1 The petitioners have preferred this Revision Application under Section 397 read with Section 401 of the Code of Criminal Procedure, 1973 and challenged the order passed by learned Additional Sessions Judge, Gandhinagar at Kalol in Criminal Revision Application No. 78 of 2005 refusing to grant enhanced maintenance from the date of application.
2 The facts of the case are that the petitioners are wife and son respectively of respondent No. 1. The petitioners filed maintenance application under Section 125 of the Code of Criminal Procedure by preferring Criminal Miscellaneous Application No. 39 of 2002. The parties settled the disputes and respondent No. 1 agreed to pay maintenance of Rs. 500/- per month to petitioner No. 1 and maintenance of Rs. 300/- per month to petitioner No. 2 from the date of application. Thereafter, the petitioners preferred application under Section 127 of the Code of Criminal Procedure for enhancement of maintenance on the ground of change in circumstances by preferring Criminal Miscellaneous Application No. 226 of 2003. The trial Court after considering material placed before it by order dated 5.8.2005 enhanced the amount and awarded maintenance of Rs. 4,800/- per month to petitioner No. 1 and Rs. 2,500/- per month to petitioner No. 2 from the date of application. Therefore, respondent No. 1 preferred Criminal Revision Application No. 78 of 2005 before learned Additional Sessions Judge, Gandhinagar at Kalol. The revisional Court after hearing learned advocates for the parties, by impugned judgement, partly allowed the revision application and granted enhanced maintenance awarded by the trial Court from the date of order of the trial Court and thereby refused to grant enhanced maintenance from the date of application. Being aggrieved by the said decision, the petitioners have preferred this Revision Application.
3 I have heard learned advocate Mr. Brahmbhatt for the petitioners, learned advocate Mr. Kalpesh Nadia for respondent No. 1 and learned A.P.P. Ms. C.M. Shah for respondent No. 2 State.
4 Learned advocate Mr. Brahmbhatt submitted that the revisional Court while partly allowing the revision application, concurred with the findings recorded by the trial Court but without assigning cogent and convincing reasons, awarded enhanced maintenance from the date of order relying on the decision of the Rajasthan High Court in the case of RAJ KUMAR VS. SHANTA BAI reported in 2002 Cri. L. J. 2894. He also submitted that when the revisional Court confirmed the findings of facts recorded by the trial Court, it committed error in awarding the amount of enhanced maintenance from the date of order and not from the date of application. He, therefore, submitted that the revisional Court committed error in exercising the jurisdiction vested in it and therefore the impugned order is required to be set aside. He relied on the decision of this Court in the case of DAXABEN VS. NILESHKUMAR reported in 2003(1) GLR 436.
5 Learned advocate Mr. Nadia for respondent No. 1 submitted that lower revisional Court relying on the decision of the Rajasthan High Court in the case of RAJ KUMAR VS. SHANTA BAI (supra) which followed the decision of Andhra Pradesh High Court in the case of PILLI VENKANNA VS. PILLI NOOKALAMMA reported in 1998 Cri. L.J. 1922, passed the order and awarded the enhanced maintenance from the date of order. Therefore, no error is committed in the impugned order and the present Revision Application is required to be dismissed.
6 Under Section 125 of the Code of Criminal Procedure, if any person having sufficient means neglects or refuses to maintain his wife, unable to maintain herself or his legitimate child, a Magistrate of First Class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child at such monthly rate as such Magistrate thinks fit. Section 127 of the Code provides that on proof of a change in the circumstances of any person receiving a monthly allowance under Section 125 may make an application to the Magistrate for alteration in allowance for maintenance. It emerges that the petitioners filed application for maintenance under Section 125 of the Code and there was settlement between the parties. Thereafter, the petitioners preferred application for enhancement of maintenance under Section 127 of the Code alleging change in the circumstance. The trial Court after considering the evidence produced by the parties enhanced the amount of maintenance awarded earlier. Therefore, respondent No. 1 preferred revision application before the Sessions Court. The record indicates that after hearing learned advocates for the parties, the revisional Court confirmed the amount of enhanced maintenance awarded by the trial Court but by partly allowing the revision application awarded the enhanced amount of maintenance from the date of order of the trial Court and thereby the revisional Court refused to grant enhanced amount of maintenance from the date of application. It appears that the revisional Court relied on the decision of the Rajasthan High Court in the case of RAJ KUMAR VS. SHANTA BAI (supra). In the said decision the High Court declared the order of learned Additional Sessions Judge as illegal on the ground that order of enhancement could only be passed by the Magistrate or by the Court who passed the earlier order and the enhancement made by the Additional Sessions Judge in revision is per se illegal and without jurisdiction. In the said decision the Court for academic point of view observed that alteration of allowance can be made from the date of order and not from the date of application. In the decision of this Court in the case of DAXABEN VS. NILESHKUMAR (supra) the Court ruled that when maintenance is granted from the date of order reasons must be stated for rejection of part of the claim from the date of application and absence of reasons in the order justified the High Court to exercise revisional powers. It appears from the impugned order that learned Additional Sessions Judge while confirming the order of enhancement of amount of maintenance passed by the trial Court concurred with the findings recorded but disallowed the claim for maintenance from the date of application. Learned Additional Sessions Judge did not assign any reason for disallowing the claim from the date of application. It is settled proposition that the proceedings under Section 125 of the Code are for the benefit of neglected wife and child. Therefore, the Court is required to take liberal approach while awarding amount of maintenance or enhancement of the maintenance. As observed earlier, learned Additional Sessions Judge did not assign any reason for refusing to allow the claim from the date of application and simply relying on the decision of Rajasthan High Court awarded the amount of enhanced maintenance from the date of order. In view of the binding decision of this Court, in my view, the impugned order is required to be set aside.
7 Learned advocate Mr. Nadia also relied on the decision of Andhra Pradesh High Court in the case of PILLI VENKANNA VS. PILLI NOOKALAMMA (supra). The said decision is also referred to in the impugned order. However, the said decision does not render any assistance to respondent No. 1.
8 In view of above, learned Additional Sessions Judge committed serious error in awarding the amount of enhanced maintenance to the petitioners from the date of order and refusing to grant enhanced maintenance from the date of application without assigning any reasons. Therefore, the impugned order is required to be set aside.
9 In the result, this Revision Application succeeds and the order passed by learned Presiding Officer and Additional Sessions Judge, Fast Track Court No. 4, Gandhinagar at Kalol on 15.10.2005 in Criminal Revision Application No. 78 of 2005 is set aside and the order passed by learned Principal Judicial Magistrate First Class at Kalol Dist. Gandhinagar in Criminal Miscellaneous Application No. 226 of 2003 is restored. Rule is made absolute.
(BANKIM N. MEHTA, J) (pkn)