SHAMIMA Vs. FAROOQ AHMED

JUDGEMENT

(1.) The deserted petitioner-wife was directed to be paid maintenance at the rate of Rs. 150 per month by the trial court from the date of the order passed on 9/8/1988. In the revision petition filed by her, the learned AddI. Sessions Judge, Srinagar, vide his order of reference has recommended for modification of the order of the trial court for granting maintenance from the date of the application filed by the wife. In the order of reference it is stated that as no reasons have been assigned by the trial court to refuse exercise of discretion in favour of the petitioner- applicant for the grant of the maintenance from the date of the application, the order of the trial court required to be modified.

(2.) Under sub-sec. (2) of Sec. 488 of the Code of Criminal Procedure (Corresponding to Sec. 125 of the Central Code of Criminal Procedure), the magistrate has the discretion to grant allowance from the date of the order, or, if so ordered, from the date of the application for maintenance. The provisions of Sec. 488 Cr. P.C. have a social purpose and the object of the proceedings for the maintenance is to prevent vagrancy by compelling a person to support his wife or ehild as was held by the Suoreme Court in A.I.R. 1963 S.C. 15211. It is intended to orovide a deserted soouse andthe child speedy and limited relief. The provisions are not penal in nature but are intended for the enforcement of the duty a default of which may lead to vagrancy. The Provision is intended for ensuring the minimum needs of food, clothing and shelter to deserted wife and children by having recourse to the proceedings which are relatively summary and cannot be equated with the civil proceedings in a suit for maintenance. Keeping in view the purpose, object and scheme of this section, the normal course for the magistrate would be to grant maintenance to the deserted wife and child from the date of the application unless there existed compelling reasons for depriving the deserted wife and child to get the maintenance from that date and from the date of the order. The procedural wrangles and the technicalities of law prevalent in our Judicial system have resulted in the delay of disposal of such petitions which under the circumstances may amount to denial of justice to such deserted wife and child and force them to vagrancy if not adequately protected by the courts of law. Being conscious of the realities in existence, the courts in this country have been safeguarding the interests of such neglected wife and child by granting them interim maintenance despite the fact that there is no such provision in the Code of Criminal Procedure.

(3.) The trial court had found on facts. The non-applicant subjected the applicant to ill-treatment and turned her out from the matrimonial house when she was pregnant. The applicant is ready to live with the non-applicant on the condition of his returning of ornaments and undertaking not to give beating to her which is manifest from her testimony but the non-applicant has not come forward to accept this condition in his evidence when he appeared as his own witness. It has also been, stated at the bar that after the order of maintenance was passed, the respondent husband has divorced his wife to avoid the payment of maintenance to which she was held entitled on proof of desertion. The learned Sessions Judge had rightly held. The trial court seems to have overlooked this essential aspect and there are facts and circumstances made out on record which warrant the order of the trial court to be modified to the extent that the maintenance allowance be ordered to be paid from the date of the application.