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Rajasthan High Court · body

2016 DIGILAW 919 (RAJ)

Banwari Lal v. Rimjhim

2016-07-04

PRASHANT KUMAR AGARWAL

body2016
ORDER : Mr. Prashant Kumar Agarwal, J. With the consent of learned counsel for the parties the revision petition itself is finally heard. 2. The petitioner, who is father of the respondent, has filed this Criminal Revision Petition under Section 397 read with Section 401 Cr.P.C. against the order dated 11.5.2015 passed by the Judge, Family Court, Sikar in Criminal Misc.Case No.798/2013 whereby the learned Court below allowed the application filed by the respondent under Section 127 Cr.P.C. and by modifying the order dated 20.3.2004 passed by the Additional Chief Judicial Magistrate, Sikar in Criminal Case No.25/2003 granted Rs. 5,000/- per month as maintenance till the marriage of the respondent or she becomes capable to earn her own independent income. It was further directed that any amount of maintenance already paid by the petitioner to the respondent shall be set-off. 3. Brief relevant facts for the disposal of this revision petition are that respondent, who is daughter of the petitioner, filed an application under Section 125 Cr.P.C. before Additional Chief Judicial Magistrate, Sikar and claimed an amount of Rs. 6200/- per month as maintenance from the petitioner. The application filed by the respondent was allowed by the aforesaid Court vide order dated 20.3.2004 and it was ordered that the petitioner shall pay Rs. 2,000/- per month as maintenance to respondent from 22.2.2003 i.e. the date on which application under Section 125 Cr.P.C. was filed and this amount shall be paid till the date on which the respondent attains majority. Thereafter, an application under Section 127 Cr.P.C. was filed by the respondent on 22.12.2012 before the same Court with a prayer to modify the order dated 22.3.2004 in the manner that the amount of maintenance may be ordered to be paid to her till her marriage. Reply to the application was filed by the petitioner with a prayer to dismiss the application by the reason that the Court is not empowered to modify the aforesaid order. It is to be noted that application filed by the respondent was transferred from the Court of Additional Chief Judicial Magistrate to Family Court, Sikar and learned Family Court allowed the application filed by the respondent vide impugned order dated 11.5.2015. 4. It is to be noted that application filed by the respondent was transferred from the Court of Additional Chief Judicial Magistrate to Family Court, Sikar and learned Family Court allowed the application filed by the respondent vide impugned order dated 11.5.2015. 4. In support of the petition, learned counsel for the petitioner raised the following grounds: (1) The amount of maintenance has been awarded from the date of application i.e. 22.12.2012 whereas at the most such amount can be awarded from the date of the order. (2) Learned Court below has enhanced the amount of maintenance from Rs. 2,000/- per month to Rs. 5,000/- although, no prayer to that effect was made by respondent herself in application filed under Section 127 Cr.P.C. (3) Family Court, Sikar had no jurisdiction to modify the order dated 20.3.2004 passed by the Court of Additional Chief Judicial Magistrate, Sikar. (4) It is an admitted position that the respondent is residing with her mother, who is also a lecturer in a College and getting Rs. 1,25,000/- per month as salary and, therefore, at the most the petitioner-father is bound to bear 50% of the amount of maintenance awarded by the Court below. 5. On the other hand, learned counsel for the respondent submitted as below:- (1) The Court is empowered to grant maintenance even from the date on which application for it was filed in the Court. (2) As per provisions of Sections 125 and 127 Cr.P.C., it is the Court to decide what amount of maintenance is to be awarded to an aggrieved party and even if the respondent did not make a prayer for enhancement of amount of maintenance even then the Court below was entitled to enhance it adequately more particularly in view of the fact that it is not in dispute that respondent presently is studying in a College. (3) As per provisions of Section 125 Cr.P.C. there is no liability on the mother to maintain her daughter and in case of failure by her to maintain her daughter, the Court cannot award maintenance under Section 125 Cr.P.C. Otherwise also, brother of the respondent is also residing with his mother and she only is maintaining him and brother of respondent has not claimed maintenance from his father i.e. petitioner. 6. 6. On consideration of submissions made on behalf of the respective parties and the material made available on record, I do not find any illegality, perversity or impropriety in the impugned order requiring interference by this Court. So far as award of maintenance from the date of order only is concerned, in this regard Hon'ble Supreme Court in the case of Shail Kumar Devi & Anr. v. Krishan Bhagwan Pathak reported in (2008) 9 SCC 632 has held that for awarding maintenance from the date of the application, express order is necessary. However, no special reasons are required to be recorded by the Court as no such requirement can be read in Section 125 (1) Cr.P.C. in absence of express provision to that effect. 7. In the present case, learned Court below by an express order has directed the petitioner to pay the amount of maintenance at the rate of Rs. 5,000/- per month from the date on which the application under Section 127 Cr.P.C. was filed. Consequently, the revision petition is dismissed. The stay application also stands dismissed.