KRISHNA JAIN Vs. DHARAM RAJ JAIN

JUDGEMENT

(1.) This is reference made by one of us (Pathak-J) to Division Bench to answer the following questions.

(2.) Smt. Krishnabai was married to non-applicant Dharamraj 16 years before the date of petition in accordance with Hindu Rites. She alleged that when Ku. Kalpana applicant No. 2 was in the womb, the non-applicant snatched her ornaments and forced her to return to her parents. After the birth of the child, she requested him to take her back, but he gave no response. The applicant with her child continues to stay with her parents. On 4-6-1982 the applicant and her child filed petition u/ S. 125 Cr P. C. before the Chief Judicial Magistrate claiming maintenance @ Rs. 400/- per month to the mother and Rs. 200/- to the child from the date or application. The non-applicant filed his written statement on 30-9-1982. The trial Court allowed the application by order dated 24-4-1985, granting Rs. 200/- to the wife and Rs. 100/- to the child from the date of application.

(3.) The non-applicant filed revision on 5-6-1985 before the Sessions Court. The Revisional Court held that Ku. Kalpana was not born from the cohabitation of the non-applicant but this does not affect his liability to maintain her as also his illegitimate child. There being no proof that the applicant was 'living' in adultery, the maintenance could not be denied to her also. Thus, both were held entitled to maintenance from the non-applicant. The Revisional Court further held that the normal rule is to award the maintenance from the date of order and if the maintenance is to be awarded from the date of application, the Court must record reasons. Since no reasons were given by the Magistrate, the award of the maintenance from the date of application, was set aside. The trial Court's order was modified only to the extent that the maintenance to both was allowed from the date of order of the trial Court i.e. 24-4-1985.