JUDGMENT P.K. Jain, J.
1. Heard Mr. Faujdar Rai, learned Counsel for the petitioner.
2. Notices were sent to the respondent No. 3, Smt. Kamli, through registered post which have not been received back served or unserved. Service upon respon- dent No. 3 is being deemed sufficient. No counter affidavit has been filed by respondent No. 3.
3. Present petition has been filed by the husband challenging the judgment and order dated 24.4.1997 passed by the Judicial Magistrate, Mau, awarding maintenance allowance to the respondent No. 3 at the rate of Rs. 400/- per month from 1.5.1991, the date of application and judgment and order dated 13th June, 1997 whereby petitioner's Criminal Revision No. 112 of 1997 was dismissed by the learned Sessions Judge and the judgment and order of the Trial Court was confirmed.
4. The judgments and orders of the Courts below are challenged on the ground that the findings of fact arrived at by the Courts below are against the weight of evidence on record and that there was mutual divorce between the parties and the wife was living in adultery and, therefore, she was not entitled to any maintenance allowance. Further that the petitioner was not proved to have any independent income and on this ground also maintenance allowance could not have been granted. Lastly the contention is that the Courts below have committed error in granting maintenance allowance from the date of application instead of granting it from the date of the order of the Trial Court.
5. It appears from perusal of Annexure-1 to the writ petition that the petitioner had taken a plea in his written statement that a Panchayat was held between the parties and in view of the decision of the said Panchayat there was divorce by mutual consent between the parties. The contention of the learned Counsel for the petitioner is that once there was mutual divorce and the respondent No. 3 had consented to such divorce, the wife shall be deemed to be living separately of her own free will and she will not be entitled to any maintenance allowance. It may be seen that both the Courts below have held that the divorce has not been established and, therefore, the contention of the husband was not acceptable. Learned Counsel for the petitioner has strenuously argued that there was reliable evidence about divorce by mutual consent and finding of fact of the Courts below in this regard is perverse.
6. The attention of the Court is drawn to the statement of Smt. Kamli, respondent No. 3, which is Annexure-2 to the writ petition. In her deposition she has admitted about holding of a Panchayat but according to her the Panchayat was held at the house of her father and Paras had told in the Panchayat that he would not take his wife with him. Although there was nothing in her statement to the effect that there was divorce by way of "Chhutta-Chhutti" but to a vague question put to Smt. Kamli, she stated that she does not remember as to how much time had elapsed since "Chhutta-Chhutti" between her and Paras. Learned Counsel submits that by making such statement Smt. Kamli has admitted Chhutta-Chhutti which according to the custom of the parties means divorce by mutual consent. Courts below have not accepted this divorce as by mutual consent. One of the reasons given was that the lady is an illiterate rustic villager and the other was that the evidence of Panchayat was contradictory and thirdly that the divorce between Hindus could be by a decree of divorce under Section 13 of the Hindu Marriage Act unless a custom prevailing between the parties is established and in the instant case no such custom is established.
7. Learned Counsel for the petitioner has vehemently argued that the parties are Kurmis by caste and there existed such custom in their community. The copies of the statements which have been produced before this Court do not anywhere disclose that any such custom was pleaded by the petitioner in his written statement or during cross-examination of the witnesses or the same was admitted by any of the witnesses. Merely because the parties are Kurmis by caste, it cannot be held that such a custom was prevalent between the parties unless it was specifically pleaded and admitted by the other party or established by leading cogent and reliable evidence. Petitioner has failed to prove that there was a custom between the parties whereby marriage could be dissolved by mutual consent in presence of the Panchayat. In my view Courts below have committed no error in holding that the custom was not established by the husband. As regards the Panchayat, according to Smt. Kamli, respondent No. 3, the Panchayat was held at her residence. It is not specifically put to her that in the Panchayat she had agreed to the proposal of Chhutta-Chhutti nor there is any suggestion that in the said Panchayat there was any Chhutta-Chhutti and thereafter marriage between the parties was dissolved. On the other hand, the petitioner has examined D W 3 Chandra Kesh Yadav, copy of whose statement is Annexure-3 to the writ petition. According to this witness the Panchayat was held at the house of the petitioner and Kamli had not attended that Panchayat. Only Kamli's father and uncle had attended the Panchayat. Thus, according to the evidence of the petitioner himself, Kamli was not present when the alleged Chhutta-Chhutti had taken place. Therefore, if there was any agreement between her father and uncle on one hand and the petitioner and his father on the other hand, that could no the binding upon respondent No. 3. The burden of proving that there was divorce by mutual consent was upon the petitioner. The Courts below have rightly held that it was not proved by the petitioner. Thus, there is no perversity in the findings of the Courts below. It appears that during cross- examination a question was put to the respondent No. 3 as to how much time back the Chhutta-Chhutti had taken place to which she replied that she did not know as to how much time back the Chhutta-Chhutti had taken place. Such a statement could not mean her admission of the factum of. Chhutta-Chhutti /divorce by mutual consent. Unless she was made to understand as to what was meaning of the Chhutta- Chhutti, it cannot be said that she admitted the divorce by mutual consent.
8. Next ground is that the finding of the Courts below that the allegation of adultery is not proved is also perverse. The contention of the learned Counsel for the petitioner is that the child was born in the parental home of the respondent No. 3 about one year after she left the matrimonial home. In my view, there is mis- reading of the evidence of respondent No. 3. In her deposition she has stated that when she was turned out of her house she went to her parent's house where she lived for 6-7 months. Thereafter she went to the house of the husband where she remained for about a year and her in-laws had been repeated by threatening to desert her and solemnise second marriage of the petitioner. She has also stated that during her stay of one year in her matrimonial home a daughter was born to her. During cross-examination she has categorically stated that the birth to the daughter was given by her in the house of the petitioner. Her admission is only to the effect that the child died when she came back to her parent's house after she was turned out of the house by the husband. The Courts below have rightly held that the burden of proving that the child was not born from the husband which he has failed to establish and allegations that the child was born from some other person amount to the allegations against the wife that she was leading adulterous life. The Courts below have rightly held that the petitioner/husband has failed to establish that the wife was leading adulterous life and since false allegation against chastity of the wife was made, she was entitled to live separately and claim maintenance allow- ance. Therefore, in my view there is no error in the findings at the Courts below.
9. Next question raised is about the quantum of maintenance allowance. The wife in her statement stated that the husband was earning around Rs. 4,000/- per month from agriculture. During her cross-examination she stated that Paras owned 10 Bighas agricultural land. There is no suggestion to her that Paras does not own any agricultural land or that he was not earning anything. Petitioner, of course, has adduced oral evidence that he does not own any agricultural land and the land belongs to his father. It has come in evidence that the petitioner is the only son of his father and he does agriculture with his father. The Revisional Court has also taken into consideration the fact that he is otherwise an able-bodied man having stout physique. Even if he is unemployed he is not entitled to refuse to maintain the wife. Since claim of the wife that husband is earning around Rs. 4,000/- per month is not disputed by cross-examining her on this jioint or by suggesting her that the husband does not own any agricultural land and since being a man of stout physique he has capacity to earn, in my view the Courts below have committed no error in holding that the petitioner has means to maintain his wife and he is neglecting her without sufficient cause. In my view, therefore, there is no error in the findings of the Courts below.
10. The last question raised by the learned Counsel for the petitioner is that the maintenance allowance has been wrongly awarded from the date of application.
11. Section 125(2) Cr.P.C. provides that such allowance shall be payable from the date of the order, or, if so ordered, from the date of the application for maintenance. Bare perusal of this provision will show that if the Court orders that the maintenance allowance shall be paid from the date of application, if shall be payable from the date of application otherwise it would be payable from the date of the order. The contention of the learned Counsel for the petitioner is that special reasons should be given by the Court as to why the maintenance allowance is directed to be paid from the date of application. Although there is nothing in the section providing that the maintenance allowance should ordinarily be granted from the date of order but in some cases it has been held that unless special reasons are given maintenance shall be granted from the date of order and not from the date of application. In my view bare reading of Sub-section (2) means only that when it is not mentioned in the order as to from which date the maintenance allowance shall be granted, the maintenance allowance shall be deemed to have been granted from the date of order but when specific order is passed that the maintenance allowance is being granted from the date of application, then it would be payable from the date of application. Propriety demands that the Courts should given reasons for granting maintenance allowance from the date of application but if it has not done so, in my view the order of granting maintenance allowance from the date of application would not be without jurisdiction and would not suffer from any illegality. In any case when such an order is challenged in a writ petition, it is for the petitioner to show that there existed no sufficient ground for granting maintenance allowance from the date of application. Besides this, it would be seen that the application was moved in 1990 and could be decided only in the year 1997. W.S. was filed by the petitioner one year after moving of the application and thereafter statement of the respondent No. 3 was recorded in December, 1993. Petitioner's evidence, however, concluded much later. Proceedings under Section 125, Cr. P.C. are summary proceedings which are intended to do social justice between the parties so that the wife and the children may not be forced to live the life of destitution and vagrancy. If wife is not to be blamed for delay in disposal of the maintenance proceedings, she is entitled to maintenance allowance from the date of application. Nothing has been shown to conclude that the maintenance application could not be decided on account of dilatory tactics adopted by the wife, respondent No. 3. Therefore, in exercise of writ jurisdiction the discretion exercised by the Courts below in granting maintenance allowance from the date of application cannot be interfered with.
12. Petition is devoid of merit and is finally disposed of at the admission stage.