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2004 DIGILAW 246 (PAT)

Ram Bharosa Singh v. State Of Bihar

2004-03-01

NAVIN SINHA

body2004
Judgment Navin Sinha, J. 1. This application under Section 482 Cr.P.C. has been preferred for quashing order dated 30.1.2001 passed in Maintenance Case No. 36 of 1994 (Trial No. 518/2001) by the Judicial Magistrate, Sasaram, whereby the court below has directed the petitioner to pay Rs. 500/- per month as maintenance to the applicants minor son Bishwajeet. This order has been passed on. an application under Section 125 Cr.P.C. preferred by the applicant, mother of the child. The court below has directed grant of maintenance from the date of the application till attainment of majority by the said Bishwajeet. By the same order the court below has rejected the applicants prayer for grant of maintenance under Section 125 Cr.P.C. for reasons of an exparte decree for divorce obtained by the petitioner in Matrimonial Case No. 3/94 against the applicant on the ground of adultery is provided for in Section 125 Cr.P.C. 2. The fact of marriage between the parties and that Bishwajeet is the minor son of the petitioner is not in dispute. The petitioner also admits his liability to pay maintenance for his minor son. The petitioner however contends that the award of maintenance to the minor child Bishwajeet from the date of application i.e. 5.9.1994 would operate onerously on him. The petitioner contends that he is a poor man with meagre income and that he would not be in a position to comply with the order of the Court. 3. Counsel for the petitioner has submitted that the court below at best may have granted maintenance from the date of the order and that the grant of maintenance to the minor child from the date of the application without setting out reasons for the same is bad and is therefore liable to be set aside. Counsel for the petitioner relies upon the judgments reported in 1992 Criminal Law Journal 1028, 2001 Criminal Law Journal 2064 and 1998 Criminal Law Journal 1464. 4. Counsel appearing for the opposite party i.e. the mother has filed a counter affidavit. It has been stated therein that the applicant had filed Complaint Case no. 50/ 90 on 16.2.90 against the petitioner under Section 498A iPC in which cognizance was taken. The petitioner and other accused therein then appeared and offered to compromise the matter by agreeing to keep the applicant at home with due respect. The Complaint Case no. It has been stated therein that the applicant had filed Complaint Case no. 50/ 90 on 16.2.90 against the petitioner under Section 498A iPC in which cognizance was taken. The petitioner and other accused therein then appeared and offered to compromise the matter by agreeing to keep the applicant at home with due respect. The Complaint Case no. 50/90 was thus disposed of on 8.5.1992 by learned CJM Sasaram in terms of the compromise. It has been stated in para 8 of the counter affidavit that the petitioner and his family members again started torturing the applicant when she was compelled to file Maintenance Case no. 36/94. Further she was left with no alternative for the sustenance of herself and her son who was three years old at the relevant time. It is worthy to note that even in the Matrimonial Case no. 3/94 the applicant had appeared in the case, filed written statements and denied the allegation. Quite obviously she was not in a position to economically contest the case given the fact that she had a minor child to look after also. The applicant has further stated that the petitioner has an income of Rs. 5000/- per month. 5. Having considered the submissions of the parties the Court is of the view that there cannot be a hide bound and pedantic approach to the provisions of Section 125 Cr.P.C. with regard to grant of maintenance. Whether the maintenance should be from the date of the order or from the date of the application for the same would quite obviously depend upon and vary according to the facts and circumstances of the case. It may be, that in some cases reasons can be spelt out in black and white while in others the reason may be discernible from course of events. What is relevant is that there is material on record to justify the order of the court below granting maintenance either from the date of the application or the date of the order as the case may be. A strict interpretation of the provisions of Section 125 Cr.P.C, requiring recording of specific reasons for grant of maintenance from the date of the application may defeat the very purpose of the welfare nature of Section 125 Cr.P.C. In the facts of the present case, it emerges that the applicant had originally filed the Complaint Case no. A strict interpretation of the provisions of Section 125 Cr.P.C, requiring recording of specific reasons for grant of maintenance from the date of the application may defeat the very purpose of the welfare nature of Section 125 Cr.P.C. In the facts of the present case, it emerges that the applicant had originally filed the Complaint Case no. 50/90 under Section 498A IPC against the petitioner. In the said case the petitioner held out an offer for compromise. Perhaps this was an offer made by the petitioner to get out of the criminal prosecution. He succeeded. The prosecution ended in compromise with the petitioner offering to keep the applicant with him at home. It appears that she returned to the maternal home and a child, Bishwajeet, was borne out of the wedlock thereafter. It appears subsequently that the marriage could not continue and the compromise became an illusion. The petitioner filed Matrimonial Case no. 3/94 seeking dissolution of marriage by decree of judicial separation. The applicant appeared therein and opposed the allegation of adultery but appears to have been unable to contest for perhaps reasons of economic inability. On 5.9.1994 the applicant preferred an application under Section 125 Cr.P.C. for maintenance for herself and her minor son. The minor son was aged about three years at the time the application was preferred by her. It is now apparent that the compromise offered by the petitioner in Complaint Case no. 50/90 was only an illusion to escape prosecution under Section 498A. 6. Learned Counsel for the petitioner has relied upon a judgment in the case of Smt. Vimla vs. Surendra Singh reported in 1998 Cri.L.J. 1464, in support of his plea that in a similar situation where the husband was earning approximately Rs.2000/-per month the maintenance amount of Rs. 400/- would be justifiable. The same vary judgment in para 18 thereof has directed that the amount shall be paid from the date of the application itself. Counsel for the petitioner next relied upon the judgment in the case of Samaydin vs. State of U,P. reported in 2001 Cri.L.J. 2064, in support of his preposition that in normal circumstances maintenance must be granted from the date of the order. In only extra ordinary circumstances it may also be ordered to be paid from the date of the application. In only extra ordinary circumstances it may also be ordered to be paid from the date of the application. The same very judgment records that an extraordinary circumstance may be dilatory tactics adhered to by the husband in the disposal of the proceeding or untold cruelty practiced against his wife. No extensive ground can be formulated in support of the preposition. In the present case there is an elaborate discussion by the Magistrate and the extraordinary circumstances have also been discussed hereinabove from the records which demonstrate that the grant of maintenance from the date of the application was fully justified. 7. Last judgment relied upon by the Counsel for the petitioner is in the case of Smt. Krishna Jain vs. Dharam Raj Jain reported in 1992 Cri.L.J. 1028. Reference may be made to the case of Israfil Mian vs. Mostt. Bibi Taibunnisa reported in 1971 PLJR 666. In this case this Court has been pleased to hold that the Section should be construed liberally and beneficial to the applicant while deciding the date from which the maintenance is to be granted. A blanket interference with the Magistrate order may result in grave injustice and untold misery to the applicant who may have managed to survive during pendency of proceeding on loans or by sale of ornaments etc. or subscriptions from the relatives and sympathizers. 8. In the aforesaid facts and circumstances this Court is of the view that there is no illegality in the grant of maintenance for the minor child @ Rs. 500/- per month from the date of the application that was made by the petitioners wife i.e. 5.9.94 and that in the facts and circumstances of the case the Magistrate was fully justified in doing so. The quantum of maintenance also cannot be faulted and appears to be very reasonable given on escalating cost of living in todays world. The petitioner is bound to and has a legal and moral duty to maintain his son. A plea of inability for lack of financial ability as a defence to the grant of maintenance has only to be stated to be rejected. More so when the maintenance amount granted is utmost reasonable. The petitioner does not dispute the fact that Bishwajeet is his son. It would thus be his legal and moral duty to support the child. The applicant has already been denied maintenance. More so when the maintenance amount granted is utmost reasonable. The petitioner does not dispute the fact that Bishwajeet is his son. It would thus be his legal and moral duty to support the child. The applicant has already been denied maintenance. The same has not been questioned by her. This Court cannot be oblivious to this practicality. 9. Counsel for the petitioner lastly contended that in case this Court be not inclined to interfere with the award of maintenance @ Rs. 500/- per month from the date of the application, the arrears may be apportioned in instalments and that the current payment from the date of the order shall be paid promptly. It is thus clarified that the maintenance amount from 30.1.2001 up-to-date shall be paid by the petitioner immediately and he shall continue to pay the maintenance amount of Rs. 500/- per month promptly month to month. In so far as arrears and maintenance payable from 5.9.1994 to 30.1.2001 is concerned the same may be paid in 12 equal instalments, the first instalment shall be payable immediately and each instalments thereafter shall be paid after intervals of every three months. 10. There is thus no merit in the present application. The same is dismissed except to the extent indicated above granting payment of arrears in instalments. The interim order dated 21.1.2003 thus stands vacated.