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1980 DIGILAW 312 (KER)

MANI v. ESTHER

1980-11-21

U.L.BHAT

body1980
Judgment :- 1. In this revision petition the order passed by the Chief Judicial Magistrate, Thodupuzha in M.C. No. 3 of 1978 directing the revision petitioner to pay maintenance to respondents 2 to 4 herein is challenged. The revision petitioner was directed to pay Rs. 70/- per mensem to the second respondent, Rs. 50/- per mensem to the 3rd respondent and Rs 30/- per month to the 4th respondent from the date of the petition, viz., 13-9-1977. 2. It is admitted that the revision petitioner (C. pw. 1) and the first respondent (Pw. 1) were married and respondents 2 to 4 were born to them, The spouses are working as teachers On the date of the petition, the children were studying in the VII, V and II standards respectively. The spouses' are living separately from 2-8-1976 onwards. The children are living with the mother. The wife did not claim maintenance for herself as she is employed and is earning income. On behalf of her three children a consolidated amount of Rs. 500/- per month was claimed. The court ordered only Rs. 150/- per month in all. The learned counsel for the revision petitioner contends that the quantum fixed by the trial court is excessive and that the learned Magistrate was in error in directing maintenance to be paid from the date of the petition and ought to have directed it to be paid from the date of the order. 3. It is true that the mother of the three children is earning as a teacher. But, that has no relevance in fixing the quantum of maintenance payable by the father Father is a teacher. His gross emoluments are Rs. 703 as is seen from Ext. D13 Salary certificate. According to Ext. D13, after deduction, he gets only Rs. 536.78. Deductions include, provident fund subscription, L I.C. premium, a cut for provident loan and also deduction of Rs. 25/- for Bishop's Old Age Home Ignoring the last deduction, his income could be assessed as Rs. 550/- per month. It is in evidence that C. pw. 1 constructed a house by taking a loan from the L.I G H Scheme from the Government. He Has to repay the loan amount in annual instalments of Rs. 1082/-which will work out about Rs. 90/-per month He has no case that he has any other commitment except the discharge of a chitty loan. 4. 1 constructed a house by taking a loan from the L.I G H Scheme from the Government. He Has to repay the loan amount in annual instalments of Rs. 1082/-which will work out about Rs. 90/-per month He has no case that he has any other commitment except the discharge of a chitty loan. 4. Pw.1's case is that her husband has let out the building constructed with the loan and is earning Rs. 300/-per month. This is denied in the counter, but, it is admitted that CPw 1 is residing in one room in the building and the remaining portion is occupied by Dr. Punnose. The counter does not explain the circumstances under which the building happened to be occupied by Dr. Punnose. Dr. Punnose is working in the hospital run by pw. 2. pw. 2 has deposed that he arranged the building tor Dr. Punnose and that he himself has spent a sum of Rs. 7,200/-for the repairs of the house and therefore no rent is being paid. He stated Sn clearly indicating that some rent must have been fixed. It was taken for a period of two years. That is why probably pw. 1 has deposed that the monthly rent is Rs. 300/- Whether CPw. 1 gets the money in hand or not, he is deriving a profit from the building which of course may go in adjusting the loan. The period of two years has expired in 1978. CPw. 1 has not cared to explain what arrangement has been made thereafter 5. It was in the light of this evidence that the learned Magistrate fixed the quantum of maintenance at a total of Rs.150/-per month The amount fixed cannot be said to be excessive. It is a reasonable amount; or if it errs, it docs so on the lower side and not the higher side. The evidence does not justify the argument of the learned counsel for the revision petitioner that his client cannot afford to pay this amount. In any event, there is no reason to justify interference with the quantum in revision. 6. The other argument is that the learned Magistrate erred in directing the payment of maintenance from the date of the petition. What is at stake is maintenance payable for about an year and odd. In any event, there is no reason to justify interference with the quantum in revision. 6. The other argument is that the learned Magistrate erred in directing the payment of maintenance from the date of the petition. What is at stake is maintenance payable for about an year and odd. The learned Magistrate has not given any reason for the direction that the order will take effect from the date of the petition. The learned counsel for the petitioner did not urge any reason for directing that the order must take effect from the date of the order only. 7. S 125 (2) of the Code of Criminal Procedure, 1973 (for short the 'Code') reads thus: "(2) Such allowance shall be payable from the date of the order, or, if so ordered, from the date of the application for maintenance." In interpreting this section we must bear in mind the purpose of the provisions of Chapter IX relating to maintenance. The purpose is to prevent or control vagrancy and destitution in the cases of wives, children and parents. When a destitute wife, child or parent approaches the criminal court and satisfies the court of the existence of the conditions for passing an order under S.125 of the Code, in the normal course, the applicant must get maintenance from the date of the petition, that is, the date on which he approached the court. There is no provision in Chapter IX of the Code, which takes away the power of the court to direct payment of maintenance from the date of the petition; but, on the other hand such power is recognised or reserved under S.125 (2) of the Code A court may omit to mention date from which the maintenance order is to take effect. The court may specifically direct the order to take effect from the date of the petition. The court may specifically direct the order to take effect from the date of the petition. The court may also direct order to take effect from the date of the order Sub-section (2) of S 125 of the Code means only that where court has not specifically directed that the order shall take effect from the date of the petition or where the order is silent on the point, it shall be payable from the date of the order It cannot be said that whenever a court gives a specific direction either way, it must be supported by reasons recorded in writing It is open to the court to take either view and incorporate it in the judgment. Considering the purpose of the provisions of Chapter IX of the Code and the specific object they seek to achieve, the Court has full discretion to direct that the allowance is payable from the date of the petition. 8. In the present case in spite of the fact that the father has been separated from the children for a period of nearly three years, i. e from 1976 to 1979, the father, C. P. W. 1 did not care to send any money for the maintenance of the children. The children had to be maintained during the interregnum period. Hence I do not find any reason to interfere with the direction given by the learned trial Magistrate. In the result, this revision petition is dismissed. Dismissed.