IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) MONDAY, THE FIFTEENTH DAY OF FEBRUARY TWO THOUSAND AND TEN PRESENT: THE HON'BLE SRI JUSTICE P.S. NARAYANA CRIMINAL REVISION CASE No.57 of 2009 Between: Chadalwada Venkateswara Rao ... PETITIONER/RESPONDENT AND Chadalwada Rajani @ Himaja and two others ... RESPONDENTS ORDER: Heard Sri Venkateshwar Varasani, the learned counsel representing the petitioner and the learned Public Prosecutor representing respondent No.3. None represents on behalf of respondent Nos.1 and 2. 2. This court ordered notice on 27-01-2009 and further made the following order: “There shall be interim stay on payment of 50% of the arrears of maintenance payable as on 31- 12-2008.” 3. It is stated that respondent Nos.1 and 2 had been served and proof of service also had been filed. The learned counsel representing the petitioner would maintain that in the light of the evidence available on record i.e., PWs.1 and 2, RW-1 and Ex.B-1 the learned Judge, Family Court, Guntur totally erred in granting maintenance. 4. The learned counsel also would maintain that the learned Judge had not properly understood the facts initially while grating maintenance under Section 125 of Code of Criminal Procedure (hereinafter in short referred as ‘the Code’ for the purpose of convenience). The counsel also would maintain that the learned Judge failed to know that in the instant case the petitioner herein after obtaining decree of divorce contracted second marriage and the petitioner has to maintain his old aged parents and his wife as they are totally depending on him. 5. The counsel also pointed out that relating to income though specifically the same had been denied by the petitioner the learned Judge had not taken this aspect into consideration. Further the counsel would maintain that there are no acceptable evidence relating to the income of the petitioner. The learned counsel also pointed out that the first respondent was affected with HIV even prior to marriage and after marriage also she continued to have illicit intimacy and hence, in the circumstances of the case awarding maintenance to the first respondent definitely cannot be sustained. While elaborating his submissions, the counsel would maintain that while awarding maintenance from the date of petition instead of granting maintenance from the date of the order, reasons are to be recorded and in the absence of recording reasons that portion of the order cannot be sustained. 6. The learned counsel placed strong reliance on Chikkamma @ Parvathamma and another v. Yerriswamy and another[1] wherein it reads as follows: “In the facts and circumstances, the Magistrate, in exercise of the discretion vested in him, awarded maintenance only from the date of order, but not from the date of petition. As stated earlier the recording of reasons for awarding maintenance from the date of order is not mandatory and it is only in case where the Magistrate thinks it fit to award maintenance from the date of petition, he has to record reasons as held in Tulasi alias Thulja Bai case (1996 Crl.L.J. 1160)”. 7. On the contrary the learned Public Prosecutor had taken this court through the oral and documentary evidence available on record and also the reasons recorded at para Nos.5 to 12 and would maintain that even if the contract of the petitioner to be taken into consideration since the petitioner made an attempt to get the custody of the child. The stand taken by the petitioner cannot be said to be a justifiable stand. Even otherwise the learned Judge recorded elaborate reasons and ultimately came to a conclusion that it would be just and reasonable to direct the present petitioner – respondent in the M.C. to pay a sum of Rs.900/- per month to the first petitioner from the date of petition and Rs.600/- per month to the second respondent from the date of petition. Hence, the learned Public Prosecutor would maintain that it is not a fit matter to be interfered with. 8. Heard the learned counsel. 9. This Criminal Revision Case is filed by the unsuccessful respondent in M.C.No.67 of 2008 on the file of the Judge, Family Court, Gutur which was originally filed as M.C.No.112 of 2007 on the file of the IV Additional Munsiff Magistrate, Guntur. The petitioner married the first respondent on 10-02-2000 in the presence of elders according to Hindu rights and customs and they led marital life. The respondent No.1 was got examined when she was pregnant in Dr.Sajja Chandramouli Hospital and Dr.S.Hemalatha of Dr.Sajja Chandramouli Hospital, Nidubralu referred the respondent No.1 to Vijaya Laboratory for tests on 04-02-2002. The concerned laboratory tests that the respondent No.1 is having HIV (Aids) Positive. Then the Doctors advised both the petitioner and first respondent not to have any sexual relationship since first respondent has been suffering with Aids disease and subsequently he came to know that the first respondent was suffering with Aids disease even prior to marriage and her parents kept this as secret. 10. It is also the case of the petitioner – respondent – husband that thereafter first respondent – first petitioner in M.C. – wife was blessed with the child and she refused to hand over the child. The petitioner filed HMOP No.8 of 2003 on the file of Senior Civil Judge, Bapatla for dissolution of marriage and the learned Senior Civil Judge, Bapatla was pleased to grant divorce by order dated 07-03-2007. It is also the case of the petitioner that subsequent thereto he contracted second marriage with one Vasavi on 09-03- 2008 at TTD, Tirupathi in Kalyanamasthu and thus the petitioner leading his marital life with the second respondent – wife. 11. The first respondent – wife filed M.C.No.112 of 2007 on the file of the IV Additional Munsif Magistrate, Gutur and the same was transferred to the Family Court, Guntur and renumbered as M.C.No.67 of 2008. The learned Judge, Family Court, Guntur after recording the respective stands formulated the following points for determination: 1. Whether the petitioner has been willfully deserted by the respondent ? 2. Whether the respondent is liable to pay the maintenance as prayed for to the petitioners ? 3. To what relief ? 12. The learned Judge recorded reasons in elaboration commencing from para Nos.5 to 21 and ultimately granted the quantum of monthly maintenance as already referred to supra. Aggrieved by the same the present Criminal Revision had been filed. 13. Apart from the evidence of PW-1 the evidence of PW-2 also is available on record as against this evidence the evidence of RW-1 i.e., the revision petitioner herein is available on record. Ex.B-1 certified copy of the order dated 07-03-2007 in H.M.O.P.No.8 of 2003 was marked. 14. The learned Judge in fact appreciated Ex.B-1 in detail apart from the oral evidence of RW-1 and further appreciated the evidence of PWs.1 and 2 also and ultimately came to a conclusion that in the facts and circumstances of the case, it would be just and proper to grant a monthly maintenance of Rs.900/- per month to the first petitioner in the M.C. from the date of the petition and Rs.600/- per month to the second respondent herein from the date of petition and no doubt certain further directions also had been made. 15. Several of the findings already recorded by the learned Judge are factual findings and on a careful appreciation of evidence the learned Judge recorded findings and even on re- appreciation of the evidence available on record this court is thoroughly satisfied that the learned Judge recorded justifiable findings only. However, in the facts and circumstances of the case, especially in the light of the evidence of RW-1 and Ex.B-1 granting of monthly maintenance at Rs.900/- per month to the first petitioner in the M.C. may not be just and proper and the same is hereby modified to Rs.600/- per month. Thus, it is made clear that this court is inclined to grant to the first respondent – first petitioner in the M.C. Rs.600/- per month and accordingly the said order is modified to the said extent and as far as the awarding of monthly maintenance of Rs.600/- per month to the second petitioner – second respondent child, the same to be confirmed and accordingly the same is hereby confirmed. 16. Further strong reliance was placed on the decision of this court in Chikkamma @ Parvathamma and another v. Yerriswami and another[2] wherein at paragraph Nos.3 and 4 the learned Judge observed as follows: “Section 125 (2) Cr.P.C. reads: “… … … such allowance shall be payable from the date of the order or if so ordered from the date of application for maintenance.” It is clear from the above sub-section that the order for payment of maintenance should be effective from the date of order and the exception is ordering payment from the date of petition. Since awarding maintenance from the date of petition seems to be an exception to the normal rule recording reasons would be necessary only when Magistrate feels it expedient to record payments of maintenance from the date of petition. That should be so can also be seen from the fact that petitioners in an petition and Section 125 Cr.P.C. have a right to seek interim maintenance during the pendency of the proceedings initiated by them. When they failed to file a petition seeking interim maintenance, they cannot blame the court for not awarding maintenance from the date of petition. In the facts and circumstances, the Magistrate, in exercise of the discretion vested in him, awarded maintenance only from the date of order, but not from the date of petition. As stated earlier the recording of reasons for awarding maintenance from the date of order is not mandatory and it is only in case where the Magistrate thinks it fit to award maintenance from the date of petition, he has to record reasons as held in Tulasi alias Thulja Bai case (supra).” 17. In the light of the same, this court is inclined to further modify the order granting monthly maintenance of Rs.600/- to the first petitioner in M.C. – first respondent and Rs.600/- per month to the second petitioner in M.C. – second respondent – minor child from the date of the order instead of from the date of petition. 18. Accordingly, to the said extent the order is hereby modified and the Criminal Revision Case is partly allowed to the extent indicated above. ___________________ P.S. NARAYANA, J February 15, 2010. PN THE HON'BLE SRI JUSTICE P.S. NARAYANA CRIMINAL REVISION CASE No.57 of 2009 February 15, 2010 [1] 2004 (2) ALD (Crl.) 193 (AP) [2] 2004 (2) ALD (Crl.) 193 (AP)