- (1.) THE petitioner has challenged the order dated 17.10.2008 passed by the Judicial Magistrate (First Class) Sikari, District Dausa wherein the learned Magistrate has directed the petitioner to pay a maintenance of Rs.1,500/- per month to the respondent No.2, Vimla Devi, from the date of filing of the application i.e. from 23.08.2006 after deducting the amount which she may be receiving as maintenance under an order passed by any other court.
(2.) IN brief, the facts of the case are that Vimla Devi, filed an application under Section 125 Cr.P.C. before the learned Magistrate claiming maintenance against the petitioner. She claimed that she was married with the petitioner about ten years ago according to Hindu rites and customs. The marriage was performed at village Bhojpura. After the marriage, when her brother came to her in-laws' house to take her, the petitioner and his family members misbehaved with her and her brother for not giving a motorcycle, a color T.V.&a fridge in dowry. After she came back to her parental house, the petitioner and his family members never came back to take her, but regularly demanded dowry. On their demand, her father gave Rs.15,000/- to the petitioner for dowry and to take her back to the matrimonial home. After a few days, again the petitioner and his family members started cruelty with her. Eventually, they threw her out of the matrimonial home. She is living with her parents. According to her, the petitioner is having plenty of income as he is having agriculture land, shops, tractor and also he is working in Jaipur-Mahwa Tollway Pvt. Ltd. as Toll Collector and he receives Rs.5,000/- gross salary, and Rs.4,715/- net salary. On the other hand, she is not having any source of income. Therefore, the petitioner is morally and legally bound to provide maintenance to her. Hence, she prayed for maintenance amount of Rs.2,500/- per month. On the application, the learned Magistrate issued notice to the petitioner. The petitioner filed his reply. In the reply, he stated that at the time of marriage, he was minor and the respondent never come to his house after she became an adult. The learned Magistrate recorded the evidence of both the parties. In order to buttress her case, the respondent No.2 examined herself as witness. In turn, the petitioner examined himself and two other persons as witnesses. After hearing both the parties, vide order dated 17.10.2008, the learned Magistrate directed the petitioner to pay a maintenance of Rs.1,500/- per month to Smt. Vimla Devi, as mentioned above. Hence, this petition before this Court. Mr. M.K. Kaushik, the learned counsel for the petitioner, has vehemently contended that in an order passed by the Additional District Judge, Bandikui under Section 24 of the Hindu Marriage Act, the learned ADJ had directed the petitioner to pay a maintenance of Rs.1,200/- per month. However, notwithstanding the said order, the learned Magistrate has directed the petitioner to pay a maintenance of Rs.1,500/- per month. Thus, the learned Magistrate has violated judicial propriety in going beyond the order passed by a superior court namely, the Court of Additional District Judge. Hence, the impugned order deserves to be quashed and set aside on this ground alone. Secondly, while granting maintenance from the date of filing of the application, the learned Magistrate is required to state special reasons as contemplated under Section 125 Cr.P.C. However, in the present case, the learned Magistrate has failed to give any special reasons for granting maintenance from the date of filing of the application. Hence, the learned Magistrate has failed to observe the requirement of Section 125 Cr.P.C. In order to buttress his contention, the learned counsel has relied upon the case of Shantilal Vs. Smt. Sushila [2006 (1) Cr.L.R. (Raj.) 285] and the case of Mahendra Kumar Vs. Rajesh Rathore&Ors. [2007 (1) RCC 155]. On the other hand, Mr. Pankaj Gupta, the learned counsel for the respondent No.2, has strenuously argued that an order passed by the ADJ under Section 24 of the Hindu Marriage Act is based on different criteria. Therefore, the said order cannot bind the judicial discretion of the learned Magistrate while the learned Magistrate exercises the power under Section 125 Cr.P.C. Secondly, the learned Magistrate was well aware of the fact that an order had been passed by another court. Therefore, he has directed that the amount of Rs.1,500/- per month should be reduced by the amount that the wife may be receiving on the basis of any other judicial order passed by a court. Therefore, when the petitioner was directed to pay a maintenance of Rs.1,200/- per month in accordance with an order passed by the learned ADJ, the petitioner is required to pay merely Rs.300/- per month in accordance with the impugned order. Hence, the learned Magistrate has not violated judicial propriety. Thirdly, in the case of Shail Kumari Devi&Anr. Vs. Krishan Bhagwan Pathak @ Kishun B. Pathak [AIR 2008 SC 3006], the Honourable Supreme Court has clearly held that while passing an order under Section 125 Cr.P.C, and while directing the grant of maintenance from the date of filing of the application, the learned court is not required to give any special reasons. The only requirement of law is that an express order should be passed. Therefore, the learned Magistrate has not committed any illegality in not giving any special reasons while passing the impugned order. In rejoinder, Mr. Kaushik has contended that the word express order would mean the giving of special reasons. Therefore, even according to the Honourable Supreme Court's opinion in the case of Shail Kumari Devi (supra), the Magistrate would be required to give special reasons for granting maintenance from the date of submission of the application under Section 125 Cr.P.C. Heard the learned counsel for the parties and perused the impugned order, as well as, considered the case law cited at the Bar. It is, indeed, trite to state that a wife is entitled to get maintenance under different laws, namely, under Section 24 of the Hindu Marriage Act, under Section 125 of Cr.P.C. and under the provisions of the Protection of Women from Domestic Violence Act, 2005. These provisions are applicable in different proceeding either pending before the same court, or before different courts. Furthermore, the criteria for granting maintenance under different provisions of law also differs. Therefore, an order passed by a court in one particular case would not bind the judicial discretion being exercised by another court. At best, an order passed by one court can be treated as a mitigating circumstance while passing a maintenance order under a different provisions of law. Therefore, the contention raised by the learned counsel for the petitioner that the order passed by the ADJ court would crib, cabin and confine the judicial discretion of the learned Magistrate is unacceptable.
(3.) MOREOVER, a bare perusal of the impugned order clearly reveals that the learned Magistrate was well aware of the fact that Smt. Vimla Devi was also receiving a maintenance amount in accordance with an order passed by the learned ADJ. Therefore, the learned Magistrate has clearly directed that the amount so received shall be adjusted against the amount of maintenance under Section 125 Cr.P.C. Thus, the learned Magistrate, for all practical terms, has granted a maintenance of Rs.300/- per month. Hence, it is impossible to hold that the learned Magistrate has violated judicial propriety. In fact, the learned Magistrate has passed impugned order while keeping judicial propriety in mind. The controversy whether the learned Magistrate is required to give special reasons for grant of maintenance from the date of filing of the application or not has taxed the judicial imagination of various High Courts. A bare perusal of the decisions of this Court in the case of Shantilal (supra) and in the case of Mahendra Kumar (supra), clearly reveal that this Court was of the opinion that when it is directed that the maintenance is to be paid from the date of filing of the application, the learned Magistrate is legally required to state special reasons. However, this controversy has now come to rest with the decision of the Honourable Supreme Court in the case of Shail Kumari Devi (supra). The Honourable Supreme Court has opined 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. ;