1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN JAIPUR BENCH, JAIPUR Pradeep Kumar Saini Vs. Seema & Ors. (S.B. Criminal Revision Petition No.1254/2009) S.B. Criminal Revision Petition under Section 397 read with Section 401 Cr.P.C. Date of Order :- 10th November, 2009 HON'BLE MR.JUSTICE R.S.CHAUHAN Mr.Sudarshan Laddha, for the petitioner. Mr.Javed Chaudhary, public prosecutor. Mr.Pradeep Mathur, for the respondents. REPORTABLE The petitioner has challenged the order dated 27.06.2009 passed by the learned Judge, Family Court, Kota whereby the learned Judge has granted a maintenance of Rs.1,000/- per month to the respondent No.1, Smt. Seema, and Rs.500/- per month to the respondent No.2, Rani @ Bittu. Mr. Sudarshan Laddha, the learned counsel for the petitioner, has vehemently contended that Smt. Seema is staying away from the matrimonial home without any rhyme or reason. Therefore, the benefit of Section 125(4) Cr.P.C. should have been given to the petitioner. Secondly, Smt. Seema is earning sufficient amount to be able to look after herself and the child. Therefore, they are disentitled from claiming any maintenance from him. Thirdly, without assigning any reason, the learned Judge has directed that the maintenance should be paid from the date of filing of the application namely, from 26.06.2004, instead of from the date of the order. 2 On the other hand, Mr. Pradeep Mathur, the learned counsel for the respondents, has contended that in her statement, Smt. Seema has clearly stated that she was not only subjected to dowry demands, but was also subjected to physical and mental cruelty by the petitioner. Therefore, she had no other option, but to leave him and to reside with her parents. Thus, she has sufficient cause for leaving the matrimonial home. Hence, the benefit of Section 125(4) Cr.P.C. cannot be given to the petitioner. Secondly, the petitioner has not produced an iota of evidence to buttress his contention that Smt. Seema is earning sufficient amount to be able to look after herself and the child. Thirdly, the learned Judge has given cogent reasons for directing that the maintenance amount be paid from the date of filing of the application. Lastly, in fact, the learned Judge need not give any special reason for making the maintenance payable from the date of filing of the application. In order to support this contention, the learned counsel has relied upon the case of Shail Kumari Devi & Anr. Vs. Krishan Bhagwan Pathak @ Kishun B. Pathak [AIR 2008 SC 3006]. Therefore, the learned counsel has supported the impugned order. Heard the learned counsel for the parties, perused the impugned order, and considered the testimony of the petitioner and of the respondent No.1. According to the testimony of the petitioner, the reason why the marriage fell apart is that Smt. Seema, while attending her college, used to visit her parental house every day. The petitioner had tried to convince her that she should desist from visiting her parental house every day. But, she would lose her temper with him. He further 3 claims that he tried his level best to bring her back to the matrimonial home. But instead, she lodged a FIR for offences under Sections 406 & 498-A IPC against him. On the other hand, Smt. Seema has clearly stated in her testimony that there was constant demand for dowry of Rs.50,00/- and for a Hero Honda motorcycle. When such demands could not be met by her parents, she was subjected to physical and mental cruelty. Therefore, she had no other option, but to leave the matrimonial home and to take the child with her. Moreover, the petitioner did not make any efforts to take her back to the matrimonial home. The reasons given by the petitioner for the falling apart of the marriage is certainly unacceptable. In today's day and age, when gender equality and gender justice is a popular concept, it is unreasonable to expect that a wife should not visit her parental house. The attitude of the petitioner is chauvinistic to say the least. A bare perusal of the testimony of Smt. Seema clearly shows that her testimony has not been shattered in her cross- examination. Therefore, there is no reason for disbelieving her assertions. Moreover, in the case filed by her against the petitioner for offences under Sections 498-A & 406 IPC, the petitioner has been convicted. Thus, there is a judicial finding, although of the criminal court, that the petitioner is guilty of having committed mental and physical cruelty on Smt. Seema. The said finding supports her case that she was, indeed, subjected to mental and physical cruelty. Hence, there is ample evidence to believe Smt. Seema's testimony. 4 Therefore, Smt. Seema had sufficient reasons for staying away from her matrimonial home. Thus, the benefit of Section 125(4) Cr.P.C. cannot be given to the petitioner. Although the petitioner claims that Smt. Seems has sufficient earnings to be able to look after herself and the child, no evidence has been produced to prove this fact. There is a distinction between “making of a statement” and “proving of a fact”. It is one thing to assert a fact, and another to prove it. Since the petitioner has been unable to prove the fact of earning, the learned Judge was, indeed, justified in disbelieving the assertions made by the petitioner. In the case of Shail Kumari Devi & Anr. (supra), the Hon'ble Supreme Court has observed as under :- 44. In our considered opinion, the High Court is not right in holding that as a normal rule, the Magistrate should grant maintenance only from the date of the order and not from the date of the application for maintenance. And if he intents to pass such an order, he is required to record reasons in support of such order. As observed in K. Sivaram, reasons have to be recorded in both the eventualities. The Court was also right in observing that wherever Parliament intended the Court to record special reasons, care had been taken to make such provision by requiring the Court to record such reasons. Further, the Apex Court observed as under : 46. Again, 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 wife. Hence, whenever a wife does not stay with her husband and claims maintenance, the only question which the Court is called upon to consider is whether she was 5 justified to live separately from her husband and still claim maintenance from him? If the reply is in the affirmative, she is entitled to claim maintenance. It is, therefore, open to the Magistrate to award maintenance from the date of application and there is nothing which requires recording of `special reasons' though he must record reasons as envisaged by sub-section (6) of Section 354 of the Code in support of the order passed by him. 47. We, therefore, hold that while deciding an application under Section 125 of the code, a Magistrate is required to record reasons for granting or refusing to grant maintenance to wives, children or parents. Such maintenance can be awarded from the date of the order, or, if so ordered, from the date of the application for maintenance, as the case may be. For awarding maintenance from the date of the application, express order is necessary. No special reasons, however, are required to be recorded by the Court. In our Judgment, no such requirement can be read in sub section (l) of Section 125 of the Code in absence of express provision to that effect. Thus, it is no longer a requirement of law that while directing the grant of maintenance from the date of filing of the application, the Court should state special reasons. Therefore, in case, the learned Judge has not stated special reasons, no fault can be found in the impugned order. However, a bare perusal of the impugned order clearly reveals that, in fact, the learned Judge has given cogent reasons for directing that the maintenance be paid from the date of filing of the application. According to the learned Judge, in case the respondent had stayed with the petitioner during the interim period, the petitioner certainly would have supported her and the child. Therefore, she is entitled to payment of maintenance during the period in which the proceeding continued. After all, the continuation 6 of the proceeding was not due to her fault, but was due to natural sequence of events. Hence, for the said period, she could not be denied the maintenance amount. The reasons so stated by the learned Judge are cogent, valid and legal. Hence, the contention raised by the learned counsel for the petitioner is unacceptable. In this view of the matter, there is neither any illegality, nor any perversity in the impugned order. The petition is devoid of any merit. It is, hereby, dismissed. (R.S.CHAUHAN)J. Manoj Solanki-