KISMATI BAI Vs. GANPATI VANASPATI

JUDGEMENT

(1.) By order dated 16/11/2000, Judicial Magistrate, First Class, Bhopal allowed the petitioners application registered as M.J.C. No. 131/98, moved under S. 125 of the Code of Criminal Procedure, for grant of maintenance.

(2.) Feeling aggrieved by the aforesaid order, these petitioners challenged the same in Criminal Revision No. 432/2000, which was disposed of by the Special Judge, C.B.I. and Third Addl. Sessions Judge, Bhopal on 22/03/2001. The Revisional Court amended the order of the J.M.F.C. on the point of date from which the order of maintenance was to be effectuated. The learned J.M.F.C. granted maintenance since the date of filing of the petition, but the Revisional Court allowed the same from the date of order i.e. 16th of November, 2000.

(3.) It is submitted by Shri Pathak, appearing on behalf of the petitioners, that the learned J.M.F.C. has assigned reasons for making the order effective since the date of application and hence, without recording an opinion about the impropriety or illegality of those reasons, the Revisional Court was not justified in amending the order so far as the date of its effectuation is concerned, by assigning its own reasons. In support of his argument, Shri Pathak has drawn the Court's attention to a Full Bench decision of this Court in the case of Saroj Bai v. Jai Kumar Jain, reported in (1994 MPLJ at page 928). My special attention is drawn to paragraphs 16 and 17 of the aforesaid authority, which runs as follows :- 16. Some of the decisions referred to above which take a contrary view have characterised the order awarding maintenance from the date of the application as an order "with retrospective effect". A misapprehension of the real meaning of the expression 'retrospective' underlies this belief. A direction that the order will take effect from the date of the application does not amount to granting retrospective effect to the order. A claim is made on a particular date and ordinarily the claim is to be considered with reference to the state of affairs as on that day grant of relief with effect from the date of application could be understood as granting relief prospectively and not retrospectively. 17.Shobha Bai's case proceeds on the basis that normally or ordinarily an order should take effect from the date of the order and therefore, specific reasons must be indicated in the order in support of a contrary direction. Section 125(2) does not speak of either reasons or special reasons unlike S. 354(3) of the Code which requires reasons for the sentence awarded in the case of conviction for an offence punishable with death or alternatively imprisonment for life or imprisonment for the term of years and special reasons to be recorded in the case of sentence of death. Section 354 lays down what a judgment should contain. It should contain the point or points for determination, the decision therein and reasons for the decision. Whenever a relevant matter is in controversy, the court should formulate point for determination in regard to the controversy, express its decision thereon and state the reasons for the decision. This applies to all matters in controversy. Looking at the matter from this point of view, the decision regarding the date from which the order is to take effect must be supported by reasons; reasons are required to be given whether the Court stipulates the date of the application or the date of the order, as the date from which the order is to take effect. It cannot be that the reasons are required to be given only where the Court holds that the order is to take effect from the date of the application reasons have to be given even where the Court postpones the date to the date of the order. Technically speaking, a decision which is not supported by reasons is vitiated, but this does not mean that the decision is void or non est or that the superior Court will necessarily set aside the order on the ground of want of specification of reasons. The superior Court will examine the record which has been called for and see whether the decision is supported by materials available on record and if there are such materials, the Court will decline to interfere. This is particularly so while considering an order passed in exercise of the benevioent jurisdiction under S. 125 of the Code. A decision which does not contain reasons in support of the date chosen for effectuation of the order is certainly, to that extent, irregular and defective. But it is not the function of the revisional Court to interfere with every such order on the mere ground of absence of reasons stated in the order. The revisional jurisdiction is intended to satisfy the revisional Court as to the correctness, legality or propriety of the finding of the order or as to regularity of the proceedings of the inferior Court. The revisional Court is not ordinarily expected to re-appreciate the evidence but in a case where an order of maintenance passed under S. 125 of the Code is irregular in the sense that reasons in regard to the date of coming into force of the order are not mentioned, it is the duty of the revisional Court to examine the record called for by it to verify whether the order is correct, or legal or proper. With great respect, we agree with the view taken in Krishna's case and hold that the contrary view taken in Shobhabai v. Radheshyam, (supra) does not lay down the correct law." At this stage, the learned counsel appearing on behalf of the non-applicant submits that paragraph 15 of the said judgment may also be considered. It is considered, but the same does not require reproduction.