(1.) THIS is reference made by one of us (Pathak, J.) to Division Bench to answer the following questions :

" (i) Whether recording of reasons is sine qua non for awarding maintenance from the date of application (ii) If so, whether the order must be modified, making it payable from the date of order (iii) Whether the date of order in Section 125 (2) means the date of order of the Revisional Court also"

(2.) SMT. Krishnabai was married to non-applicant Dharamraj 16 years before the date of petition in accordance with Hindu Rites. She alleged that when Ku. Kalpana applicant No. 2 was in the womb, the non-applicant snatched her ornaments and forced her to return to her parents. After the birth of the child, she requested him to take her back, but he gave no response. The applicant with her child continues to stay with her parents. On 4-6-1982 the applicant and her child filed petition Under Section 125, Criminal Procedure Code before the Chief Judicial Magistrate claiming maintenance @ Rs. 400/- per month to the mother and Rs. 200/- to the child from the date of application. The non-applicant filed his written statement on 30-9-1982. The Trial Court allowed the application by order dated 24-4-1985, granting Rs. 200/- to the wife and Rs. 100/- to the child from the date of application.

(3.) THE non-applicant filed revision on 5-6-1985 before the Sessions Court. The Revisional Court held that Ku. Kalpana was not born from the cohabitation of the non-applicant but this does not affect his liability to maintain her as also his illegitimate child. There being no proof that the applicant was living in adultery, the maintenance could not be denied to her also. Thus, both were held entitled to maintenance from the non-applicant. The Revisional Court further herd that the normal rule is to award the maintenance from the date of order and if the maintenance is to be awarded from the date of application, the Court must record reasons. Since no reasons were given by the Magistrate, the award of the maintenance from the date of application, was set aside. The Trial Courts order was modified only to the extent that the maintenance to both was allowed from the date of order of the Trial Court i. e. 24-4-1985.

(4.) AGGRIEVED by the said order, the non-applicant filed M. Cr. C. No. 1096/86 while the applicants filed revison challenging the findings as to the legitimacy of Ku. Kalpana, so also that part of the order which set aside the grant from the date of application.

(5.) COUNSEL for both parties were heard. Shri Surendra Singh, Advocate, appeared as amicus curiae.

(6.) THE first question for decision is whether recording of reasons is sine qua non for awarding maintenance from the date of application. Section 125 (2) of the Code of Criminal Procedure, 1974, runs as under :

"such allowance shall be payable from the date of the order, or, if so ordered from the date of the application for maintenance. "

Even in the Code of Criminal Procedure (Act No. V of 1908) the analogous provision Section 488 (2) was the same as will be clear from the following :

"such allowance shall be payable from the date of the order, or, if so ordered, from the date of the application for maintenance. "

(7.) IN Lachmani v. Ramu, Cr. Re. No. 405/82, decided on 10-11-1982, Shri M. D. Bhatt, J. held as under :

"sub-section (2) of. Section 125 shows that such allowance has to be normally payable, from the date of the order. In the alternative it could be equally ordered from the date of the application for maintenance. Reading the sub-section, it clearly shows that the grant of allowance has normally to be, from the date of the order alone; and in case, this normal rule is not intended to be followed, then the Court concerned, may well grant the allowance from the date of the application; but, such order should be backed by some reason, to support the same. "

Shri R. C. Shrivastava, J. (Gwalior Bench), agreeing with view of Shri Bhatt, J. , in Mohd. Inayatulla Kha v. Smt. Salma Bano, M. Cr. C. No. 97/83, decided on 2nd April, 1985, held as under :

"there can be no dispute on the point that, ordinarily, payment of maintenance Under Section 125 of the Code of Criminal Procedure has to be ordered not from the date of the application but from the date of the order. "

Thus, according to both the learned Judges, the normal rule is to award the maintenance from the date of order, but, if the award is from the date of application, it should be supported by reasons.

(8.) A contrary view of Shri U. L. Bhatt, J. in C. M. Manai v. Esther Pachikara and Ors. , (1983) I DMC 409, 1981 Cr. LJ. N. O. C. 76 (Kerala), is that it is not necessary for the Court to record reasons for awarding maintenance from the date of petition. According to him, the Court may omit to mention the date from which the maintenance order is to take effect. In such case the amount is payable from the date of order. The Court may specifically direct the order to take effect from the date of the petition.

(9.) IN Makudum Ali v. Nargis Bano and Anr. , (1983) I DMC 40, it was held that there ought to be compelling reasons before the wife is deprived of maintenance from the date of the application. Since the two Courts failed to assign any such reason, the High Court set aside the order and allowed the maintenance from the date of application.

(10.) A plain reading of Sub-section (2) of Section 125 shows that the allowance is payable from the date of order where the Court omits to specify the date from which it is payable. The Court has power to make it payable from the date of application. See Sampat Kumar v. Shanti Devi, 1986 MPLJ Note 4. Thus, it is Open to the Court to allow the maintenance either from the date of order or from the date of application. The view in Lachhmanis case (supra) that the grant of allowance has normally to be, from the date of order and in case, this normal rule is not intended to be followed the grant from the date of the application should be backed by some reason is nothing but to strain the plain words of the sub-section. It is an attempt to insert something more in the sub-section, which the Legislature never intended. We are unable to read in the sub-section laying down any normal rule to award from the date of order or that the grant from the date of application an exception. Both the aforesaid decisions do not lay down correct law, and must be overruled. It is the discretion of the Magistrate to direct payment either from the date of application or from the date of order.

(11.) NEXT question for decision is whether it is essential to record reasons, if the allowance is made payable from the date of application which implies reasons need not be recorded if the same is allowed from the date of order, In our opinion, reasons have to be recorded in both the situations. Section 354 (6) of the Code provides that every final order Under Section 125 and certain other sections, shall contain points for determination, the decisions thereon and the reasons for the decisions. In a petition Under Section 125, the last point for determination is the date from which the maintenance ought to be granted. This depends on the pleadings in the case. The wife may claim the allowance from the date of application and the husband may deny it. In such a case the question has to be framed and decision on it has to be supported by reasons based on evidence led by both parties in support of their claims. Yet, in other case the husband may omit to deny the wifes claim from the date of application. In such cases, the question may be answered in wifes favour, on the short ground that there is no denial in the written statement and this may satisfy the requirement of Section 354 (6). It is well settled that a party cannot be allowed to set up altogether a new case in revision, not set up in the pleadings. See Jodhan Sahu v. Mst. Kulwantikher, 49 Cr. L. J. 323 (Pat.). Therefore, where the husband fails to contest the claim from the date of application by raising specific objections in the written statement, he has no right to urge that the allowance should have been from the date of order and not from the date of application. A Revisional Court should be slow to entertain any objection against the Magistrates order allowing the maintenance from the date of application, when the husband fails to contest the claim in the lower Court.

(12.) NEXT question for decision is what is the effect of non-supply of reasons for awarding maintenance from the date of application Section 465 of the Code provides that no omissions, errors, or irregularities in any proceeding will entail a reversal or alteration in appeal or in revision of any finding, sentence or order, unless such error, omission or irregularity has occasioned a failure of justice. Mere techinicalities in respect of matter which are not vital or important or significant in a trial should not be allowed to frustrate the ends of justice Chittaranjan Das v. State of West Bengal, AIR 1963 SC 1696 [LQ/SC/1963/122] .

(13.) I came across several cases in which the Revisional Courts, following Lachhmanis case, on a finding as to the absence of reasons to award the maintenance from the date of application, modified the Magistrates order mechanically directing payment only from the date of Magistrates order. Such a short cut approach to dispose of the revision, cannot be called judicious. The Revisional Court is obliged to scan the evidence on record to satisfy itself and supply the reasons in support of the Magistrates order and the order impugned may not call for any interference. If the material on record is absent or insufficient, it may resort to an order of remand with or without retaining seisin of the revision as the interest of justice and early disposal may demand. Patna High Court in 1971 Pat. L. J. R. 666 held that the section should be construed liberally and beneficially to the applicant while deciding the date from which the maintenance is to be granted. A blanket interference with the Magistrates order in the manner aforesaid, may result in grave injustice and untold miseries to the claimants who may have managed to survive, during pendency of proceedings, on loans or by sale of ornaments etc. or subscriptions from relations and sympathisers. In Makudum v. Nargis Bano and Anr. , 1982 Mat. L. R. 366, it was held that where the wife and the child had been neglected, they were entitled to maintenance from the date of application. Following this decision, in Sunita Bhutani v. Satpal, 1985 (2) Crimes 1007, the modification by the Additional Sessions Judge without assigning reason, directing payment from the date of order, was held to be unwarranted and the order of the Magistrate granting maintenance from the date of application was restored.

(14.) THE claimants have now been relieved by the decisions of Supreme Court in Mohd. Ahmed Khan v. Shah Bano Begum and Ors. , AIR 1985 SC 945 [LQ/SC/1985/147] and Smt. Savitri v. Govind Singh Rawat, AIR 1986 SC 984 [LQ/SC/1985/329] , laying down that the Magistrate can grant interim maintenance. In the absence of any such order, it is essential for the Magistrate to enquire the source from which the wife maintained herself and her child, if any, the conduct of parties during the proceedings and other relevant matter so as to properly decide the date from which the maintenance may be payable. Where the wife maintained herself and children by selling ornaments and collecting funds from the relations, the Court awarded maintenance from the date of application, S. A. Kaiser v. Noor Sahan, 1980 Cr. L. J. 611 Cal.

(15.) NEXT question for decision is whether the date of order in Sub-section (2) of Section 125 (2) could also be the date of revisional order It is settled by catena of cases that maintenance can be granted either from the date of order of the Magistrate or from the date of application before him. The Magistrate has no discretion to allow it from a third date. There is also no provision for awarding maintenance prior to the date of application, Rosa Cracker v. Emperor, AIR 1928 Mad. 899 [LQ/MadHC/1927/421] , Abdul Rahim v. Mst. Amir Begum, AIR 1926 Lah. 532 and Enamul Haque v. Bibi Taimnissa, AIR 1967 Pat. 344 [LQ/PatHC/1966/150] . Thus the Court cannot award maintenance from the date of childs birth, Janamma v. Kuthappa Panicker, AIR 1959 Ker. 366 [LQ/KerHC/1958/291] .

(16.) IN Gafoor Ahmed v. Amnabi, Cr. R. No. 22 of 1983 (Indore) decided on 7-8-1986, Shri V. D. Gyani, J. held as under :

"so far as the question of making the order restrospective, the learned Sessions Judge in his order has not indicated any reason, for doing so. No doubt, it is within the discretion of the Court making the order of maintenance to award a sum either from the date of application or from the date on which the order is passed. In such matters, it is expected of the Revisional Court to take realistic view of the matter as the proceedings, at times, consume considerable time before an order is passed, accumulation of arrears of maintenance allowance, in case the order is made retrospective in effect, at times results in great deal of hardship. To avoid this, the Court should consider awarding of interim maintenance, which has now been held to be awardable by the Supreme Court, if such interim maintenance is not asked for and awarded, at least the Revisional Court should, in the event of making the order restrospective in effect, record reasons for doing so, lest it results in not merely a great deal of hardship to the husband but also deprives forums of granting, the grounds or reasons on the basis of which a retrospective maintenance order is passed. As in this case, no reasons are indicated, the ends of justice would sufficiently be met if the order is made effective from the date, it was made by the learned Sessions Judge. "

(17.) IN the aforesaid case (Gafoor Ahmeds case), the Trial Court had dismissed the application Under Section 125. The Revisional Court granted maintenance from the date of application. In order to avoid hardship to the husband due to accumulated arrears, Gyani, J. held that reasons must be recorded for granting maintenance from the date of application. Since no reasons were given by the Revisional Court, he directed the maintenance to be payable from the date of Revisional Courts order. Thus, he carved out a third date, not stipulated in Section 125 (2), This was beyond the scope of Section 125 (2).

(18.) WITH utmost respect to Gyani,. J. , we are of the opinion that accumulation of large arrears is hardly a ground to deny the wife if she makes out a case for grant of maintenance from the date of application. We may refer to 1965 Guj. LJ. 170 = (1965) 67 Punjab Law Reporter 263, [LQ/PunjHC/1964/371] wherein it was held :

"the fact that arrears have accumulated is no justification for writing them off. The argument that the petitioner-wife had somehow been managing to earn some amount to make her both ends meet during the interval is inconclusive. That the husband has all these years been neglecting the wife and has also been persisting in denying his marriage with her and their living together, in his efforts to avoid his liability, is also not irrelevant and may well be kept in view. It is not a matter of favour to the petitioner-wife, nor is she begging for any charity. It is her right which is being enforced by the Court and indulgence to the respondent-husband in this respect can only be at the cost of the petitioner-wifes right. "

In Hemibai v. Kundibai, AIR 1940 Sind 222, the opposite party was found to have behaved badly, so as not to deserve any sympathy or consideration, it was held that the maintenance should be awarded from the date of application.

(19.) IN view of the foregoing discussion, we hold that the date of order in Section 125 (2) means the date of order of the Magistrate and not the date of revisional order. Gafoor Ahmeds case so far it directs payment of allowance from the date of order of the Revisional Court, is not good law. The answers to the questions referred are :

(i) Recording of reasons is essential in either case namely when the maintenance is granted from the date of application or from the date of order. (ii) In the absence of reasons, it does not automatically follow that the maintenance should be awarded from the "date of order". (iii) The "date of order" in Section 125 (2) means the date of Magistrates order and not the revisional order.

The record be placed before the Single Judge for disposal of the revisions.