13 SCC 112 , [LQ/SC/2011/940] a petition filed by the respondent in the family court for divorce on the ground of cruelty was converted into divorce by mutual consent and the marriage was dissolved by a decree under Section 13-B of the Hindu Marriage Act, 1955. The question adjudicated by the High Court was about the amount of maintenance/permanent alimony in terms of Section 25 of the Act, 1955. In the said circumstances, the maintenance was granted from the date of application.

41. In another case Susheelamma vs. K. Gaviyanna , (2007) 15 SCC 666 , the trial court directed the respondent to pay maintenance at the rate of Rs.1000/- per month from the date of filing of the suit. Against the said order, an appeal was preferred. During pendency of the appeal, an application was filed for staying operation of the direction of the trial court for making payment of the amount of maintenance. The High Court directed the respondent to pay maintenance at the rate of Rs.750/- per month from the date of filing of the appeal. In the said circumstances, the Honble Supreme Court directed that operation of the order passed by the trial court shall remain stayed if the respondent pays entire arrears from the date of filing of the suit till before the filing of the appeal at the rate of Rs.750/- per month within six months in three equal bimonthly installments and shall continue to pay the current amount of maintenance as directed by the appellate court.

42. A close reading of all these case laws would lead to the conclusion that in the matter of maintenance from the date of application should always be regarded as the starting point for payment of maintenance as otherwise a party seeking maintenance may be deprived of such maintenance due to delay in disposal of the petition/application, which may occasion by the act of the Court or act of one of the parties. The ratio of the above noted cases satisfy judicial conscience and there is no reason not to concur to the said view. The conclusion, therefore, on the subject would be that whenever there is contrary direction of the Court in the order of maintenance, the normal inference should be that the order of maintenance would be effective from the date of the application.

43. In the instant case, the relationship of husband and wife is not disputed, it is also not disputed that respondent No.3 wife was residing separately. Maintenance is a right which accrues to a wife against her husband since the inception of her getting married with him. A moral and legal obligation and duty is caste upon the husband to maintain his wife. The necessary corollary is that the wife can claim maintenance from the time she starts residing separately from her husband. There is no prohibition under 3 18 of the Act, 1956 for granting of maintenance from the date of filing of the suit/petition. There was enormous delay in disposal of the suit filed by respondent No.3, as in the present case the suit filed on 26.03.1999 came to be disposed of on 07.01.2006, that is, after about seven years. Till such time, respondent No.3 cannot be asked to starve. In these circumstances, in my opinion, it is required to grant of maintenance from the date of application/filing of the suit and by so granting, learned Additional District Judge, Gonda has not committed any legal infirmity.

44. In the result, the appeal is without any merit, same deserves to the dismissed and the same is hereby dismissed.

45. No order as to costs.

46. Interim application, if any, stands disposed of.

47. Lower court records be sent back forthwith.