S.N. Phukan, J.@mdashThis revision petition has been filed against the order dated 31st December 1993 passed by the learned Additional Chief Judicial Magistrate, Shimla in case No. 32-4 of 1989.
2. The Petitioner herein filed a petition u/s 125 Code of Criminal Procedure for her maintenance. By the impugned order, the learned trial Court granted maintenance at the rate of Rs. 500/- per month from the date of the order in favour of the present Petitioner. While doing so, the learned trial Court has taken care of all aspects of the matter including the paying capacity of the Respondent. Therefore, the granting of maintenance at Rs. 500/- per month is justified and reasonable.
3. The short point to be decided in this case is that whether the maintenance should be awarded from the date of the filing of the application or from the date of the order. Sub-section (2) of Section 125 Code of Criminal Procedure inter-alia provides that such allowance shall be payable from the date of the order or if ordered from the date of the application for maintenance.
4. In the case in hand, the application u/s 125 Code of Criminal Procedure was filed on 1st May 1387 and the impugned order was passed on 31st December 1993 that is after about 6 years. No reason has been recorded by the learned trial Court as to why the maintenance could not be awarded from the date of the application that is 1st May 1987 keeping in view of the fact that the Respondent was in a position to pay the above maintenance of Rs. 500/- per month
5. Heard learned Counsel for the parties.
6. It is true that Sub-section (2) of Section 125 Code of Criminal Procedure gives discretion to the trial Court for fixing the date for payment of maintenance but it is settled law that such discretion cannot be exercised arbitrarily and reasons have to be recorded and that too after hearing both the parties. In the present case, the learned trial Court has failed to do so. Therefore, I upheld the payment of maintenance allowance at the rate of Rs. 500/- per month but direct that the matter shall go back to the trial Court to decide the point as to whether the maintenance shall be paid from the date of filing of the petition u/s 125 Code of Criminal Procedure or from the date of the order.
7. Before passing an appropriate order, the learned trial Court shall take into, consideration all the facts and circumstances of the case more particularly as to whether the delay was due to the fault of the Petitioner or the Respondent. In other words, the trial Court shall find out whether the Respondent was trying to delay the matter by praying for time and not filing written statement etc. The learned trial Court shall also take into consideration as to whether on the date of the filing of the petition u/s 125 Code of Criminal Procedure, the Respondent had the capacity to pay the maintenance allowance. The above factors are in addition to the other factors that the learned trial Court may consider while using his discretion. In the event the maintenance is granted from the date of institution of the petition u/s 125 Code of Criminal Procedure, the Court shall be at liberty to grant reasonable time and instalments to the Respondent to pay the arrears.
8. It is made clear that the trial Court shall not be influenced by any observation made in this order and shall decide the above point on the merit and after hearing the parties.
9. Both the parties shall appear before the learned trial Court on 13th March 1995. Thereafter the Court shall fix a date for hearing of the parties and shall pass appropriate orders by 24th April, 1995. With the above directions, this petition is disposed of.
