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2003 DIGILAW 682 (ORI)

Smitarani Mohanty v. Suresh Kumar Mohanty

2003-12-03

PRADIP MOHANTY

body2003
JUDGMENT PRADIP MOHANTY, J. — This revision has been filed challeng¬ing the order dated 18.9.2001 passed by the learned Ad-hoc Addl.Sessions Judge, Bhubaneswar, In Crl.Revision No.60/9/34 of 2001/2000, modifying the order dated 24.4.2000 passed by the learned Judicial Magistrate, First Class, Bhubaneswar, in Crl. Misc.Case NO.147 of 1997. 2. The fact of the case, in brief, is that petitioner No.1 is the wife and petitioner No.2 is the daughter of the opposite party. The opposite party herein is working as Cashier in the Punjab National Bank. After their marriage on 12.6.1993, peti¬tioner No.1 and the opposite party lived as husband and wife for about one year. At the time of marriage the father of petitioner No.1 had given colour T.V., cash of Rs. 50,000/-etc. as dowry including various furniture and other house-hold articles. After the marriage, the opposite party demanded a Refrigerator, V.C.R. and Washing machine to fulfill the said demand, after which the opposite party started torturing the wife-petitioner No.1. When petitioner No.1 was carrying petitioner No.2, in an advanced stage of pregnancy, the opposite party left petitioner No.1 in her parental house where petitioner No.2 was born. It is also stated that the opposite party-husband did not take care of his wife and the child and refused to maintain them. Hence this crl. misc. case. The opposite party in his objection, admitting the factum of marriage with petitioner No.1 and also admitting petitioner No.2 as his daughter, specifically denied the allegation of demand of dowry. In his objection he also stated that, he wanted to compro¬mise the matter which could not be materialised, as his wife-petitioner No.1 is adawment by staying in her father’s house and has falsely started this case. In order to prove their case, the petitioners examined as many as two witness including petitioner No.1 and the opposite party examined himself from his side. 3. After hearing the parties, the learned Magistrate by order dated 24.4.2000 allowed the crl. misc. case by directing the opposite party to pay Rs. 500/- per month to each of the petitioners towards maintenance from the date of filing of the crl.misc. case. 3. After hearing the parties, the learned Magistrate by order dated 24.4.2000 allowed the crl. misc. case by directing the opposite party to pay Rs. 500/- per month to each of the petitioners towards maintenance from the date of filing of the crl.misc. case. Against that order the opposite party preferred a revision before the learned Sessions Judge, Bhubaneswar in Crl.Revn.No. 60/9/34 of 2001/2000 which was ultimately heard by the learned First Ad-hoc Addl.Sessions Judge, Bhubaneswar, and by the impugned order the revisional Court modified the order with regard to the payment of maintenance from the date of passing of the order by the lower Court, but not from the date of passing of the order by the lower Court, but not from the date of filing the crl.misc.case. Against that order the petitioners have preferred this revision. 4. The short question in this revision is, whether the order of maintenance will be sustained from the dae of filing of the application or the date of passing of the order by the learned Magistrate. 5. Mr. Prusty, counsel for the petitioners, urged that the order of maintenance ought to have been made payable from the date of application and not from the date of passing of the order. He further urged that if specific prayer is made in the application, the order may be made operative in consonance with the prayer made in the application. In support of his contention, Mr. Prusty relied on a decision reported in A.I.R. 1992 Madhya Pradesh 72, Smt. Indira Gagele v. Shailendra Kumar Gagele. Mr. Panda, counsel appearing for the opposite party, argued that no illegality has been comitted by the revisional Court. The order of the Judicial Magistrate, First Class, granting main¬tenance from the date of application is, rather, illegal. Mr. Panda further argued that the delay of disposal of this proceed¬ing was due to the laches of petitioner No.1 and not of the opp.party. Therefore, grant of maintenance from the date of passing of the order is found to be reasonable. 6. The question that arises for consideration is, whether the application was kept pending and the parties making the application are responsible for protracting the proceeding. Therefore, grant of maintenance from the date of passing of the order is found to be reasonable. 6. The question that arises for consideration is, whether the application was kept pending and the parties making the application are responsible for protracting the proceeding. In such a case, the Court has to bear in mind two maxims of equity which are well settled, the first one is “Actus Curiae Neminem Gravabit” or an act of the Court shall prejudice no one. The above maxim should, however, has to be applied with caution. The other maxim is, “Fiat justitia”, or justice be done and that justice should be fair causing prejudice to no one. Applying the above test to the fact of the instant case, nothing has been brought on record to suggest that the petition¬ers were in any manner responsible for protracting the proceed¬ing. This being so, in the opinion of this Court, the petitioners cannot be deprived of their right for maintenance from the date of application. More over, it is not disputed that the petition¬ers have not been provided with any interim maintenance during pendency of the proceeding before the lower Court. In such cir¬cumstance, the views taken in the case of Indira Gagele (supra) appears to have more appropriate application to the facts of the present case. Therefore, this Court is inclined to allow the revision and set aside the impugned order of the revisional Court. 7. In the result, the crl. revision is allowed. The im¬pugned order of the revisional Court is set aside and that of the learned Judicial Magistrate, First Class, Bhubaneswar, is affirmed. No cost. Cri. Rev. allowed.