SHOBHA BAI Vs. RADHEY SHYAM

JUDGEMENT

(1.) THIS case has come up before us on a reference made to the Hon'ble Chief Justice by brother K. K. Varma, J. The question posed in the reference is in the context of Section 125 (2) of the Code of Criminal Procedure, 1973 and is to be found in paragraph 16 of the order of reference. It is to the following effect: ......whether the legislature at the time intended to say that the Magistrate must record reasons to pass a valid grant of maintenance (on the merits) from the date of the filing of the application of maintenance. In other words, does the non -recording of reasons in the aforementioned situation has the effect of vitiating the direction (for the payment effective from the date of the application for maintenance) and making it bad in law on that account.

(2.) BRIEFLY stated, the wife's claim for maintenance under Section 125 Cr. P. C. was allowed by the Magistrate not from the date of order, but from the date of application for maintenance, without assigning any reason for the same. In revision by the husband, the order was modified by the Addl. Sessions Judge and the maintenance was made payable from the date of order in place of the date of application, as directed by the Magistrate. While doing so, the learned Additional Sessions Judge relied on certain decisions of this Court, referred to in the order of reference, which laid down that direction for payment of maintenance from the date of application required to be backed by reasons Being aggrieved, the wife preferred the present revision petition and claimed maintenance from the date of her application, as awarded by the Magistrate. It appears that during the course of hearing of this revision petition, a decision of the Supreme Court in Smt. Saviri v. Govind Singh Rawat, : AIR 1986 SC 984 was cited before the learned Single Judge. It was held by the Supreme Court that even in the absence of specific provisions and in the absence of any express bar in the Code of Criminal Procedure, ''it is appropriate to construe the provisions in Chapter IX as conferring an implied power on the Magistrate to direct the person against whom an application is made under Section 125 of the Code to pay some reasonable sum by way of maintenance to the application pending final disposal of the application." It was further held that in appropriate cases, the Magistrate had powers to grant even ex -parte interim maintenance, pending service of notice of the application. Now in the light of this decision of the Supreme Court, it appears that brother K. K. Varma, J. doubted the correctness of the various decisions of this Court, referred to in the order of reference and made this reference to the Hon'ble Chief Justice by observing as follows in paragraph 16 of the reference :

(3.) ......Thus, now it being the legislative intendment spelled out by the Supreme Court that a Magistrate has the power - -and also the duty in appropriate cases -to grant an interim maintenance, even an ex parte interim maintenance, during the hearing of the main application for maintenance, one may ask whether the legislature at the time intended to say that the Magistrate must record reasons to pass a valid grant of maintenance (on merits) from the date of the filing of the application of maintenance, in other words, does the non -recording of reasons in the aforementioned situation has the effect of vitiating the direction (for Re -payment effective from the date of the application for maintenance) and making it bad in law on that account.'' The learned counsel for the parties did not make any addition to the authorities mentioned in the order of reference;. After hearing them, we proceed to answer the question posed in the order of reference. Section 125 (2) Cr. P. C reads as follows : Such allowance shall be payable from the date of the order, or, if so ordered, from the date of the application for maintenance. A plain reading of these provisions would show that :