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2006 DIGILAW 625 (KER)

O. K. Manoj v. M. Sindhu

2006-09-27

R.BASANT

body2006
Judgment :- This revision petition is directed against a direction issued to the petitioner by the Family Court under Section 125 Cr.P.C. to pay maintenance at the rate of Rs.1500/- p.m. to the claimant, admittedly his wife. 2. The marriage between the contestants was solemnized on 6.9.2004. Separate residence of the spouses is admitted. While the claimant wife asserted that cruelty of the husband and the in-laws had led to disturbance in her mental state, the petitioner contended that the claimant was mentally ill and the marriage was not valid for that reason. Proceedings for declaration of nullity of marriage is pending before the Family Court, it is submitted. 3. Marriage and separate residence were admitted. There was no offer to maintain the wife on condition that she lives with the husband. The learned Judge of the Family Court in these circumstances proceeded to consider the quantum of maintenance payable and directed payment of maintenance at the rate of Rs.1,500/- p.m. The petitioner claims to be aggrieved by the said order. 4. Pendency of proceedings for nullity of marriage, when no interim directions have been passed in such proceedings, cannot certainly be a ground to claim absolution from liability to pay maintenance under Section 125 Cr.P.C. A wife cannot be permitted to starve until the proceedings for declaration of nullity comes to its final conclusion. Needless to say, if the petitioner succeeds in the proceedings for nullity of the admittedly solemnised marriage, he will certainly be entitled to get the order modified (vacated) by invoking the provisions of Section 127 Cr.P.C. That cannot certainly be a ground for absolution from liability under Section 125 Cr.P.C. 5. The counsel then contends that the amount of Rs.1,500/- directed to be paid is excessive. I remind myself of the nature, quality and contours of the revisional jurisdiction of superintendence and correction. Unless the findings of fact or exercise of discretion by the trial court is found to be grossly erroneous or perverse and such vice in turn leads to miscarriage of justice, the revisional jurisdiction cannot be lightly invoked. In the instant case, there was assertion and counter assertion about the income and earnings of the petitioner. It is not necessary for me to embark on a detailed discussion on that aspect. In the instant case, there was assertion and counter assertion about the income and earnings of the petitioner. It is not necessary for me to embark on a detailed discussion on that aspect. The direction to an able bodied person, assuming that he has no better credentials, to pay Rs.1,500/- p.m. to his recently married spouse cannot be held to be excessive as to justify revisional interference. The challenge on this aspect also fails. 6. Undaunted, the learned counsel for the petitioner contends that the impugned order in so far as it directs payment of maintenance from the date of the petition is perverse and must be set aside. The counsel relies on Section 125(2) Cr.P.C. I extract the same below: S.125(2): Any such allowance for the maintenance or interim maintenance and expenses for proceeding shall be payable from the date of the order, or, if so ordered, from the date of the application for maintenance or interim maintenance and expenses of proceedings, as the case may be” (emphasis supplied) There can be no dispute in the light of the language of Section 125(2) that ordinarily an order has to take effect from the date of the order and not from the date of the petition. Unless the court so orders, the order cannot take effect from the date of application. The counsel rationally deduces that therefore there must be reasons to justify a direction for payment of maintenance from the date of the petition. I have no quarrel with that proposition also. 7. The decisions of the High Courts of Allahabad and Andhra Pradesh in Samaydin v. State of U.P. (2001 (2) KLJ (NOC) 1) and Elizabath Rani v. Pradeep Kumar (2001 (1) KLJ (NOC) 25) are relied on by the learned counsel for the petitioner. 8. I agree with the learned counsel for the petitioner that reasons must be available to justify a direction for payment of maintenance from the date of the petition and not from the date of the order. It cannot be the rule of the thumb that merely because the first court had not adverted to the reasons in detail the direction for payment maintenance from the date of the application must be set aside in revision. The question is whether reasons do exist indisputably. It cannot be the rule of the thumb that merely because the first court had not adverted to the reasons in detail the direction for payment maintenance from the date of the application must be set aside in revision. The question is whether reasons do exist indisputably. Where such reasons exist, it would be an improper invocation of the jurisdiction in revision to interfere with such a direction. That precisely appears to be the situation in the case on hand. The couple were recently married. The wife had some mental illness. The fact that such mental illness is there is not by itself a sufficient reason to justify refusal to pay maintenance. There is no case that the petitioner had paid any maintenance to the wife from the date of the petition to the date of the order. Sufficient reasons are thus eloquently declared in the facts of the case itself. There was no offer to maintain the claimant on condition that she lives with the petitioner. In the given facts there could not have been any dispute or doubt about the liability for maintenance. Still no amount was paid even after the filing of the petition. I am, in these circumstance, satisfied that the impugned direction, which, according to me, advances the interests of justice and does not at all result in any miscarriage of justice, deserves to be upheld and does not warrant interference. The challenge fails. 9. This revision petition is hence dismissed.