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2013 DIGILAW 1305 (RAJ)

Noojhat Aara v. State of Rajasthan

2013-07-18

SANDEEP MEHTA

body2013
JUDGMENT 1. - The instant miscellaneous petition has been filed by the petitioner challenging the order dated 7.7.2012 passed by the learned Addl. Sessions Judge (FT) No. 2, Bikaner in revision and the order dated 21.10.2011 passed by the learned Addl. Chief Judicial Magistrate No. 2, Bikaner in Case No. 217/2006. 2. The learned Magistrate allowed the application filed by the petitioner under Section 125 Cr.P.C. and directed payment of maintenance to her @ Rs. 6,000/- per month. The learned Addl. Sessions Judge affirmed the order passed by the learned Magistrate granting maintenance. 3. The grievance of the petitioner is that the maintenance should have been awarded from the date of filing of the application whereas the learned Magistrate accepted the application and made the maintenance order effective from the date of order. The petitioner thus challenged the order passed by the learned Magistrate in revision and the Revisional Court also affirmed the same. Hence, the petitioner has approached this Court by way of the instant miscellaneous petition seeking a direction that the award of maintenance passed in her favour should be made effective from the date of the filing of the application. 4. Notice of the miscellaneous petition was issued to the respondents Modh. Hussain, the petitioner's husband but he chose not to appear despite serving the notice. 5. Mr. S.K. Verma, learned counsel placing reliance on the decision of the Hon'ble Apex Court in Slmil Kumari Devi v. Kishtin B. Pathak, reported in (2008) 9 SCC 632 , wherein the Apex Court has clearly expressed that no reasons are required to make an order of maintenance effective from the date of filing of the application. Learned counsel submits that the petitioner filed the application for maintenance in the year 2008. The respondent Mohd. Hussain was served with the notice of the application in September, 2008 and thereafter the matter was delayed for some time for filing of the reply by the respondent. Thereafter the matter was kept pending for the evidence of the petitioner for some time and ultimately, the petitioner's evidence could be completed by June, 2010. Thereafter the case was adjourned from time to time for the evidence of the respondent which could be completed in June, 2011 where after the application for maintenance was allowed. Learned counsel submits that the petitioner was not responsible for the delay in the proceedings before the learned Magistrate. Thereafter the case was adjourned from time to time for the evidence of the respondent which could be completed in June, 2011 where after the application for maintenance was allowed. Learned counsel submits that the petitioner was not responsible for the delay in the proceedings before the learned Magistrate. Learned counsel thus submits that keeping in view the observations made by the Hon'ble Apex Court in SI tail Kumari Devi's case (supra) the interest of justice warrants that the order of maintenance should have been made effective from the date of filing of the application rather than the date of the order as was directed by the learned Magistrate. Learned counsel submits that the trial Court gave no reasons as to why the order of maintenance was being made effective from the date of the order only and was not being awarded from the date of filing of the application. Thus, he urged that the miscellaneous petition deserves to be accepted and the order of maintenance should be made effective from the date of filing of the application. 6. Heard and considered the arguments advanced at the bar. Perused the orders impugned and the material available on record. As the respondent No. 2 has not put in appearance despite receiving the summons of he petition, the contentions of the learned counsel for the petitioner have remained un controverted. Thus, they have to be appreciated keeping in view the reasons given by the Courts below for denying maintenance to the petitioner from the date of filing of the application. The learned Magistrate has given no reasons as to why the application was being allowed from the date of order and not from the date of filing of the application. The Revisional Court held that the trial Court exercised its discretion and did not award the maintenance from the date of the filing of the application, and therefore, there was no reason to substitute its discretion over the discretion exercised by the learned Magistrate whilst passing the order impugned. If these reasons are considered in the light of the view expressed by the Hon'ble Apex. Court in the case of Slmil Kumari Devi's case, this Court is of the opinion that the view taken by the learned Magistrate as well as the Revisional Court would not be acceptable. If these reasons are considered in the light of the view expressed by the Hon'ble Apex. Court in the case of Slmil Kumari Devi's case, this Court is of the opinion that the view taken by the learned Magistrate as well as the Revisional Court would not be acceptable. The Apex Court in Shail Kumari's case held that the 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. The Apex Court also observed that duration of litigation is not within the power or in the hands of the applicant and entitlement to maintenance should not be left to the uncertain date of disposal of the case. It was further observed that keeping in view this hard reality, this Court in Savitri held that in absence of prohibition to grant 'interim' maintenance such power could be read in the salutary provision of Section 125 of the Code ensuring maintenance to unable wife to maintain herself during the pendency of proceedings. 7. In view of the aforesaid circumstances, this Court is of the opinion that the petitioner was denied interim maintenance during the pendency of the application without any good reason. The proceedings kept on lingering for a period of 3 years and a major portion of the period was taken by the respondent or his counsel though some delay can also be attributed to the petitioner and her counsel as well. Thus, though the petitioner deserves to be awarded the maintenance from the date of filing of the application but a balance has to be struck so that the husband does not get unduly burdened by the arrears of maintenance which have accrued till date. 8. In view of the aforesaid, this Court is of the opinion that an amount of Rs. 2,000/- from the date of the filing of the application shall be a reasonable amount payable to the petitioner as maintenance for the period during which the application for maintenance remained pending before the learned Magistrate. 9. Accordingly, the miscellaneous petition deserves to be accepted and is hereby allowed. The order dated 21.10.2011 passed by the learned Addl. 2,000/- from the date of the filing of the application shall be a reasonable amount payable to the petitioner as maintenance for the period during which the application for maintenance remained pending before the learned Magistrate. 9. Accordingly, the miscellaneous petition deserves to be accepted and is hereby allowed. The order dated 21.10.2011 passed by the learned Addl. Chief Judicial Magistrate is hereby modified and it is hereby directed that the petitioner shall be entitled to receive maintenance from the respondent from date of filing of the application. The quantum of maintenance award able to the petitioner from the date of filing of the application to the dale of the decision thereof is decided in fixed at Rs. 2,000/-.The miscellaneous petition is allowed in terms indicated above.Record of trial Court be sent back forthwith.Petition allowed. *******