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2011 DIGILAW 1288 (RAJ)

Leela Kumari v. State of Rajasthan

2011-07-05

R.S.CHAUHAN

body2011
JUDGMENT 1. - The petitioners are aggrieved by order dated 3.1.2009 passed by the Additional Sessions Judge, Bali whereby, the learned Judge has modified the order dated 26.8.2006 passed by the Additional Chief Judicial Magistrate and has directed that the maintenance shall be paid not from the date of filing of the application, but from the date of the order passed by the learned Magistrate. 2. The learned counsel for the petitioner has relied upon the case of Shail Kumari Devi & Anr. v. Krishan Bhagwan Pathak @ Kishun B. Pathak, AIR 2008 SC 3006 and on the case of Bacchu Singh v. State of Rajasthan & Anr., 2009 (2) Cr.L.R. (Raj.) 1700 in order to contend that the learned Magistrate need not have assign any special reasons tor awarding maintenance from the date of the filing of the application. Therefore, the reason given by the learned Judge that the learned Magistrate was legally bound to assign special reasons for making payment of maintenance from the date of filing of the application and since no special reasons have been assigned, therefore, the order of the Magistrate is deserves to be modified, such a reasoning is untenable. 3. Despite the fact that notices were served upon the respondent No. 2 in the year 2008, nobody has appeared on his behalf. Therefore, this Court has no other option but to proceed ex parte against him. 4. Heard the learned counsel for the petitioner and perused the impugned order. 5. In the case of Shail Kumari Devi (supra), the Hon'ble Supreme Court has opined as under: "44. In our considered opinion, the High Court is not right in holding that as a normal rule, the Magistrate should grant maintenance only from the date of the order and not from the date of the application for maintenance. And if he intents to pass such an order, he is required to record reasons in support of such order. As observed in K. Sivaranz, reasons have to be recorded in both the eventualities. The Court was also right in observing that wherever Parliament intended the Court to record special reasons, care had been taken to make such provision by requiring the Court to record such reasons. Further, the Apex Court observed as under: 46. Again, maintenance is a right which accrues to a wife against her husband/the minute the former gets married to the latter. Further, the Apex Court observed as under: 46. Again, maintenance is a right which accrues to a wife against her husband/the minute the former gets married to the latter. It is not only a moral obligation but is also a legal duty cast upon the husband to maintain his wife. Hence, whenever a wife does not stay with her husband and claims maintenance, the only question which the Court is called upon to consider is whether she was justified to live separately from her husband and still claim maintenance from him? If the reply is in the affirmative, she is entitled to claim maintenance. It is, therefore, open to the Magistrate to award maintenance from the date of application and there is nothing which requires recording of 'special reasons' though he must record" reasons as envisaged by sub-section (6) of Section 354 of the Code in support of the passed by him. 47. We therefore, hold that while deciding an application under Section 125 of the Code, a Magistrate is required to record reasons for granting or refusing to grant maintenance to wives, children or parents. Such maintenance can be awarded from the date of the order, or, if so ordered, from the date of the application for maintenance, as the case may be. For awarding maintenance from the date of the application, express order is necessary. No special reasons, however, are required to, be recorded by the Court. In our judgment, no such requirement can be read in sub-section (1) of Section 125 of the Code in absence of express provision to that effect." 6. In the light of the principle laid down by the Hon'ble Supreme Court, the observation of the learned Judge that the learned Magistrate was duty bound to give special reasons for making payment of maintenance from the date of filing of the application is clearly untenable. 7. Moreover, the learned Courts have to be sensitive to the plight of a wife who finds herself in an emanated suspension. She no longer lives with her husband and yet she finds her condition precarious in her parental home. Unable to maintain herself, she has to struggle with her life. Since it is the legal and moral duty of the husband to maintain the wife, the husband should be asked to pay the maintenance from the date of filing of the application. 8. Unable to maintain herself, she has to struggle with her life. Since it is the legal and moral duty of the husband to maintain the wife, the husband should be asked to pay the maintenance from the date of filing of the application. 8. Therefore, this Court quashes and sets aside the order dated 3.1.2009 and restores the order dated 26.8.2006 and directs respondent No. 2 to pay the maintenance amount to the petitioners from the date of filing of the application i.e., 19.4.2001. 9. With these observations, this petition is, hereby, allowed.Petition allowed. *******