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2019 DIGILAW 768 (JHR)

Sanjay Kumar Mukherjee @ Sanjay Kumar Mukherjee S/o Late Kali Pado Mukherjee v. State of Jharkhand

2019-03-29

DEEPAK ROSHAN

body2019
ORDER : Both the Criminal Revision applications arise out of same impugned order and hence are decided together. 2. The Cr. Revision No.807 of 2014 has been filed by the petitioner-Husband against the order dated 29.01.2014 passed by the Principle Judge, Family Court, Dhanbad in M.P. Case No.361 of 2010 whereby the learned trial court has awarded maintenance of Rs.6,000/- to the opposite party no.2 and further Rs.6,000/- to the daughter of the petitioner and opposite party no.2 namely, Sneha Mukherjee, whereas Cr. Revision No.245 of 2014 has been filed by the petitioner-wife against the same order on the ground that though the maintenance has been awarded to the petitioner-wife but the awarded amount is from the date of order and not from the date of application and the learned court below has not given any reason. 3. The facts of the case is that the marriage between Sanjay Kumar Mukherjee (petitioner in Cr. Revision No.807 of 2014) and Anita Mukherjee (petitioner of Cr. Revision No.245 of 2014) was solemnized on 10.05.2004 according to Hindu Rites and Customs. After the marriage, the wife went at her matrimonial house and out of their wedlock the couple were blessed with one daughter namely, Sneha Mukherjee. It appears that the daughter is living with her mother. 4. It is contended that the husband started to commit atrocities on his wife for want of dowry and lastly the wife alongwith her daughter were driven out from her matrimonial house by the husband on 09.12.2008 and thereafter the wife is living at her parent's house alongwith her minor daughter. 5. Mr. Mahesh Tewari, the learned counsel for the petitioner-Husband argued the case at length and submitted that the learned trial court has not at all appreciated the entire facts of the case from the correct perspective. He has further submitted that from plain reading of Section 125 of Cr.P.C, it is crystal clear that a wife shall not be entitled to receive maintenance if she voluntarily does not want to reside with her husband. He further argued that the amount awarded by the trial court is very excessive. 6. Mr. Deepak Kumar, the learned counsel on behalf of wife (petitioner in Cr. He further argued that the amount awarded by the trial court is very excessive. 6. Mr. Deepak Kumar, the learned counsel on behalf of wife (petitioner in Cr. Revision No.245 of 2014) submits that the only grievance is that the awarded amount has been directed to be paid from the date of order and not from the date of application and no reason has been assigned by the learned court below. 7. I have carefully gone through the material available on record. I find that there is no dispute regarding the relationship between the parties. Both are legally married and out of wedlock couple were blessed with a daughter. It is also an admitted fact that the minor daughter is living with her mother. From the record it appears that the husband is an employee of B.C.C.L. and is working as Electrician. From the record it also appears that the trial court has perused the salary statement in respect of the husband whereby it transpired that the average salary was Rs.33,682/- in January, 2014. 8. It also appears from the records of the case that the wife had lodged a criminal case against the petitioner-husband and his family members for the offence punishable under Section 498 (A) of I.P.C. Thus the argument of the learned counsel for the husband that the wife shall not be entitled to receive maintenance if she voluntarily does not want to reside with her husband, is of no substance because filing of criminal case clearly transpires the atrocities against the wife. So far as the argument of the learned counsel for the husband that the amount of maintenance is excessive is also not correct. 9. The concept of sustenance does not necessarily mean to lead the life of an animal feel like an unperson to be thrown away from grace and roam for her basic maintenance somewhere else. The wife is entitled in law to lead a life in the similar manner as she would have lived in the house of her husband. That is where the status and strata come into play, and that is where the obligation of husband, in case of a wife, become a prominent one. Reference in this regard may be made to the judgment rendered by Hon'ble Apex Court in the case of Bhuwan Mohan Singh Vs. That is where the status and strata come into play, and that is where the obligation of husband, in case of a wife, become a prominent one. Reference in this regard may be made to the judgment rendered by Hon'ble Apex Court in the case of Bhuwan Mohan Singh Vs. Meena And Others, reported in (2015) 6 SCC 353 wherein at paragraph-2 which is as under: “2. Be it ingeminated that Section 125 of the Code of Criminal Procedure (for short “the Code”) was conceived to ameliorate the agony, anguish, financial suffering of a woman who left her matrimonial home for the reasons provided in the provision so that some suitable arrangements can be made by the court and she can sustain herself and also her children if they are with her. The concept of sustenance does not necessarily mean to lead the life of an animal, feel like an unperson to be thrown away from grace and roam for her basic maintenance somewhere else. She is entitled in law to lead a life in the similar manner as she would have lived in the house of her husband. That is where the status and strata come into play, and that is where the obligations of the husband, in case of a wife, become a prominent one. In a proceeding of this nature, the husband cannot take subterfuges to deprive her of the benefit of living with dignity. Regard being had to the solemn pledge at the time of marriage and also in consonance with the statutory law that governs the field, it is the obligation of the husband to see that the wife does not become a destitute, a beggar. A situation is not to be maladroitly created whereunder she is compelled to resign to her fate and think of life “dust unto dust”. It is totally impermissible. In fact, it is the sacrosanct duty to render the financial support even if the husband is required to earn money with physical labour, if he is able-bodied. There is no escape route unless there is an order from the court that the wife is not entitled to get maintenance from the husband on any legally permissible grounds.” 10. Now coming to the argument of the learned counsel for the wife (petitioner in Cr. There is no escape route unless there is an order from the court that the wife is not entitled to get maintenance from the husband on any legally permissible grounds.” 10. Now coming to the argument of the learned counsel for the wife (petitioner in Cr. Revision No.245 of 2014), it transpires that the learned trial court has not given reasons for awarding the maintenance from the date of order. Under Section 125 (2) Cr. P.C read with 354 (6) of Cr.P.C. the learned trial court is duty bound to give reasons with respect to date of maintenance. It is a settled law that the learned court can award maintenance either from the date of order or from the date of application for maintenance but in every case the reason is to be recorded. In the instant case, the learned trial court has simply said that the opposite party-husband will pay Rs.12,000/- maintenance amount per month to the petitioner-wife from the date of order. No reason has been assigned. Reference in this regard may be made to the judgment rendered by Hon'ble Apex Court in the case of Jaiminiben Hirenbhai Vyas and Another Vs. Hirenbhai Rameshchandra Vyas and Another, reported in (2015) 2 SCC 385 wherein at paragraph nos.4, 5 and 6 which are as under: “4. The relevant part of Section 125 reads as follows: “125. Reference in this regard may be made to the judgment rendered by Hon'ble Apex Court in the case of Jaiminiben Hirenbhai Vyas and Another Vs. Hirenbhai Rameshchandra Vyas and Another, reported in (2015) 2 SCC 385 wherein at paragraph nos.4, 5 and 6 which are as under: “4. The relevant part of Section 125 reads as follows: “125. Order for maintenance of wives, children and parents.—(1) If any person having sufficient means neglects or refuses to maintain— (a) his wife, unable to maintain herself, or (b) his legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or (c) his legitimate or illegitimate child (not being a married daughter) who has attained majority, where such child is, by reason of any physical or mental abnormality or injury unable to maintain itself, or (d) his father or mother, unable to maintain himself or herself, a Magistrate of the First Class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, father or mother, at such monthly rate, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to time direct: Provided that the Magistrate may order the father of a minor female child referred to in clause (b) to make such allowance, until she attains her majority, if the Magistrate is satisfied that the husband of such minor female child, if married, is not possessed of sufficient means: Provided further that the Magistrate may, during the pendency of the proceeding regarding monthly allowance for the maintenance under this sub-section, order such person to make a monthly allowance for the interim maintenance of his wife or such child, father or mother, and the expenses of such proceeding which the Magistrate considers reasonable, and to pay the same to such person as the Magistrate may from time to time direct: Provided also that an application for the monthly allowance for the interim maintenance and expenses for proceeding under the second proviso shall, as far as possible, be disposed of within sixty days from the date of the service of notice of the application to such person. Explanation.—For the purposes of this Chapter— (a) ‘minor’ means a person who, under the provisions of the Indian Majority Act, 1875 (9 of 1875), is deemed not to have attained his majority; (b) ‘wife’ includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried. (2) Any such allowance for the maintenance or interim maintenance and expenses of 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 proceeding, as the case may be.” The provision expressly enables the Court to grant maintenance from the date of the order or from the date of the application. However, Section 125 CrPC must be construed with sub-section (6) of Section 354 CrPC which reads thus: “354. Language and contents of judgment.— * * * (6) Every order under Section 117 or sub-section (2) of Section 138 and every final order made under Section 125, Section 145 or Section 147 shall contain the point or points for determination, the decision thereon and the reasons for the decision.” (emphasis supplied) Therefore, every final order under Section 125 CrPC [and other sections referred to in sub-section (c) of Section 354] must contain points for determination, the decision thereon and the reasons for such decision. In other words, Section 125 and Section 354(6) must be read together. 5. Section 125 CrPC, therefore, impliedly requires the court to consider making the order for maintenance effective from either of the two dates, having regard to the relevant facts. For good reason, evident from its order, the court may choose either date. It is neither appropriate nor desirable that a court simply states that maintenance should be paid from either the date of the order or the date of the application in matters of maintenance. Thus, as per Section 354(6) CrPC, the court should record reasons in support of the order passed by it, in both eventualities. The purpose of the provision is to prevent vagrancy and destitution in society and the court must apply its mind to the options having regard to the facts of the particular case. 6. In Shail Kumari Devi v. Krishan Bhagwan Pathak this Court dealt with the question as to from which date a Magistrate may order payment of maintenance to wife, children or parents. 6. In Shail Kumari Devi v. Krishan Bhagwan Pathak this Court dealt with the question as to from which date a Magistrate may order payment of maintenance to wife, children or parents. In Shail Kumari Devi this Court considered a catena of decisions by the various High Courts, before arriving at the conclusion that it was incorrect to hold 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. It is, therefore, open to the Magistrate to award maintenance from the date of application. The Court held, and we agree, that if the Magistrate intends to pass such an order, he is required to record reasons in support of such order. Thus, 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.” 11. In view of forgoing discussions, I find no merit in the instant case which requires interference from this Court, however, since no reason has been assigned by the learned trial court with respect to the payment of maintenance as such let this matter be remanded to the trial court to decide the matter afresh only with respect to question as to whether the amount of maintenance should be paid by the husband from the date of order or from the date making application under Section 125 of Cr.P.C. 12. The learned trial court is directed to pass a reasoned order after affording proper opportunity to both parties and dispose of the case within three months from the date of receipt of copy of this order. 13. As a result, Cr. Revision No.807 of 2014 is dismissed and Cr. Revision No.245 of 2014 is allowed.