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2020 DIGILAW 310 (JHR)

Muneshwar Pradhan v. Rita Pradhan

2020-02-14

SHREE CHANDRASHEKHAR

body2020
JUDGMENT 1. The petitioner has challenged the order dated 29.09.2016 passed in Original Maintenance Case No.05 of 2016 by which he has been directed to pay Rs.8,000/- per month for maintenance of his wife and the minor daughter. 2. In the proceeding of the maintenance case, the applicant who is the petitioner''s wife has examined two witnesses; she has examined herself as P.W.1. The petitioner has also examined three witnesses to resist the claim of his wife for maintenance under section 125 of the Code of Criminal Procedure. 3. The marriage between the parties was solemnised on 03.07.2014 and from the wedlock a girl child has been born. The petitioner''s wife has alleged that at the time of birth of her daughter no one from the family of her husband supported her and they have not borne the hospital expenses. She has further alleged that her husband has failed to maintain her and their minor daughter. She has filed a complaint case against her husband alleging harassment and torture by him. There was a dispute between the parties is evident from the fact that on 22.05.2015 a compromise was arrived at between the parties at Mediation Centre, Chaibasa. The petitioner has pleaded that when he tried to take his wife and child home his wife has refused. In her petition filed under section 125 of the Code of Criminal Procedure, the petitioner''s wife has claimed Rs.6,000/- per month for herself and Rs.4,000/- per month for the minor daughter as maintenance allowance besides Rs.20,000/- as litigation cost. In her cross-examination she has admitted that she does not know about income of her husband. Her father who has been examined as P.W.2 has stated during cross-examination that he has not seen any document regarding employment of his son-in-law and landed properties owned by him and he has no idea about income of his son-in-law. The petitioner''s wife has claimed that he is a petty contractor whereas the witnesses examined by the petitioner have stated that the petitioner is earning Rs.3,000/- to Rs.4,000/- per month and he is working as a Munsi under a contractor. 4. The claim of maintenance under section 125 of the Code of Criminal Procedure should be examined on the basis of standing, earning and living standards of the parties. In '' Manish Jain Vs. 4. The claim of maintenance under section 125 of the Code of Criminal Procedure should be examined on the basis of standing, earning and living standards of the parties. In '' Manish Jain Vs. Akanksha Jain'' reported in (2017) 15 SCC 801 , the Hon''ble Supreme Court has held thus; ''16. An order for maintenance pendente lite or for costs of the proceedings is conditional on the circumstance that the wife or husband who makes a claim for the same has no independent income sufficient for her or his support or to meet the necessary expenses of the proceeding. It is no answer to a claim of maintenance that the wife is educated and could support herself. Likewise, the financial position of the wifes parents is also immaterial. The court must take into consideration the status of the parties and the capacity of the spouse to pay maintenance and whether the applicant has any independent income sufficient for her or his support. Maintenance is always dependent upon factual situation; the court should, therefore, mould the claim for maintenance determining the quantum based on various factors brought before the court.'' 5. The object behind section 125 of the Code of Criminal Procedure is to see that a wife or minor child does not suffer in destitution, but then, there must be some basis for fixing quantum of maintenance. 6. In the order dated 29.09.2016, there is no discussion on assessment of income of the petitioner. There is no discussion also on how Rs.8,000/- per month has been fixed by the learned Principal Judge, Family Court for maintenance of the petitioner''s wife and daughter. It is also not recorded in the order for maintenance whether the amount of maintenance of Rs.8,000/- per month is payable from the date of the order or the date of application. Reason is the heart and soul of judicial order. In '' Jaiminiben Hirenbhai Vyas Vs. Hirenbhai Rameshchandra Vyas'' reported in (2015) 2 SCC 385 , the Hon''ble Supreme Court has observed as under: ''4 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. 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 subsection (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.'' 7. The order dated 29.09.2016 passed by the learned Principal Judge, Family Court does not disclose the reasons which should have been the foundation for an order under section 125 of the Code of Criminal Procedure and, therefore, the impugned order dated 29.09.2016 passed by the learned Principal Judge, Family Court, West Singhbhum, Chaibasa is set-aside. The matter is remitted back to the court below for a fresh consideration, but on the basis of the materials already on record. 8. The parties shall appear before the court below on 19.03.2020 on which date the court shall fix a date for arguments. 9. Cr. Rev. No.1470 of 2016 stands allowed, in the above terms.