IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.2251 of 2007 REKHA KUMARI Versus BINOD SHARMA ----------- 5 12.11.2008 Heard counsel for the petitioner and counsel for the opposite party. The petitioner, wife is aggrieved by order dated 26.9.2007 passed in Maintenance Case No. 4 of 2003 whereby and whereunder the Principal Judge, Family Court, Sasaram in a proceeding under Section 125 of the Code of Criminal Procedure, has allowed monthly maintenance to the wife-petitioner and the two dependent children at the rate of Rs. 2000/-, 1000/-, 1000/- respectively. Counsel for the petitioner has urged that when there were sufficient evidence on record to show that the husband-opposite party was owner of a shop and that he was maintaining a high standard of life, the conclusion arrived by the court below that he had a monthly income of Rs. 6000/- only was wholly erroneous. He had also submitted that once in paragraph No. 19 of the impugned order, the Court below had recorded a finding that the husband-opposite party did not approach the Court with a clean hand and had tried to conceal his income in order to avoid an amount of higher maintenance, it was all the more necessary for the Court below to direct the petitioner to reveal his true income. Counsel for the petitioner has further explained that the quantum of Rs. 4000/- for the wife and two children is wholly inadequate for sustenance for meeting their requirement and the standard of life that they were leading prior to the separation from - 2 - their husband/father. It was next contended on behalf of the petitioner that the approach of the Court below in passing the impugned order by confining payment of maintenance from the date of the order was wholly unsustainable inasmuch as no reason whatsoever was given as to why the payment of maintenance even if allowed to the extent in the impugned order, was not to date back from the date of filing of the application. Counsel for the opposite party has submitted that the issue of quantum of maintenance cannot be gone into in this Civil Revision application because the petitioner had filed a Cr. Revision application against the same order being Cr. Revision No. 1432 of 2007 wherein the entire impugned order so far it relates to the quantum has been questioned by the husband-opposite party. He however, fairly concedes that as on the date when the hearing of this Civil Revision application was taken up i.e. on 11.11.2008 or even today the Cr. Revision application is no longer alive and infact had stood dismissed for default on 7.11.2008. He would however, submit that an application for restoration is being filed today. As a matter of fact, even if the Cr. Revision application was pending that could have been clubbed together for hearing with this Civil Revision application but when such Cr. Revision is no longer pending and in fact stands dismissed for whatever reason, this Court can not be precluded from passing an order even on the issue of - 3 - quantum of maintenance. This Court in fact would find that the Court below has proceeded in a very slip-slod manner in fixing the amount of maintenance. Having discussed the means of life style of the husband-opposite party and having noted that the opposite party has been maintaining a motorcycle, he has a fixed telephone connection, he is a shop owner and also a sales tax payee in respect of a shop allegedly owned by him under the name and style of “Sangit” it was absolutely necessary for the Court below to direct the husband- opposite party to file an affidavit of his actual monthly income supported by documents. The approach of the Court below that even if the husband-opposite party had not approached the Court with clean hands and had suppressed his true income and yet it had fixed monthly amount of Rs. 6000/- per month is only based only speculation and not supported from any record. The Court below should have therefore, made a more conscious and concerted effort to determine the true monthly income of the husband and in fact, the husband could not have disowned to discharge such onus in view of the provisions made under Section 106 of the Evidence Act. The income of the husband-opposite party is within his personal knowledge and therefore, it is who has to come with true facts. That having been not done, the quantum of maintenance seems to have determined only on an assumed income of the husband which cannot be held to be a correct approach adopted by the Court below. The next question which has been canvassed by the learned - 4 - counsel for the petitioner as with regard to giving the date from which such amount would become payable also needs a reconsideration. It is the mandate of law that the Court has to consider the requirement of passing an order for payment of maintenance by fixing a particular date. Section 125(2) reads as follows:- "(2) Any such allowance for the maintenance or interim maintenance and expenses for 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.)" (underlining for emphasis) The word "such allowance" for maintenance or interim maintenance used in Sub-section (2) of Section 125 has to be therefore, understood in the context it has been made referable to Section 125 (1) of the Code of Criminal Procedure. From bare reading of Section 125(1) Cr.P.C. it would be clear that if any person having sufficient means neglects or refuses to maintain his wife or children or parents, he is liable to pay the monthly allowance for maintenance of his wife. The question, therefore, would arise when does a man actually neglect or refuse to main his wife. Normally if no other date is decipherable, at least the date on which an application is filed for maintenance, can safely be treated the first date of such continued neglect. In that view of the matter, the mandate of law u/s 125(2) Cr.P.C. appears to be that such order can date back even up to - 5 - the filing of an application. In the present case, while the Court below has not given any reason in directing the husband-opposite party for making payment from the date of order and not from the date of application. Mr. Dwivedi, learned Senior Counsel for the petitioner however contends that at least when the wife was receiving interim maintenance in view of the order dated 28.11.2005, it cannot be said that the Court had not consciously applied itself for fixing a factum of date of payment of maintenance from the date of order. He would also rely on a judgment of the Allahabad High Court reported in the case of Samaydin Vs. State of U.P., 2001(2) Cr. Law Journel, 2064 to contend that requirement of Section 125 is to pass an order for payment of maintenance from the date of order and it would only be in exceptional circumstances that such payment can date back from the date of filing of application . In the opinion of this Court, while the Courts are required to pass an order of maintenance, by fixing a date either from the date of application or from the date of order, it has to briefly record its reasons for allowing the prayer of grant of maintenance as originally prayed in the application. It goes without saying that the date on which the application is filed for grant of maintenance is of course the first date from which maintenance can be allowed. In the present case when the wife had filed her application on 16.1.2003 claiming that she was being neglected and her two minor children had no means of sustenance, the Court in order to find out as to how she has been able - 6 - to survive between 16.1.2003 to 26.9.2007 had to make sort of enquiry and was required to record reasons even briefly that it was satisfied that the wife had otherwise some income on the basis of which she could have survived in the integerrum period and as such the date of order was the safer basis for payment of maintenance. That having been done, this Court cannot approve the approach of the Court below in fixing the date of order to be the beginning point for payment of maintenance in as much as this would amount picking a date out of the hat. Yet another question would be that when the amount of interim maintenance was allowed only at the rate of Rs. 1000/- per month with effect from 28.11.2005, and the Court not only found that the family of the three i.e. wife and two minor children were to be at least eligible to be given Rs. 4000/- per month in terms of the impugned order, it was definitely all the more necessary for it to record that the amount of monthly ad-interim maintenance from 28.11.2005 till the date of impugned order i.e. 26.9.2007 was grossly inadequate and therefore, having regard to the amount of income of Rs. 6000/- of the husband-opposite party as determined by the Court below in the impugned order itself it had to at least date back such payment if not from the date of application than at least from the date of order of ad-interim maintenance as on that day the court below had become prima-facie satisfied that the wife and two children were still going without any means of maintenance while awaiting the result of the application filed by them under Section 125 claiming maintenance - 7 - of Rs. 5000/- per month. In that view of the matter, this Court would set aside the impugned order and direct the Court below to re-consider the whole issue in the light of the findings given in the impugned order. It is made clear that till the final disposal of the matter by the Court below the petitioner as he has not questioned the amount of monthly maintenance of Rs. 4000/- per month (his criminal revision application having been already dismissed by this court) will keep on paying a sum of Rs. 4000/- per month as directed in the impugned order. The Court below will however ensure that the whole proceeding on remand is concluded within a period of three months from the date of receipt/production of a copy of this order. With the aforementioned observations and directions, this Civil Revision application is allowed only to extent indicated above. Bibhash (Mihir Kumar Jha, J.)