- (1.) HEARD .
(2.) THE present criminal revision has been filed against the order passed by the learned Judge, Family Court, Azamgarh whereby awarding the maintenance allowance to the tune of Rs.500/- per month to the wife from the date of the filing of the application. It is contended in the revision that the order passed by the learned Family Judge is illegal, improper and not sustainable in the eye of law; the judgment is perverse and against the material evidence on record; the revisionist is still ready to keep the opposite party no.2 as his wife but she is not willing to live with the revisionist; the findings recorded by the learned Judge, Family Court about the performance of second marriage is erroneous; the revisionist filed a suit against the opposite party under section 9 of the Hindu Marriage Act but the opposite party is not cooperating in the said suit; the claim of the opposite party was rightly rejected by the learned Judge, Family Court vide order dated 19.10.2004, but in revision the matter was remanded and hence he passed the impugned order.
(3.) DURING the course of arguments the learned counsel for the revisionist emphasized on the point that award of maintenance has been granted from the date of the application and the learned Judge has not given any reason for the same and that the grounds taken in the revision are general in nature and no specific ground has been taken assailing the order passed by the learned Judge. In this regard it is contended on behalf of the learned counsel for the revisionist that the learned lower court while awarding the maintenance allowance from the date of application ought to have recorded reasons therefor. He relied upon a ruling of this Court laid down in the case of Raju vs. State of U.P. and others, reported in [2010 (69) ACC 467] wherein the learned Judge has allowed the applilcation under section 125 Cr.P.C. and directed the revisionist to pay Rs.500/- as maintenance allowance from the date of application; no reasons recorded by Magistrate as to under what circumstances the maintenance allowance is being ordered to be paid from the date of application though the learned Magistrate should have allowed the maintenance from the date of its order. In yet another ruling laid down in the case of Masood Ahmad Khan @ Afaq v. State of U.P. and another, reported in [2010 (69) ACC 1022] this High Court has held that the learned lower court allowed Rs.5000/- per month as maintenance allowance from the date of the application; order modified to the extent that the date of payment of maintenance shall be 1.1.2005 instead of 24.8.2002. In this case the Hon'ble High Court has relied upon the judgment of Apex Court rendered in the case of Shail Kumari Devi and another v. Krishan Bhagwan Pathak @ Kishun B. Pathak wherein the Apex Court has held as under: "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 (1) of section 125 of the Code in absence of express provision to that effect." ;