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Sunita Bhutani Vs. Sat Pal - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtDelhi High Court
Decided On
Case NumberCriminal Miscellaneous (Main) Appeal No. 1276 of 1984
Judge
Reported in28(1985)DLT472
ActsCode of Criminal Procedure (CrPC) , 1973 - Sections 125
AppellantSunita Bhutani
RespondentSat Pal
Advocates: Krishan Kumar, Adv
Cases ReferredMakudum v. Nargis Bano and
Excerpt:
.....the computation of income of the husband of section 125 of the criminal procedure code, 1973 - the carry home salary of the husband was assessed at rs. 628 per month -the maintenance fixed by the magistrate at rs 300 was reduced to rs 250 by the session court - it was held that the maintenance was proper in view of the salary of the husband.b) the case examined the permissibility of the maintenance from the date of application under section 125 of the criminal procedure code, 1973 - the order of the magistrate granting the maintenance from the date of the application was set aside by the session court and it allowed the maintenance from the date of order - it was held that since categorical finding by the magistrate indicated that wife was unable to maintain herself and then too the..........of the application. (2) the learned additional sessions judge has upheld the conclusion of the learned magistrate who decided the petition under section 125 of the code of criminal procedure. he affirmed the finding that the petitioner-wife had been thrown out of her matrimonial house and that there was a definite threat to her. the further finding that it was on account of the unruly behavior of the husband-respondent herein, that the petitioner was forced to leave the house of her in laws, was also affirmed. the concurrent finding of the two courts below is that the petitioner is entitled to be maintained by her husband. (3) the learned additional sessions judge, however, reduced the maintenance from rs. 300.00 to rs. 250.00 per month as it had been proved that the husband's.....
Judgment:

Charanjit Talwar, J.

(1) By this petition Smt. Sunita Bhutani has challenged the legality and correctness of the order passed on 5th May, 1984, by an Additional Sessions Judge, Delhi, whereby the monthly maintenance of Rs. 300.00 awarded to her from the date of the application, i.e , 29th January, 1982, was modified to the following extent. The amount of maintenance was reduced to Rs. 250.00 per month and it was directed that it be paid from the date of the order of the Magistrate, I.e., 6th January, 1984, and not from the date of the application.

(2) The learned Additional Sessions Judge has upheld the conclusion of the learned Magistrate who decided the petition under section 125 of the Code of Criminal Procedure. He affirmed the finding that the petitioner-wife had been thrown out of her matrimonial house and that there was a definite threat to her. The further finding that it was on account of the unruly behavior of the husband-respondent herein, that the petitioner was forced to leave the house of her in laws, was also affirmed. The concurrent finding of the two courts below is that the petitioner is entitled to be maintained by her husband.

(3) The learned Additional Sessions Judge, however, reduced the maintenance from Rs. 300.00 to Rs. 250.00 per month as it had been proved that the husband's carry-home salary was only Rs. 628.00 per month after due deductions. In my view, the reason for reducing the quantum of maintenance is valid and cannot be assailed.

(4) The other ground challenging the judgment of the Additional Sessions Judge, however, has some force. It was within the discretion of the learned Magistrate to have granted maintenance from the date of the application, by virtue of sub-section (2) section 125 of the Code. That subsection reads:

'(2)Such allowance shall be payable from the date of the order, or, if so, ordered, from the date of the application for maintenance.'

(5) With the assistance of Mr. Krishan Kumar learned counsel for the petitioner, I have gone through the impugned judgment. The learned Additional Sessions Judge has given no reasons whatsoever for disagreeing with the learned Magistrate regarding payment of maintenance from the date of application, He has merely observed,' The impugned order is accordingly modified reducing the maintenance to Rs. 250.00 P.M. from the date of the order passed by the Ld. Magistrate, i.e., w.e.f. 6/1/84'. This modification without assigning any reasons is unwarranted. The case of the respondent which has been noticed in detail by that Court shows that he was in some financial difficulty. It was for that reason that the amount was reduced. In my view, the learned revisional Court ought to have given compelling reasons for modifying the order of the learned Magistrate. Learned counsel for the petitioner rightly relies upon a judgment of this Court in Makudum v. Nargis Bano and another, 1982 Mat. Law Reporter 366 for the submission that under the circumstances of this case the husband having turned out the petitioner-wife it was but proper for the Magistrate to have directed payment of the maintenance from the date of the application. In the said case Avadh Behari J. held that where it was established that the wife and the child had been neglected, they were entitled to the maintenance from the date of the application. In the present case there was a categorical finding by the Magistrate that the respondent had neglected to maintain his wife and further that she was unable to maintain herself. It was for that reason, it is apparent, that the learned Magistrate directed the payment of maintenance from the date of the application.

(6) As noticed above, the learned Additional Sessions Judge without assigning any reasons has upset that finding.

(7) The result of the above discussion is that this petition is liable to be accepted to the extent that while the maintenance of Rs. 250.00 granted by the Additional Sessions Judge is upheld but his direction that that amount should be paid from the date of order is set aside. The direction of the Magistrate that the maintenance be paid from the date of application is restored. The amount of maintenance from the date of the order of the Magistrate till to-day, if not paid already, be paid in lump-sum. However, the balance amount of maintenance from the date of the application to the date of the order of the Magistrate, which roughly comes to Rs. 6000.00 , be paid in six equal monthly Installments ; the first Installment will be paid within a month from the date of this order. In case of default in payment of any two Installments, the petitioner will be entitled to recover the entire balance in accordance with law.


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