- (1.) P. K. Jain, J. Heard Sri K. Ajit, learned Counsel for the petitioner and learned A. G. A.
(2.) BY the present writ petition the pe titioner challenges the judgment and order dated 21st September, 1994 passed by the 1st Addl. Munsif Magistrate, Mainpuri in Criminal Proceedings under Section 125, Cr. P. C. granting maitnenance allowance at the rate of Rs. 300/- per month to the wife Smt. Raj Kumari alias Munni from the date of application and judgment and or der dated 28-6-97 passed by the Vth Addl. Sessions Judge, Mainpuri, whereby the revisional court dismissed criminal revision No. 268 of 1994. The impugned judgments and or ders are challenged mainly on the grounds that the wife made allegations of cruel treatment and demand of dowry but no finding was given by the courts below in this regard, that the courts below have not given any finding on the question as to whether the husband neglected his wife and further that an offer to maintain the wife was given provided she lives with the husband but the findings of the courts be low are not given on cogent reasons. The petitioner's learned Counsel argued at length at the admission stage and it was vehemently argued that the re spondent Smt. Raj Kumari has alleged in her deposition under Section 125, Cr. P. C. that she was cruelty treated by her husband and his family members and further that she was turned out of his house. The peti tioner has denied such allegations and both the parties led evidence but neither the trial Court nor the revisional court gave any finding in this regard. It is true that both the courts, after mentioning the facts, did not give any finding on the question of cruel treatment as well as de mand of dowry but at the same time the learned Magistrate has, after carefully examining the evidence on record, held thatthere were sufficient reasons for the wife to live separatley and at the same time claim maintenance allowance. Two rea sons given for this finding were that there was an allegation by the husband, the pre sent petitioner, that the wife had illicit relations with some body else. Such a wild allegation was made in the written state ment but no evidence was adduced to es tablish such allegation. The second ground was that the offer of the husband was only conditional offer and hence it cannot be said to be a genuine one. The allegations of the wife were that she was turned out of the house and her jewellery was kept by the husband and in-laws. The husband's claim was that the wife left the matrimo nial home of her own free will and had taken away the jewellery with her. It appears that in his deposition or written statement the husband had made an offer that he was ready to keep his wife pro vided she returned him the jewellery and other valuables. There is no dispute that allegations against the faithfulness of the wife to her husband and conditional offer as pointed out above were made by the petitioner. In these circumstances even if there was no finding on the question of cruel treatment and demand of dowry, although the trial court should have given specific finding in this regard, the wife would be entitled to maintenance allow ance by living separately as she has suffi cient cogent reasons to live separately and claim maintenance allowance. It is welt settled that once wild allegation about ths character of the wife is made and is not proved, that also amounts to cruel treat ment and wife is entitled to iive separately after such allegations are made against her. It is also well settled that the offer made by the husband to keep the wife and maintain her should be clearly genuine and without attaching any condition spe cially with regard to the bringing of valu ables with her when such valuables belonged to her. Both the courts below have held that the offer of the husband was not genuine as he attached condition of bringing jewellery and clothes with her. Therefore, in these circumstances the findings of the trial Court that the wife was entitled to live separately and claim maintenance allowance cannot be said to be perverse or without any evidence on record.
(3.) AS regards the question of neglect, the trial Court has observed in its judg ment that the petition was filed on 16-4-91 and the written statement was filed on 10-5-91. The case remained pending for about three years and both husband and wife were living separately but the husband did not pay any maintenance allowance to the wife. Although the trial Court did not give any specific finding that there was neglect on the part of the husband, but, these ob servations clearly indicate that the wife was neglected and the husband having sufficient means had neglected the wife. The courts below have given a finding that the income of the husband was around Rs. 750/- per month and he could easily pay Rs. 300/- per month to the wife. Consider ing the fact of price rise and increase in wages of the labourers, the amount of Rs. 300/- per month cannot be said to be ex cessive. The courts below have also taken into consideration that the husband him self claimed that he had given presents of Rs. 25000/- to 30000/- in the shape of jewellery to the wife at the time of mar riage and this also indicates about his status and means to maintain the wife. There does not appear to be error or ille gality in the findings. It has lastly been contended that the award of maintenance allowance from the date of application without cogent reasons is not justified. Sub-section (2) of Section 125, Cr. P. C. provides that such allowance shall be nayable from the date of the order, or, if so oiclered, from the date of the ap plication for maintenance. The trial Court in its judgement observed that the petition was pending since April, 1991 and during the pendency of the petition no mainte nance allowance was given to the wife and hence she was entitled to the maintenance allowance from the date of application. The revisional court relying on a decision of this court in the case Basant Lal v. State of Uttar Pradesh and others, 1995 JIC 806 (AH), held that the provisions of sub section (2) of the Section 125, Cr. P. C. has been held to be ultra vires. The judgment in Basant Lai's case was challenged before the Hon'ble Supreme Court in Criminal Appeal No. 82 of 1996 arising out of S. L. P. (Crl.) No. 1828 of 1995. The Hon'ble Supreme Court in its judgment and order dated 18th January, 1996 set aside the said judgment of the High Court and made following observations: "it apparently needs to be stated that statutory provisions are to be assumed to be constitutional; that constitutionality is to be considered only where absolutely necesesary, that a statute cannot be struck down unless notice has been given to the Attorney General in the case of a Central Statute, as here, or the Advocate General in the case of a State Statute. According to learned counsel for the husband- appellant, the contention that Section 125 (2) was unconstitutional had not even been raised in the pleadings. There is no doubt that the judgment must be set aside insofar as it holds that Section 125 (2) is unconstitutional. " Therefore, the grant of maintenance allowance from the date of application could not be justified on the ground that the provisions of Section 125 (2) are ultra vires. A perusal of Section 125 (2), Cr. P. C. shows that normally when nothing is stated in the judgment about the date from which maintenance allowance is to be paid by the husband, the maintenance allow ance shall be payable from the date of or der. However, in cases where there is a specific direction that The maintenance allowance should be payable from the date of application, it shall be payable from the date of application. In some decisions it has been held that sub-section (2) of Sec tion 125, Cr. P. C. serves as proviso to sub section (1) and normally when the Court directs award of maintenance allowance from the date of application special rea sons for doing so should be given. In the instant case as already mentioned above some reasons has been given by the trial Court for awarding maintenance allow ance from the date of application. It may be pointed out that provisions of Section 125, Cr. P. C. are in the nature of social leg islation in order to provide speedy remedy to neglected wife and children so that they may not lead the life of destitute and va grancy. Therefore, in my view normally the maintenance allowance should be granted from the date of application unless there exists special reasons for not grant ing maintenance allowance from the date of application. In case this view is not taken, the husband or the person against whom maintenance petition is filed, would adopt all legal tactics to delay disposal of the petition filed under Section 125, Cr. P. C. and thereby postpone his liability to pay maintenance allowance to the wife, chil dren or other claimants as the case may be. In exercise of writ jurisdiction an order or judgment of the court below cannot be quashed unless the petitioner satisfies the Court that the impugned judgments and orders are perverse or illegal. The peti tioner has not been able to show any such perversity or illegality.;