JUDGMENT Binod Kumar Roy, J.
1. The petitioner, who is husband of the opposite party No. 3, has come up with a prayer to quash the order dated 1.4.1994 passed by the 1st Additional Munsif Magistrate, Mainpuri in Case No. 54 of 1994 (which is its subsequent number after remand and not the original one) granting maintenance under Section 125 of the Code of Criminal Procedure (here in after referred to as the Code) a sum of Rs. 400/- per month from 16.8.1988, the day on which the wife-respondent No. 3 filed her application under Section 125 of the Code (as contained in Annexure-3),and the revisional order dated 13.7.94 passed by the Sessions Judge, Mainpuri dismissing his Criminal Revision No. 89 of 1994 preferred by the petitioner (as contained in Annexure-4).
2. The relevant facts are in a narrow compass. On 16.6.1988 respondent No.3 filed an application under Section 125 of the Code before the Special Judicial Magistrate, Mainpuri praying to grant her a sum ofRs. 500/- towards maintenance alleging to the following effect. She was married as per the Hindu rites with the petitioner about 3 years ago; her father gave dowry, as per his capacity, but the petitioner, her father-in-law, her Devar and feth became dissatisfied with the dowry and started demanding Television and Motor Cycle in dowry by making different types of comments; in this regard her brother was also called for who and her father could not fulfil me aforementioned demands; thereafter her in-laws started torturing her; she felt deep troubles and informed her brother, who came and tried to make them understand, but failed; after this she was driven out of her home only with the clothes which she was wearing; now she is residing with her father who is old and his brother, who has too got his family and as such they cannot support her; her husband is having a shop of High Speed Diesel, Mobile Oil, Kerosene Oil and Petrol, bedsides his own house and shops and hence she should be given a maintenance of Rs. 500/- so that she could meet her expenses.
The petitioner filed a rejoinder denying the allegations except that of marriage, He asserted the this wife is quarrel-some and always quarrels with his parents and sister; she was asked not to quarrel on which she agreed to reside yet she insisted that he should live separately from his parents. Which was not agreed upon by him, and hence she went to her parents; he went to her in-laws to bring her back but his father-in-law and brother-in-law told him that they will not send her till he separates from his family.
3. The prayer of respondent No.3 was allowed against which the petitioner went up in revision. His revision was allowed and the case was remitted back for affording an opportunity to the petitioner to adduce evidence.
4. After remand several opportunities were granted to the petitioner to adduce further evidence but he failed to do so. The learned Magistrate ultimately vide his order dated 1.4.1994 again allowed the prayer of the respondent No. 3 after observing/holding as follows:
(i) The performance of second marriage by the husband during the life time of his first wife is demonstrative of the cruelty towards the first wife and this is a sufficient reason for the separate living of the first wife from her husband.
(ii) The proposal of the husband to take first wife along with him does not appear to be bonafide inasmuch as he has already filed an application under Section 13 of the Hindu Marriage Act for grant of divorce on 29.11.1988 in the Court of Civil Judge, Etawah.
(iii) The wife has been tortured on account of the demand of dowry.
(iv) There is sufficient reason for the wife to live alongwith her father.
(v) As the husband has not sent any amount to her for her maintenance, who has been residing with her father, thus the husband has been negligent.
(vi) In paragraph 8 of his application filed for grant of divorce, the husband has admitted that he does business in Dibiapur, whereas his parents look after cultivation work in village Chitranjanpur.
(vii) The statement of the husband that he earns only a sum of Rs. 250/- per month from his shop is totally unbelievable.
(viii) It is his responsibility to maintain his wife, who does not do any work and unable to maintain herself.
(ix) From perusal of the record this fact is clear that the husband has unnecessarily delayed the disposal of the proceedings, and accordingly, taking into account the entire facts the claim of the wife's maintenance from the date of her application a sum of Rs. 400/- per month is liable to be accepted.
5. The petitioner went up in revision against this order also. It appears from the impugned revisional order that the only point which was pressed before the Revisional Court on his behalf was that 'no opportunity was afforded to the petitioner for putting up his case'. The learned Sessions Judge dismissed the revision by recording following findings :
(i) Refusal to maintain and charge of adultery are sufficient reasons for the wife to refuse to live with the husband, who is unable to maintain her.
(ii) The award of Rs. 400/- per month as maintenance allowance does not appear to be excessive.
(iii) The learned Magistrate has giveli sufficient reasons for awarding maintenance allowance from the date of application keeping in view deliberate delay on the part of the revisionist. Accordingly, the award of maintenance from the date of application is confirmed.
(iv) The revisionist has failed to avail several opportunities granted to him for presenting his case and the submission for remanding the case for giving opportunity is without any substance.
6. Giridhar Malviya, J. before whom this writ petition was placed for admission on 20.1.1995 passed the following order :
"On this petition notice was issued to respondent No. 3 on the question of admission indicating that the matter would be finally disposed of at the stage of admission itself.
Heard the learned Counsel for the petitioner and the learned Counsel for respondent No. 3.
The question that need determination is that if the Court grants maintenance u/Sec. 125, Cr.P.C. from the date of the application, is it mandatory for the said Court to give reasons why the maintenance should be payable from the date of the application. On this point there is divergence of opinion amongst the Hon'ble Single Judges of the Court.
While deciding the Criminal Revision No. 1122/89, Dharendra Kumar Gupta v. Smt. Chandra Prabha Devi in 1990 Allahabad Criminal Cases 511, Hon'ble S.R. Bhargava, J. held that the order to pay maintenance from the date of application must be supported by reasons. Somewhat identical view has been taken by Hon'ble V.N: Mehrotra, J. in the case of Mahadev Singh v. State of U.P. & Ors. in Criminal. Revision No. 41/89 vide 1991 Allahabad Criminal Cases 371. However, Hon'ble Mr. Justice Virendra Saran has taken a contradictory view in the case of Satish Chandra Gupta v. Smt. Aneeta & Ors., in Criminal Revision No. 513/94 reported in 1994 Allahabad Criminal Cases 563.
To resolve the conflict it is necessary to refer this question to a Division Bench. It will be better if the case itself is referred to the Division Bench so that the writ petition may be disposed of on a single hearing itself.
Accordingly let me papers of this case be placed before Hon'ble the Chief Justice to nominate a Division Bench to decide the question involved in this writ petition."
7. On 11.9.1995 Hon'ble the Acting Chief Justice passed an order for placing the writ petition before me appropriate Bench. It has been finally placed before us for disposal.
8. Mr. U.C. Misra, the learned Counsel appearing on behalf on the petitioner had made following contentions : Section 125(2) of the Code is mandatory and in the said view of the matter the learned Magistrate ought to have given reasons why maintenance was payable from the date of the application. He relied upon (i) Dhannendra Kumar Gupta v. (Smt.) Chandraprabha Devi, 1990 Allahabad Criminal Cases 511, and (ii) Mahadeo Singh v. State of U.P., 1991 Allahabad Criminal Cases 371, both rendered by learned Single Judges of this Court. He also contended that these devi sions be approved by us in preference to the contrary decision taken by another learned Single Judge of this Court in Satish Chandra Gupta v. Smt. Aneeta & Ors., 1994 Allahabad Criminal Cases 563.
9. Mr. P.C. Shukia, learned Counsel appearing on behalf of respondent No. 3, on the other hand, contended as follows :
(i) Section 125(2) of the Code having struck down as ultra vires Article 14 of the Constitution by a learned Single Judge of this Court in Basant Lal v. State of U.P., 1995 Allahabad Criminal Cases 711, the question formulated has become infructuous.
(ii) The reference was wholly unnecessary in view of the patent fact that reasons were given by die learned Magistrate while allowing the application from the date of its filing which was also correctly affirmed by the learned Sessions Judge
(iii) In any view of the matter, the view taken by the learned Singh Judge in Satish Chandra Gupta case (supra) is correct and be affirmed by us.
10. First we take up the question of vires of Section 125(2) of the Code which reads thus:
"Such allowance shall be payable from the date of order, or if so ordered, from the date of the application for maintenance."
In Basant Lal case (supra), K.L. Sharma, J. has struck down it to be ultra vires Article 14 of the Constitution.
11. We called for the records of Criminal Revision No. 1362 of 1994, Basant Lal v. The State of U.P. and Anr., disposed of on 8.2.1995 by K.L. Sharma, J. (as he then was) relied upon by Mr. Shukla. The criminal revision petition does not contain any ground as to how Section 125(2), Cr.P.C. ultra vires Article 14 of the Constitution. It was also disposed of at the admission stage. No notice was issued to the Union stating intention of the Hon'ble Judge that he intends to hold Section 125(2), Cr.P.C. ultra vires of Article 14 of the Constitution though it is true that the learned State Counsel had stated on 6.9.1994 that he has appeared for the State and in this view of the matter no notice was issued to the State of U.P'. who was opposite party No.1 nor was the State Counsel heard on 19.12.1994 and 20.12.1994 before pronouncement of the judgment.
In Swadeshi Cotton Mills Co. Ltd. v. Sales Tax Officer, AIR 1965 Allahabad 86, a Division Bench of our Court has held that when validity of an Act is challenged the concerned State must be impleaded as a party to the writ petition.
A Division Bench of the Orissa High Court in Orient Weaving Mills Ltd. v. Superintendent, Central Excise, AIR 1961 Orissa 186, has held that when the notification in question was issued by the Central Government, the Central Government should be made party to a writ petition in whose absence a writ can not be issued against an official, who alone has been made party.
A Division Bench of the Rajasthan High Court in Syed Husain Ali v. Durgah Committee, Ajmer & Ors., AIR 1959 Rajasthan 177, has laid down that when vires of Central Act has been challenged by the petitioners, who, however, are not claiming any relief against the Central Government, the Union of India need not be impleaded as a party. It may be incidently mentioned that this judgment was reversed by the Supreme Court, though on another point, in Durgah Committee, Ajmer v. Syed Husain Ali, AIR 1961 SC 1402.
However, keeping in view the Division Bench decision of our own High Court and of the Orissa High Court we are of the view that as the validity of Section 125, Cr.P.C. was urged before the learned Single Judge, it was not open for him to declare the said provision ultra vires Article 14 of the Constitution of India without issuing any "notice to the Union Government in view of the patent fact that the Code of Criminal Procedure is not a State Act but a Central legislation.
This apart die law is that there is a presumption of constitutionality of a statute (See State of Bombay v. Balsare, AIR 1950 SC 308, Prabhu Das v. Union of India, AIR 1966 SC 1044, and Garg v Union of India, AIR 1981 SC 2138), Nothing was brought on the record by the revision petitioner by way of pleading in this case as to how Section 125(2) of the Code is arbitrary and ultra vires Article 14 of the Constitution, though required as laid down in East India Tobacco Company v. State of A.P., AIR 1962 SC 1733, State of U.P. v. Kartar Singh, AIR 1964 SC 1135 and Ajay v. Local Board, AIR 1965 S.C. 156.
We also see reasonableness in Sub-section (2) of Section 125 of the Code of Criminal Procedure. The legislative mandate is clear that the Magistrate concerned has got a discretion to grant maintenance from me date of his order, or so ordered from the date of the application, if the proceeding has been delayed by the husband or if there are justifiable reasons in that event the Magistrate will be entitled to grant maintenance to the destitute wife or to the children, if the husband without any reasonable cause has failed to maintain mem or had wilfully neglected to maintain them.
We have thus no hesitation in holding that the decision of the learned Single Judge holding the provisions of Sub-section (2) of Section 125 of the Code ultra vires Article 14 of the Constitution was not correct, and we accordingly over-rule it.
12. Before we proceed further it is also necessary to remind us that when a High Court in exercise of its revisional jurisdiction reduced the maintenance amount awarded under Section 125 of the Code from Rs. 400/- per month from the date of application filed under that section to Rs. 350/- per month/ the Supreme Court in Prem Lata Sahai v. Ram Niranjan Singh, 1989 Supplement (2) SC 731, held that there was no warrant for the High Court for reducing the amount and it should not have modified the order of the Trial Court directing payment of maintenance from the date of application. The said order of the Apex Court reads thus:
"1. Special Leave granted. Heard both the sides.
2. The High Court should have shown better awareness of the plight of women and should not have interfered with an order of maintenance passed in favour of the wife by the Trial Court in exercise of its revisional jurisdiction. There was no warrant for reducing the amount of maintenance awarded by the Trial Court from Rs. 400/- per month to Rs. 350/- per month. So also, the High Court should not have modified the order of the Trial Court by directing that maintenance should be paid from the date of me order of the Trial Court (May 10, 1983) instead of the date of application (September 7, 1979). We, accordingly, allow this appeal, set aside the order of the High Court and restore the order passed by the Trial Court directing payment of monthly allowance at Rs. 400/- per month from the date of application viz. September 7,1979. Payment of arrears shall be made latest by March 31,1989 failure to do so will amount to Contempt of this Court. There will be no order as to costs."
13. With this backdrop we proceed to consider the two learned Single Judge decisions of this Court relied upon by Mr. Mishra.
The relevant facts of Dharmendra Kumar Gupta (supra) were these :
The learned Magistrate had upheld the claim of the wife and awarded a maintenance of Rs. 250/- per month to her payable from the date of his decision. The wife went up in revision. The learned Additional Sessions Judge allowed the wife's revision holding that "it is settled principles of law that the amount of maintenance shall be directed to be paid from the date of the application and not from the date of the order". The husband came up to this Court in revision. S.R. Bhargava, J. set aside the order passed by the learned Additional Sessions Judge by placing reliance on a decision of the Madhya Pradesh High Court in Km. Lachhamani v. Ramu, 1983 Crimes 590, laying down that a bare reading of Sub-section (2) makes it clear that the ordinary rule is that maintenance to wife is payable from the date of order and exception to it is an order making maintenance payable from the date of application and that it would be proper to lay down the law that in cases where the Magistrate or the Revisional Court orders making the maintenance payable from the date of application, it must be supported by reason or reasons, whereas in the instant case the learned Additional Sessions Judge has not assigned any reason for making maintenance payable from the date of application.
In Mahadeo Singh v. State and Anr., (supra) when wife's revision was allowed in part directing maintenance to be paid by the husband from the date of application under Section 125 of the Code, V.N. Mehrotra, J. set aside that order on the ground that he has not given any reason for varying the order of the learned Magistrate, who had allowed maintenance payable from the date of his order, and thus, the order is liable to be set aside.
14. In Satish Chandra Gupta v. Smt. Aneeta, (supra), Virendra Saran, J. disagreed with the view taken by Bhargava, J. observing as follows :
"Speaking for myself I am unable to subscribe to the above interpretation of Section 125(20, Cr.P.C. put by S.R. Bhargava J. and respectfully disagree with the same. When the Section 125(2), Cr.P.C. clearly speaks of two options i.e. maintenance shall be payable from the date of order and if so directed from the date of application, both the options are open to the Court. The Legislature has left it to the discretion of the Magistrate to choose any one of the alternatives considering the facts of each case. However, it is not necessary to refer the case of Dharmendra Kumar Gupta for reconsideration by a Larger Bench for the simple reason that a Revisional Court can always look for reasons itself and in suitable cases modify the order passed by the learned Magistrate."(Italics ours) The learned Judge thereafter proceeded to scrutinise the facts and observed that the proceedings under Section 125, Cr.P.C. lingered on for nearly 5 years and the wife was not only feeding the mouths of her children in these hard days but also spent money for prosecuting her application under Section 125, Cr.P.C. and it was only after-alapseofsomanyyearswhentheordergrantingmaintenancewaspassed.and in his opinion the delay itself is a sufficient ground to grant maintenance from the date of application and proceeded to dismiss the husband's revision holding no force in it.
15. We further find that a Division Bench of the Madhya Pradesh High Court in Smt. Krishna Jain v. Dharam Raj Jain, 1992 Criminal Law Journal 1028, has held that recording of reasons is essential in either case when the maintenance is granted from the date of the application or from the date of order which means date of the Magistrate's order and not Revisional Court order. This Division Bench also referred to a decision of a learned Single Judge of that Court in Inayatulla Khan v. Salma Bano, M.Cr.C. No. 97 of 1983, agreeing with the view in Lachhamani v. Ramu. It also noticed contrary view taken by the Kerala High Court in CM. Manai v. Esther Pachaikara, I (1983) D.M.C. 409 = 1981 Criminal Law Journal (NOC) 76, wherein it was held that it is not necessary for the Court to record reasons for awarding maintenance from the date of application. It also noticed a decision of the Delhi High Court in Makundum Ali v. Nargis Bano, 1983 Criminal Law Journal 111, holding that there ought to be compelling reasons before the wife is deprived of maintenance from the date of application. The Division Bench over-ruled the earlier two decisions of its Court rendered through learned Single Judges holding that it is the discretion of the Magistrate to direct payment either from the date of application or from the date of order after observing that they are unable to read in Sub-section (2) laying down any normal rule to award maintenance from the date of order or of an exception in granting the same from the date of application.
16. We also find that in Lokesh v. Lekho, 1995 Criminal Law Journal 1661, the Kerala High Court took up the view that it is not mandatory to record reasons while granting maintenance. Similar was the view of the Bombay High Court in Managala v. Pandari Nath, 1993 Cr.L.J. 2758; of the Andhra Pradesh High Court in K. Sivram v. K. Mangalappa, 1980 Cr.LJ. 1880; and Ihulasi v. Laxman Rao 1996 Criminal Law Journal 1160; and of a Division Bench of the Punjab and Haryana High Court in Gum Pratap Singh v. Satwant Kaur, 1991 (1) R.C.R. 40, and again of the Delhi High Court in Smt. Raj Kumar v. Dev Raj Vij, 1984 Cr.L.J. (NOC) 206 (Delhi).
17. Sub-section (2) of Section 125 of the Code is word to word reproduction for Section 488(2) of the Code of Criminal Procedure, 1898. Under the provisions as contained in the Codes of 1872 and 1882 maintenance allowance to a wife and the children was to be granted from the date of the order granting maintenance but the provisions were amended in the Code of 1898 authorising the Magistrate to pass an order granting maintenance to be paid from the date of the application. A Division Bench of Bombay High Court in Bhala Valavdas v. Bai Amba, AIR 1926 Bombay 419, held that under Section 488, Cr.P.C. the Magistrate has power to make the payment payable from the date of the application.
In Dr. T.K. Thaymnanuvar v. Asanambal Ammal, AIR 1958 Mysore 190, a learned Single Judge of the then Mysore High Court after considering the aforementioned Division Bench judgment of the Bombay High Court agreed with the conclusion arrived at by the Division Bench judgment adding that an order passed under Section 489 of the Code of Criminal Procedure, 1898, which confers jurisdiction to enhance the quantum of maintenance granted under Section 488 should be effective only from the date of the order but if the Magistrate wants to give a retrospective effect to it, there must be special circumstances.
18. We further find that the Calcutta High Court in S. Kaiser v. Noorjalian, 1980 Criminal Law Journal 611, in the criminal revision of the husband modified that part of the order of maintenance granted by the Magistrate from the date of his order and made it applicable from the date of the application filed by the wife the king in account the fact that she was trying to maintain herself by selling ornaments and also asking the friends and relatives to maintain me family. In Ramesh Chandra v. Beena Saxena, 1982 Criminal Law Journal 1426, a learned Single Judge of our Court took a view that in given circumstance the Magistrate has discretion to award maintenance under Section 125(2) from the date of application. S.C. Jain, J. of our Court in Criminal Revision No. 812 of 1996, Ramakant Sharma v. Smt. Pushpa, decided on July 12,1995 (1996 Allahabad Criminal Cases S.O.C. 1152) dismissed the husband's revision filed against an order granting maintenance to wife from the date of her application when the husband neglected to maintain the wife and children and forced her to live with her father and that they should not suffer on account of the delay in disposal of the maintenance proceeding. The Delhi High Court, too in Makdum Ali v. Mst. Nargis Bano, (supra), in me husband's application under Section 482 of the Code modified the order granting maintenance from its date and directed payment of maintenance from the date of application when the husband has turned out the wife and the children from his house and refused to maintain them and mat there should be compelling reasons for depriving me wife of the maintenance from the date of her application.
19. Agreeing with the views taken by Kerala High Court, Bombay High Court, Andhra Pradesh High Court, Punjab and Haryana High Court, and Delhi High Court, referred to in paragraph 16 referred to as above, in our considered view Section 125(2) of the Code is not mandatory in the sense that the Magistrate while granting maintenance from the date of the application of the destitute wife must assign reasons for doing so though it would have been better if he does so. Non-assigning of the reasons by itself will not vitiate his order and give a handle to the Revisional Court to set aside such an order on this ground alone. Revisional jurisdiction is a discretionary remedy and if the materials are on the record justifying grant of maintenance from the date of application filed by the wife or on behalf of the children it will refuse to exercise its discretion in favour of the revisionist-husband or in a petition filed by the husband under Section 482 of the Code of Criminal Procedure.
20. A writ-petitioner desirous of issuance of a writ of certiorari quashing the orders of the inferior Courts must come up with exceptional grounds. The petitioners' revision, which is a discretionary remedy, has already been dismissed assigning reasons. Whether in this backdrop and the decision of the Apex Court in Prem Lata Sahai (supra) this Court should loathe itself by entertaining his writ petition in the absence of any special ground for interference. Our answer is a definite 'no'.
21. It is not the case of the petitioner that no ground was given by the learned Magistrate while allowing maintenance from the date when application in question was filed by his wife. Accordingly, we hold that this writ petition is wholly misconceived.
22. For the reasons aforementioned this writ petition is dismissed with costs payable to the respondent No. 3 as the petitioner has dragged her to the highest Court of this State.