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2015 DIGILAW 370 (RAJ)

Sudha v. State of Rajasthan

2015-02-09

M.N.BHANDARI

body2015
JUDGMENT : M.N. Bhandari, J. By this petition, challenge is made to the order dated 04.08.2009 passed by the Additional Sessions Judge, Hindaun City, District Karauli on the application under Section 127 Cr.P.C. 2. The learned counsel for the petitioner submits that after acceptance of the application under Section 125 Cr.P.C., one application under Section 127 Cr.P.C. was filed after a gap of seven years. The aforesaid application was allowed with the enhancement of maintenance from the date of application. 3. The non-petitioner challenged the aforesaid order and the revision petition was allowed vide the impugned orders. The enhanced amount was made payable from the date of order, instead of the date of application. 4. The impugned order has been passed in ignorance of the judgment of the Hon'ble Apex Court in the case of Sau Simian Narayan Niphade and Another v. Narayan Sitaram Niphade and another, reported in 1995 Supp (4) SCC 243. 5. The enhancement of maintenance, either from the date of order or from the date of application, is held to be discretionary. The revisional Court quashed the order for grant of enhanced maintenance from the date of application holding it to be not retrospective and not within the discretion of the Court, thus, the impugned order be quashed while maintaining the order passed by the Additional Chief Judicial Magistrate. 6. Per contra, learned counsel for the non-petitioner submits that there are catena of judgments of the Hon'ble Apex Court holding that, whenever the maintenance is to be enhanced it should be from the date of order and not from the date of application. The revisional Court, thus, applied those judgments while causing interference in the order of the Additional Chief Judicial Magistrate. 7. I have considered the rival submissions of the parties and perused the impugned order. 8. On an application under Section 127 Cr.P.C. maintenance was enhanced and it was made applicable from the date of application. The revisional Court interfered in the said order by granting enhanced maintenance from the date of order. It is on the ground that enhanced maintenance cannot be given retrospectively. Thus, by a rigid rule for all the cases, enhanced maintenance would be from the date of order, taking out the discretion of the Court. 9. The revisional Court interfered in the said order by granting enhanced maintenance from the date of order. It is on the ground that enhanced maintenance cannot be given retrospectively. Thus, by a rigid rule for all the cases, enhanced maintenance would be from the date of order, taking out the discretion of the Court. 9. In the case of Sau Suman Narayan Niphade (supra), the Hon'ble Apex Court kept it at the discretion of the Court to enhance the maintenance either from the date of order or from the date of application. 10. The order passed by the revisional Court is hit by the judgment (supra). The impugned order has been passed without showing any illegality in exercise of discretionary power by the Additional Chief Judicial Magistrates Court. Accordingly, the impugned order is set aside. The order passed by the Additional Chief Judicial Magistrate is maintained. With the aforesaid, the petition is allowed.