1 Criminal Writ Petition No.1008 of 2009 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL WRIT PETITION NO.1008 OF 2009 Mukhtyar Ahmed Barkat Ahmed, Age-36 years, Occu-Service, R/o.Khadka Road, Bhusawal, Tq.Bhusawal, Dist. Jalgaon PETITIONER VERSUS 1. State of Maharashtra 2. Shahinbano W/o.Mukhtyar Ahmed, Age-31 years, Occu-Household, 3. Arsinbee, Age-8 years, Occu-Education, As Minor, through guardian mother, respondent no.2. Both are R/o.Kasamwadi, Varsha Colony, Jalgaon, Dist. Jalgaon RESPONDENTS Mr.S.S.Patil, learned counsel for the petitioner. Mr.S.D.Kaldate, learned A.P.P. for respondent State Mr.V.B.Patil, learned counsel for respondents no.2 and 3. (CORAM : A.V.POTDAR, J.) DATE : 22/09/2011 ORAL JUDGMENT : 1. Rule. Rule made returnable forthwith. By consent of the 2 Criminal Writ Petition No.1008 of 2009 parties, heard finally. 2. By the present writ petition under Article 227 of The Constitution of India, the petitioner has challenged the judgment and order dated 13/07/2009, passed by the learned Sessions Judge, Jalgaon in Cri.Rev.Appl.No.153/2008, by which learned Sessions Judge has partly allowed the revision application filed by respondents no.2 and 3 against the order passed by learned J.M.F.C. Jalgaon in Cri.M.A.No.116/2003 dated 30/01/2008. 3. Such of the facts as are necessary for the decision in this writ petition can be summarized as : Respondents no.2 and 3 have filed Misc.Cri.Application u/s. 125 of the Cr.P.C. before the learned J.M.F.C. Jalgaon which was numbered as Cri.Misc.Appl.No.116/2003. Even though the application was filed in the year 2003, evidence of respondent no.2 was recorded on 07/05/2005. Thereafter the parties have completed their evidence. After hearing the parties, learned J.M.F.C.has pronounced the judgment on 30/01/2008 and partly allowed the application, directing the petitioner to pay maintenance in the sum of Rs.1,000/- per month in favour of respondent no.2 and to pay maintenance in the sum of Rs.500/- in favour of respondent no.3, but from the date of closure of evidence of the applicant i.e. from 05/02/2007. Respondents no.2 and 3 have questioned the correctness of the judgment passed by learned J.M.F.C. Jalgaon in 3 Criminal Writ Petition No.1008 of 2009 Criminal Revision Application No.153/2008 before the learned Sessions Judge Jalgaon on 2 grounds, first to enhance the quantum of maintenance and for the modification to grant the maintenance from the date of application. It appears that the learned Sessions Judge, vide his judgment and order dated 13/07/2009, pleased to partly allow the said criminal revision application. While partly allowing the criminal revision application, prayer of respondents no.2 and 3 to enhance the amount of monthly maintenance was rejected, but the order that respondents no.2 and 3 are entitled for maintenance from the date of closure of his evidence i.e. 05/02/2007 was modified and the application was allowed from the date of application. 4. Today, when the writ petition came up for final hearing, I have heard learned counsel followed by the submissions of learned counsel for respondents no.2 and 3, who has supported the impugned judgment and order passed by the learned Sessions Judge, Jalgaon in Criminal Revision Appl.No.153/2008. 5. During the course of submissions across the bar, it is urged that the order passed by the learned Judicial Magistrate First Class need not be interfered in its revisional jurisdiction by the learned Sessions Judge as even though the application was filed in the year 2003, but was prolonged at the instance of respondents no.2 and 3. Considering these circumstances, learned Magistrate was correct in 4 Criminal Writ Petition No.1008 of 2009 allowing the application from the date of closure of evidence of the petitioner i.e. from the date 05/02/2007, hence prayed to allow the petition. 6. With the assistance of learned counsel for petitioner and respondent no.1, perused both the judgments and orders passed by both the Courts below. At this juncture, before adverting to further submissions of learned counsel for the petitioner and respondents, it is necessary to quote para no.14 and 15 of the impugned judgment, passed by the learned Sessions Judge in Criminal Revision Application No.153/2008, which reads as : To understand what ought to be the correct approach in such cases, a reference may be made to a decision of the Supreme Court of India in Shail Kumari Devi and others Vs. Krishan Bhagwan Pathak alias Kishum B.Pathak (2008(4) Bombay Criminal Cases 728). The Supreme Court of India in the aforesaid case observed that the maintenance under section 125 of the Code can be awarded from the date of application and that for doing so, no special reasons are required to be recorded by the Court. The Supreme Court of India observed as follows : “Maintenance is a right which accrues to a wife against her husband the minute the former gets married to the latter. It is not only a moral obligation but is also a legal duty cast upon the husband to maintain his 5 Criminal Writ Petition No.1008 of 2009 wife.” (Para 46 of the reported judgment) The impugned order, to the extent it made the amount of maintenance payable from the date of closure of evidence, is not in accordance with Law. It is inconsistent with the well settled and consistent practice followed by superior Courts, which has almost crystallized into a rule of Law. The Magistrate herself concluded that both the parties were responsible for the delay in disposal of the application and, therefore, there was no special reason for making the amount of maintenance payable not from the date of application. 7. From the observations made in earlier paragraph, it is clear that grant of application for maintenance from the date of application, is a rule and practice, but in its discretion, if the learned Trial Magistrate intends to allow the application not from the date of the application, but from any other date, then he has to mention special reasons to pass such order. Perusal of the judgment of the Trial Court, I do not find any special reason mentioned by the Trial Court to allow the application for maintenance from the date of closure of evidence of the petitioner i.e. 05/02/2007. Thus it is clear that the order passed by the learned Magistrate was without any sufficient and cogent reasons and certainly require interference at the hands of the Revisional Court. After going through the observations of the Court of Revision in para no.14 and 15, which are quoted above, I do not find any perversity, then this Court does not 6 Criminal Writ Petition No.1008 of 2009 think it proper to interfere in the order impugned. 8. In the result, writ petition stands dismissed. Rule stands discharged. (A.V.POTDAR, J.) khs/SEPT.2011/cri.w.p.1008-09