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Madhya Pradesh High Court · body

2001 DIGILAW 304 (MP)

Deepa alias Gopi v. Nand Kishore

2001-04-03

S.C.PANDEY

body2001
Short Note This revision under section 397/401 of the Code of Criminal Procedure is directed against the order dated 24.9.1993. passed by IIIrd Additional Sessions Judge. Bhopal. in Criminal Revision No. 172/93. arising out of the order dated 4.5.1993. passed by the Judicial Magistrate, First Class. Bhopal. in MJC No. 41/87. The learned Magistrate granted maintenance to the applicant at the rate of Rs. 500/- per month from the date of filing of the application under section 125 of the Code of Criminal Procedure. that is to say. 17.2.1986. The learned Additional Sessions Judge has reversed the order of the learned trial Magistrate has not the ground that the trial Magistrate has not given any reason for granting maintenance from the date of filing of the application. It is apparent that the right to maintenance accrues when a wife is deserted. The right of maintenance under section 125 of the Code of Criminal Procedure would accrue when the husband neglects or refuses to maintain his wife. and that is the date from which the wife can always claim maintenance in civil law. However. the application under section 125 of the Code of Criminal Procedure gives discretion to the Magistrate to grant monthly allowance not exceeding to Rs. 500/- (as it was then. prior to amendment by the State of Madhya Pradesh). as and when so thought fit by the Magistrate. The sub-section (2) of section 125 of the Code of Criminal Procedure makes it payable from the date of order or from the date of filing of the application if ordered by the Magistrate. It is on this point of sub-section (2) of section 125 of the Code of Criminal Procedure the learned Additional Sessions Judge relied to say that the learned trial Magistrate should have given the reasons for exercising her discretion to grant maintenance from the date of filing of the application. It is well established that the normal rule is that maintenance should be granted from the date of order and in certain cases, the Magistrate may order from the date of filing of the application for maintenance. It is clear from the facts of this case on record that the applicant had filed the application on 17.2.1986. The final order for grant of maintenance was passed on 4.5.1993. It is clear from the facts of this case on record that the applicant had filed the application on 17.2.1986. The final order for grant of maintenance was passed on 4.5.1993. A considerable period had already elapsed during the course of legal proceedings and the applicant could not be blamed for the pendency of the case totally. In such circumstances. if the maintenance was granted from the date of filing of the application. the learned Additional Sessions Judge should not have set aside the order of the trial Magistrate on the technical ground that the Magistrate has not stated the reasons for doing so. The learned Additional Sessions Judge should have also considered if there were any valid reason for setting aside the order of Judicial Magistrate. First Class on merits. that he has not done. This Court has examined the merits of the case for discretion. It is also clear that the wife is entitled to interim maintenance looking to the fact that the proceedings under section 125 of the Code of Criminal Procedure has taken longer time than that was intended by the Code of Criminal Procedure. The Supreme Court itself has permitted the grant of interim maintenance. In this case interim maintenance was not granted to the applicant. This fact is also of great consequence in holding that the applicant had good case on merits for grant of maintenance from the date of filing of the application. Moreover. there was no valid ground for refusal on the part of the non-applicant to maintain the applicant and. therefore, too. the ultimate conclusion of the learned trial Magistrate should have been confirmed by the learned Additional Sessions Judge, granting maintenance to the applicant from the date of filing of the application. For all the aforesaid reasons. this revision deserves to be allowed and it is hereby allowed. accordingly. The impugned order dated 24.9.1993 passed by the Court below is hereby set aside and that of the trial Magistrate. dated 4.5.1993 is hereby restored.