- (1.) THE petitioner has challenged the order 02.04.2009 passed by the Family Court, Kota whereby the learned Judge has directed the petitioner to pay a maintenance of Rs.1,500/- per month to the respondent from the date of filing of the application under Section 125 Cr.P.C.
(2.) MR. Govind Chaudhary, the learned counsel for the petitioner, has contended that the petitioner had filed an application under Section 9 of the Hindu Marriage Act for restitution of conjugal rights. The said application is still pending. Therefore, the respondent is not entitled to claim any maintenance during the period the said application is pending before the Court. Secondly, the learned Judge has not assigned any cogent reasons for granting the maintenance from the date of the filing of the application. According to Section 125 Cr.P.C., the order of maintenance becomes operational from the date of the order. In case the maintenance is to be paid from the date of filing of the application, then the learned Judge is required to state special reasons. Heard the learned counsel for the petitioner and perused the impugned order. The pendency of an application under Section 9 of the Hindu Marriage Act does not preclude the wife from seeking relief under Section 125 Cr.P.C. Therefore, merely because an application is pending under Section 9 of the Hindu Marriage Act, it would not dis-empower the Court from passing an order under Section 125 Cr.P.C. Therefore, the first contention raised by the learned counsel is unacceptable. In the case of Shail Kumari Devi&Anr. V/s. Krishan Bhagwan Pathak @ Kishun B. Pathak. [AIR 2008 SC 3006], the Apex Court has observed as under :- 44. In our considered opinion, the High Court is not right in holding that as a normal rule, the Magistrate should grant maintenance only from the date of the order and not from the date of the application for maintenance. And if he intents to pass such an order, he is required to record reasons in support of such order. As observed in K. Sivaram, reasons have to be recorded in both the eventualities. The Court was also right in observing that wherever Parliament intended the Court to record special reasons, care had been taken to make such provision by requiring the Court to record such reasons. 47. 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. Hence, while granting the maintenance from the date of filing an application under Section 125 Cr.P.C., the learned Judge is not required to give special reasons for passing the said order. Therefore, the second contention raised by the learned counsel for the petitioner is equally unsustainable. Even otherwise, a bare perusal of the impugned order clearly reveals that, in fact, the learned Judge has given concrete and cogent reasons for granting the benefit of maintenance from the date of filing of the application. According to the learned Judge, in case the respondent were to stay with the petitioner during the period of pendency of the application, the petitioner was legally bound to make provisions for her. Thus, he would have spent money upon her. Merely because she is staying away from him, during the pendency of the proceeding, she cannot be deprived of the amount that the husband would have otherwise spent on her. The logic of the learned Judge is both sound and legally valid.
(3.) IN this view of the matter, the revision petition is devoid of any merit; it is, hereby, dismissed.;