REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 4666 OF 2008
ARISING OUT OF
SPECIAL LEAVE PETITION (CIVIL) NO.17260 OF 2007
SHAIL KUMARI DEVI & ANR. ... APPELLANTS
VERSUS
KRISHAN BHAGWAN PATHAK @
KISHUN B. PATHAK ...
RESPONDENT
J U D G M E N T
C.K. THAKKER, J.
1. Leave granted.
2. The present appeal is filed by
appellant No.1-wife and appellant No.2-daughter
of respondent herein-Krishan Bhagwan Pathak.
The appellants have approached this Court being
aggrieved by the judgment and order passed by
the High Court of Judicature at Patna on May 3,
2
2007 in Criminal Revision No. 67 of 2007. By
the said order, the High Court partly allowed
the revision filed by the respondent-husband
and modified the order passed by the Court of
Principal Judge, Family Court, Bhojpur on
October 30, 2006 in Miscellaneous Case No. 280
of 1997, renumbered as No.1 of 2005.
3. Shortly stated the facts of the case
are that the marriage between appellant No.1
and the respondent was solemnized according to
Hindu rites, customs and ceremonies before more
than three decades. From the said wedlock, nine
children were born. Appellant No.2-Kumari Babli
is the youngest among all and she is the only
child staying with her mother-appellant No.1.
At the time of filing of the application, she
was of twelve years.
4. On July 21, 1997, the appellants filed
a case for maintenance in the Court of Chief
Judicial Magistrate, Bhojpur under Section 125
of the Code of Criminal Procedure, 1973
(hereinafter referred to as `the Code') (Misc.
3
Case No. 280 of 1997) claiming maintenance of
Rs.500/- p.m. for appellant No.1 and Rs.500/-
p.m. for appellant No.2. It was the case of the
appellant No.1 that her husband had neglected
to maintain his wife-appellant No.1 as also his
legitimate daughter-appellant No.2. On November
20, 1999, an application was filed by the
appellants requesting the Court to grant
`interim' maintenance during the pendency of
proceedings before the Court. The learned Chief
Judicial Magistrate allowed the said
application, granted the prayer and fixed
interim maintenance at the rate of Rs.300/-
p.m. for each of the applicants with effect
from February 12, 1998. The parties,
thereafter, led the evidence which was closed
on September 3, 2001 and the case was adjourned
for final arguments. During the pendency of
proceedings, however, Family Court came to be
established and the case was transferred to the
Principal Judge, Family Court, Bhojpur.
4
5. From the evidence, it was clear that
the respondent was working as Cashier with the
State Bank of India, Bihita Branch and was
getting gross salary of Rs.18,508-98. After
deduction, his pay packet was of Rs.9,831-76.
The respondent retired from service in January,
2006. The appellants filed a petition on
September 12, 2006 with a prayer to direct the
respondent to pay arrears of maintenance which
came to Rs.11,600/- and the Family Court on
October 30, 2006, allowed the application and
directed the respondent to pay the entire
amount of the arrears in lump sum by the next
date of hearing.
6. The matter was finally disposed of by
the Family Court on November 29, 2006 and the
learned Principal Judge of the Family Court
directed the respondent to pay maintenance of
Rs.2,000/- p.m. to applicant-appellant No.1-
wife and Rs.1,000/- p.m. to applicant-appellant
No.2-minor daughter with effect from the date
of application i.e. July 21, 1997 with further
5
order to pay arrears within three months of the
order after deducting the amount which had
already been paid under the interim order
passed by the Court earlier.
7. The appellant was dissatisfied with
the order passed by the Principal Judge of the
Family Court and preferred Criminal Revision
No. 67 of 2007 in the High Court.
8. The High Court partly allowed the
Revision and modified the direction issued by
the Family Court. The High Court reduced the
amount of maintenance from Rs.2,000/- to
Rs.750/- to appellant No.1-wife and from
Rs.1,000/- to Rs.750/- to appellant No.2-
daughter. The High Court also directed that the
amount of maintenance would be payable to the
applicants-appellants not from the date of the
application i.e. July 21, 1997 but from the
date of the order i.e. November 29, 2006. The
said order is challenged by the appellants in
the present appeal.
6
9. On September 5, 2007, the matter was
placed for admission hearing. Delay of eight
days in filing Special Leave Petition was
condoned and notice was issued to the
respondent. Considering the nature of the
litigation, the Registry was directed by an
order dated April 16, 2008 to place the matter
for final disposal on a non-miscellaneous day
and that is how the matter is placed before us.
10. We have heard learned counsel for the
parties.
11. Learned counsel for the appellants
contended that the High Court was wrong in
partly allowing Revision filed by the
respondent and in modifying the directions
issued by the Family Court. It was submitted
that the High Court was in clear error in
reducing the amount of maintenance to appellant
No.1-wife and appellant No.2-daughter.
Similarly, the High Court was in error in
holding that the appellants were not entitled
to maintenance from the date of application but
7
only from the date of order passed by the
Court. It was, therefore, submitted that the
order passed by the High Court deserves to be
set aside by restoring the order of the Family
Court.
12. The learned counsel for the
respondent, on the other hand, supported the
order passed by the High Court. It was urged
that the Family Court was not right in granting
maintenance to the appellants from the date of
application. It was submitted that the Family
Court was again wrong in allowing maintenance
of more than Rs.500/- either to appellant No.1-
wife or to appellant No.2-daughter before 2001
when the relevant provisions of law (Section
125 of the Code as it then stood), allowed
Rs.500/- p.m. as maximum amount of maintenance.
The High Court was, therefore, justified in
reducing the amount as also issuing direction
to make payment from the date of the order. It
was also urged that no `interim' maintenance
8
could have been awarded before the amendment in
the Code in 2001.
13. The counsel submitted that even on
merits, the Family Court was not justified in
ignoring the evidence on record and in granting
maintenance to wife observing that appellant
No.1 was unable to maintain herself. The
evidence clearly revealed, submitted the
counsel, that some of the properties of the
respondent-husband were with the appellant
No.1-wife. She has also inherited land from her
father. Those facts, therefore, ought to have
been taken into account by the Family Court in
fixing the amount of compensation. On all these
grounds, it was submitted that no interference
in the order passed by the High Court is called
for in exercise of discretionary jurisdiction
under Article 136 of the Constitution and the
appeal deserves to be dismissed.
14. Three questions arise for our
consideration; (i) whether interim maintenance
could be awarded in absence of specific and
9
express provision in the Code; (ii) whether the
applicant-wife and her daughter are entitled to
maintenance from the date of the order passed
by the Family Court or from the date of
application made by them under Section 125 of
the Code; and (iii) what could be the amount of
maintenance which could be awarded by the
Court.
15. Before we proceed to consider these
questions, it would be appropriate if we
examine the relevant provisions of law. Sub-
sections (1) and (2) of Section 125 of the
Code, as they were originally enacted in 1973,
read thus:
125.Order for maintenance of wives,
children and parents.- (1) If any
person having sufficient means
neglects or refuses to maintain-
(a) his wife, unable to maintain
herself, or
(b) his legitimate or illegitimate
minor child, whether married or not,
unable to maintain itself, or
(c) his legitimate or illegitimate
child (not being a married daughter)
who has attained majority, where such
1
child is by reason of any physical or
mental abnormality or injury unable to
maintain itself, or
(d) his father or mother, unable to
maintain himself or herself,
a Magistrate of the 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, father or mother,
at such monthly rate not exceeding
five hundred rupees in the whole, as
such Magistrate thinks fit, and to pay
the same to such person as the
Magistrate may from time to time
direct:
Provided that the Magistrate may order
the father of a minor female child
referred to in clause (b) to make such
allowance, until she attains her
majority, if the Magistrate is
satisfied that the husband of such
minor female child, if married, is not
possessed of sufficient means.
Explanation.- For the purposes of this
Chapter, -
(a) "minor" means a person who, under
the provisions of the Indian Majority
Act, 1875( 9 of 1875) is deemed not to
have attained his majority;
(b) "wife" includes a woman who has
been divorced by, or has obtained a
divorce from, her husband and has not
remarried.
(2) Such allowance shall be payable
1
from the date of the order, or, if so
ordered, from the date of the
application for maintenance.
(emphasis supplied)
16. Bare reading of sub-section (1) of
Section 125 leaves no room for doubt that if
any person having sufficient means, neglects or
refuses to maintain his wife who is unable to
maintain herself or his legitimate (or
illegitimate) child (children) unable to
maintain itself (themselves), or his father, or
mother, unable to maintain himself or herself,
a Court, upon proof of negligence or refusal,
order such person to pay maintenance to his
wife or child (children) or parents, as the
case may be. It is also clear that maximum
amount which could be ordered to be paid was
Rs.500/- p.m. which was clear from the
expression "not exceeding Rs.500/- in the
whole".
17. It is further clear that under sub-
section (2), such maintenance can be made
1
payable "from the date of order" or "if so
ordered, from the date of the application for
maintenance".
18. By the Code of Criminal Procedure
(Amendment) Act, 2001 (Act 50 of 2001), sub-
sections (1) and (2) came to be amended with
effect from September 24, 2001. The amended
sub-sections now read thus:
125.Order for maintenance of wives,
children and parents.- (1) If any
person having sufficient means
neglects or refuses to maintain-
(a) his wife, unable to maintain
herself, or
(b) his legitimate or illegitimate
minor child, whether married or not,
unable to maintain itself, or
(c) his legitimate or illegitimate
child (not being a married daughter)
who has attained majority, where such
child is by reason of any physical or
mental abnormality or injury unable to
maintain itself, or
(d) his father or mother, unable to
maintain himself or herself,
a Magistrate of the first class may,
upon proof of such neglect or refusal,
order such person to make a monthly
allowance for the maintenance of his
1
wife or such child, father or mother,
at such monthly rate, as such
Magistrate thinks fit, and to pay the
same to such person as the Magistrate
may from time to time direct:
Provided that the Magistrate may order
the father of a minor female child
referred to in clause (b) to make such
allowance, until she attains her
majority, if the Magistrate is
satisfied that the husband of such
minor female child, if married, is not
possessed of sufficient means.
Provided further that the Magistrate
may, during the pungency of the
proceeding regarding monthly allowance
for the maintenance under this sub-
section, order such person to make a
monthly allowance for the interim
maintenance of his wife or such child,
father or mother, and the expenses of
such proceeding which the Magistrate
considers reasonable, and to pay the
same to such person as the Magistrate
may from time to time direct:
Provided also that an application for
the monthly allowance for the interim
maintenance and expenses of proceeding
under the second proviso shall, as far
as possible, be disposed of within
sixty days from the date of the
service of notice of the application
to such person.
Explanation.- For the purposes of this
Chapter, -
(a) "minor" means a person who, under
the provisions of the Indian Majority
1
Act, 1875( 9 of 1875) is deemed not to
have attained his majority;
(b) "wife" includes a woman who has
been divorced by, or has obtained a
divorce from, her husband and has not
remarried.
(2) Any such allowance for the
maintenance or interim maintenance and
expenses of proceeding shall be
payable from the date of the order,
or, if so ordered, from the date of
the application for maintenance or
interim maintenance and expenses of
proceeding, as the case may be.
(emphasis
supplied)
19. It is apparent that the ceiling which
was fixed under the original enactment of 1973
of Rs.500/- p.m. has been removed and now it is
open to a Court under the amended law to fix
such amount as it `thinks fit'.
20. Again, there is no substantial change
so far as the date of payment is concerned.
Under sub-section (2) as originally enacted, it
was provided that such maintenance could be
made payable from the date of the order or if
so ordered, from the date of application. Even
1
after the amendment of 2001, an order for
payment of maintenance can be made by a Court
either from the date of the order or where an
express order is made to pay maintenance from
the date of application, then the amount of
maintenance can be paid from that date, i.e.
from the date of application.
21. So far as `interim' maintenance is
concerned, it is true that Section 125 of the
Code as it originally enacted did not expressly
empower the Magistrate to make such order and
direct payment of interim maintenance. But the
Code equally did not prohibit the Magistrate
from making such order. Now, having regard to
the nature of proceedings, the primary object
to secure relief to deserted and destitute
wives, discarded and neglected children and
disabled and helpless parents and to ensure
that no wife, child or parent is left beggared
and destitute on the scrap-heap of society so
as to be tempted to commit crime or to tempt
others to commit crime in regard to them, it
1
was held that the Magistrate had `implied
power' to make such order. The jurisdiction of
the Magistrate under Chapter IX (Order for
Maintenance of Wives, Children and Parents) is
not strictly criminal in nature. Moreover, the
remedy provided by Section 125 of the Code is a
summary remedy for securing reasonable sum by
way of maintenance subject to a decree passed
by a competent civil Court. Hence, in absence
of any express bar or prohibition, Section 125
could be interpreted as conferring power by
necessary implication to make interim order of
maintenance subject to final outcome in the
application.
22. A direct question came up for
consideration before this Court in Savitri v.
Govind Singh Rawat, (1985) 4 SCC 337 : 1986
CriLJ 41. The Court considered that though
there was no specific provision for grant of
interim maintenance, considering the object
underlying the provision and social purpose
1
behind the legislation, such a power must be
conceded to the Court.
23. Speaking for the Court,
Venkataramaiah, J. (as His Lordship then was)
observed;
"It is true that there is no express
provision in the Code which authorises
a magistrate to make an interim order
directing payment of maintenance
pending disposal of an application for
maintenance. The Code does not also
expressly prohibit the making of such
an order. The question is whether such
a power can be implied to be vested in
a magistrate having regard to the
nature of the proceedings under
Section 125 and other cognate
provisions found in Chapter IX of the
Code which is entitled "Order For
Maintenance of Wives, Children and
Parents". Section 125 of the Code
confers power on a magistrate of the
first class to direct a person having
sufficient means but who neglects or
refuses to maintain (i) his wife,
unable to maintain herself, or (ii)
his legitimate or illegitimate minor
child, whether married or not, unable
to maintain itself, or (iii) his
legitimate or illegitimate child (not
being a married daughter) who has
attained majority, where such child
is, by reason of any physical or
mental abnormality or injury unable to
maintain itself or (iv) his father or
mother, unable to maintain himself or
herself, upon proof of such neglect or
1
refusal, to pay a monthly allowance
for the maintenance of his wife or
such child, father or mother, as the
case may be, at such monthly rate not
exceeding five hundred rupees in the
whole as such magistrate thinks fit.
Such allowance shall be payable from
the date of the order, or, if so
ordered from the date of the
application for maintenance".
24. Interpreting the relevant provisions
of the Code, putting emphasis on the duty of a
person liable to pay maintenance and applying
the principle of `social justice', His Lordship
proceeded to state;
"In view of the foregoing it is
the duty of the court to interpret
the provisions in Chapter IX of the
Code in such a way that the
construction placed on them would not
defeat the very object of the
legislation. In the absence of any
express prohibition, it is
appropriate to construe the
provisions in Chapter IX as
conferring an implied power on the
magistrate to direct the person
against whom an application is made
under Section 125 of the Code to pay
some reasonable sum by way of
maintenance to the applicant pending
final disposal of the application. It
is quite common that applications
1
made under Section 125 of the Code
also take several months for being
disposed of finally. In order to
enjoy the fruits of the proceedings
under Section 125, the applicant
should be alive till the date of the
final order and that the applicant
can do in a large number of cases
only if an order for payment of
interim maintenance is passed by the
court. Every court must be deemed to
possess by necessary intendment all
such powers as are necessary to make
its orders effective. This principle
is embodied in the maxim ubi aliquid
conceditur, conceditur et id sine quo
res ipsa esse non potest (Where
anything is conceded, there is
conceded also anything without which
the thing itself cannot exist.) (Vide
Earl Jowitt's Dictionary of English
Law 1959 Edn. P. 1797). Whenever
anything is required to be done by
law and it is found impossible to do
that thing unless something not
authorised in express terms be also
done then that something else will be
supplied by necessary intendment.
Such a construction though it may not
always be admissible in the present
case however would advance the object
of the legislation under
consideration. A contrary view is
likely to result in grave hardship to
the applicant, who may have no means
to subsist until the final order is
passed. There is no room for the
apprehension that the recognition of
such implied power would lead to the
passing of interim orders in a large
number of cases where the liability
to pay maintenance may not exist. It
is quite possible that such
2
contingency may arise in a few cases
but the prejudice caused thereby to
the person against whom it is made is
minimal as it can be set right
quickly after hearing both the
parties. The magistrate, may,
however, insist upon an affidavit
being filed by or on behalf of the
applicant concerned stating the
grounds in support of the claim for
interim maintenance to satisfy
himself that there is a prima facie
case for making such an order. Such
an order may also be made in an
appropriate case ex parte pending
service of notice of the application
subject to any modification or even
an order of cancellation that may be
passed after the respondent is heard.
If a civil court can pass such
interim orders on affidavits, there
is no reason why a magistrate should
not rely on them for the purpose of
issuing directions regarding payment
of interim maintenance. The affidavit
may be treated as supplying prima
facie proof of the case of the
applicant. If the allegations in the
application or the affidavit are not
true, it is always open to the person
against whom such an order is made to
show that the order is unsustainable.
Having regard to the nature of the
jurisdiction exercised by a
magistrate under Section 125 of the
Code, we feel that the said provision
should be interpreted as conferring
power by necessary implication on the
magistrate to pass an order directing
a person against whom an application
is made under it to pay a reasonable
sum by way of interim maintenance
2
subject to the other conditions
referred to there pending final
disposal of the application".
(emphasis supplied)
25. Parliament considered the object of
the legislation, the decision of this Court in
Savitri and the fact that though the remedy is
of a summary nature, the applicant who is
unable to maintain herself may have to wait for
`several years' for getting such relief. It,
therefore, amended the provision expressly
authorizing the Magistrate to grant interim
maintenance.
26. In the Statement of Objects and
Reasons, it was stated;
"It has been observed that an
applicant, after filing application in
a Court under Section 125 of the Code
of Criminal Procedure, 1973, has to
wait for several years for getting
relief from the Court. It is,
therefore, felt that express
provisions should be made in the said
Code for interim maintenance allowance
to the aggrieved person under said
Section 125 of the Code. Accordingly,
it is proposed that during the
pendency of the proceedings, the
2
Magistrate may order payment of
interim maintenance allowance and such
expenses of the proceedings as the
Magistrate considers reasonable, to
the aggrieved person. It is also
proposed that the order be made
ordinarily within sixty days from the
date of the service of the notice".
27. In view of the decision of this Court
in Savitri, in our opinion, the learned
Magistrate was right and wholly justified in
ordering interim maintenance by an order dated
November 20, 1998. We see no infirmity in that
part of the order and hold that interim
maintenance could have been granted by the
learned Magistrate even before the amendment of
Section 125 in 2001.
28. Regarding date from which such amount
should be paid to the appellants, the Family
Court held that the appellants would be
entitled to claim maintenance from the date of
application i.e. July 21, 1997.
29. The Family Court stated;
"This order will be effective from
the date of application i.e.
21.7.1997. The opposite party is
2
directed to pay the arrears within
three months of this order and shall
pay the current monthly amount of
maintenance by 15th of every
succeeding months."
(emphasis supplied)
30. The Family Court thus exercised the
power under sub-section (2) of Section 125
which enables the Court to make an order
whether the applicant would be entitled to
maintenance from the date of the order or from
the date of the application. The Family Court
ordered payment of maintenance from the date of
application.
31. The High Court, however, set aside
that part of the order of the Family Court. It,
inter alia, observed;
"On a consideration of the aforesaid
arguments of the parties, this Court
finds that the court below has not
considered the present matter in a
proper manner and keeping in view the
purpose of the provisions of Section
125 of the Code. As held in a catena
of decisions, the purpose of the said
provision is to prevent vagrancy and
destitution and essentially to
financially support the deserted wife
or other to say that her own son has
grabbed the property and that she will
2
sit back and will take no steps in the
matter. As a matter of fact, under
Section 125 of the Code of Criminal
Procedure itself, it is the duty of
the son to maintain his father and
mother, if they are unable to maintain
themselves; whereas the court has not
even considered the said fact. When
the petitioner has raised the issue
that the opposite party has income
from the land and house of her
matrimonial village, the same ought
not to have been ignored by the Court
in the manner, which has been done. It
raises the strong suspicion that the
Court below had made up its mind to
disbelieve everything that was stated
on behalf of the petitioner and
believe the contention of the opposite
party, which is not the correct way of
looking at the evidence that comes in
course of the said proceedings. It is
for the court, in such matter, to
consider the probability of the facts
and then to come to a fair conclusion
as to what is the real state of
affairs. From the impugned order, it
does not appear that any such attempt
has been made by the Court below and
even the important admission made by
the opposite party No.1 has been lost
sight of by the Court below.
In the aforesaid view of the matter,
this Court does not find that the Court
below has rightly looked into the aspect
of the matter. The Court below has also
not considered as to what was the
justification for passing an order for
maintenance from the date of
application, which goes back to more
than 9 years from the date of the order.
2
As laid down in the decision of this
Court such an order may be necessitated
if the party shows the dire need of
money for the purpose of maintaining
herself, for which she had to raise
debts, during the period when the
application had been pending. There is
no such material on the record, rather
the opposite party was getting interim
maintenance from November, 1998 itself
by order dated 20.11.1998 although as a
matter of fact the provision for interim
maintenance has been brought into
existence for the first time by the
Amendment Act, 2001 with effect from
24.9.2001. However, since the said order
is not under challenge, therefore, this
Court would not like to go into that
issue any further. In any case, it is a
relevant fact that right from 1998,
opposite party Nos. 1 and 2, have been
paid interim maintenance, by which they
had managed to sustain themselves during
that period and thus there is no reason
for passing the order to pay maintenance
with effect from the date of application
going back more than 9 years from the
date of passing of the said order."
(emphasis supplied)
32. The above observations manifestly show
that according to the High Court, there must be
justification on the part of the Court in
making the order of maintenance from the date
of the application rather than from the date of
the order. As there was no such reason granting
2
maintenance from the date of the application,
the Family Court was not justified in doing so.
To that extent, therefore, the order passed by
the Family Court was vulnerable and
accordingly, it was set aside by granting
maintenance from the date of the order passed
by the Family Court.
33. Now, no direct decision of this Court
is available on the point as to from which date
a Magistrate may order payment of maintenance
to wife, children or parents. We may, however,
refer to decisions of some High Courts.
34. It seems that there is a cleavage of
opinion on the question. According to one view,
since sub-section (2) of Section 125 declares
that maintenance shall be payable "from the
date of the order", or, "if so ordered, from
the date of application for maintenance",
normal rule is that a Magistrate should pass an
order directing payment of maintenance only
from the date of the order. If he decides to
deviate that course and makes an order granting
2
maintenance not from the date of the order but
from the date of application for maintenance,
he must record reasons in support of such order
[vide Mohd. Inaytullah Khan v. Salma Bano,
1983 Jab LJ 55, Rameshwar v. Ramibai, 1987
CrLJ 1952 (MP), Lachhmani v. Ramu, (1983) 1
Crimes 590 MP, Qamruddin v. Smt. Rashida,
(1992) 1 WLC 305 (Raj), Shyamlal v. Mansha
Bai, 1998 CrLJ 2704 (Raj), Mohd. Ismail v.
Bilquees Bano, 1998 CrLJ 2803 (All), Nitha
Ranjan Chakraborty v. Smt. Kalpana
Chakraborty, 2002 CrLJ 4768 (Cal), Samaydin v.
State of U.P. & Anr., 2001 CrLJ 2064 (All)].
35. The High Court, in the impugned order,
also referred to a decision in Bijay Kapri v.
Smt. Kanishta Devi & Anr., (2000) 2 PLJR 241,
wherein it was held that such order could be
necessitated if the party shows `dire need' of
the money for the purpose of maintaining
herself for which she had raised debts during
the period when the application had been
pending. No such material had been brought on
2
record. Rather, the applicants were getting
interim maintenance from November, 1998 by an
order passed by the Magistrate though such
provision of interim maintenance had been
brought in the statute book for the first time
by the Amendment Act, 2001 with effect from
September 24, 2001.
36. In Samaydin, the High Court of
Allahabad observed that there may not be a
discussion of such circumstances which
warranted the Court to allow it to grant
maintenance from the date of application. But,
no other inference is permissible in the light
of the language of sub-section (2) of Section
125. The Court, by way of illustrative cases
considered certain situations, such as,
`dilatory tactics adopted by the husband in the
disposal of the proceeding', `untold cruelty
practised against wife', etc. In absence of
special circumstances, however, maintenance
cannot be ordered from the date of application.
2
37. Some other High Courts, have taken a
contrary view. It was held that normally,
maintenance should be granted from the date of
the application and not from the date of the
order. If the Magistrate is inclined to make
an order granting maintenance from the date of
the order and not from the date of application,
he should record reasons to do so.
38. In Gnanaselvi & Ors. v. Illavarasan,
(1999) 1 Crimes 22 (Mad), the High Court of
Madras observed that when the wife approaches a
Court claiming maintenance by filing
application on the ground that she is not able
to maintain herself, it is for her to prove
such inability from the date of application.
Hence, when the Court ultimately decides after
conducting the inquiry that she is entitled to
maintenance, the said decision must necessarily
be based upon the material showing that the
wife was unable to maintain herself when she
filed an application. As a general rule,
therefore, the Magistrate should pass an order
3
directing maintenance from the date of
application. It was also observed that the
remedy is a speedy remedy and summary procedure
is provided by the statute. Despite this,
usually, in such proceedings, the Court notices
that the husband does not allow the proceedings
to go on by raising one objection or the other.
The Court is required to deal with all such
objections, which takes time. Again, even after
the order is passed, the husband rushes to the
higher forum and challenges it. Sometimes, he
obtains interim orders which results in further
delay. The deserted wife and children are the
sufferers who seek shelter of the protective
umbrella provided by Section 125 of the Code.
If maintenance is not granted from the date of
application, the weaker sections are sure to
lose confidence in the justice delivery system.
The Court noted the deep concern expressed by
this Court in P.N. Duda v. P. Shiv Shankar,
(1988) 3 SCC 167 that "justice cries in silence
for long, far too long".
3
39. In Amarjit Kaur v. Sartaz Zingh, 1996
CriLJ 4476 (P&H), the High Court of Punjab &
Haryana held that sub-section (2) of Section
125 does not require the Magistrate to record
special reasons for granting maintenance from
the date of application. What it says is that
if the order is silent as to the date from
which such maintenance is payable, it has to be
paid from the date of the order. Where,
however, the maintenance is to be paid from the
date of the application itself, then there
should be a specific order in that behalf by
the Court. There is nothing in the statutory
provision to hold that the Magistrate must
record special reasons if he is to order that
maintenance shall be payable from the date of
application.
40. In Krishna Jain v. Dharam Raj Jain,
1992 CriLJ 1028 (MP), the Division Bench of
High Court of Madhya Pradesh considered the
ambit and scope of sub-section (2) of Section
125 in the light of other provisions of the
3
Code. It overruled Mohd. Inaytullah Khan,
Rameshwar and Lachhmani referred to above and
held that plain reading of sub-section (2) of
Section 125 makes it clear that allowance of
maintenance can be awarded from the date of
the order or from the date of the application.
To hold that, normally maintenance should be
made payable from the date of the order and not
from the date of the application unless such
order is backed by reasons would amount to
inserting something more in the sub-section
which the Legislature never intended. The Court
observed that it was unable to read in sub-
section (2) laying down any rule to award
maintenance from the date of the order or that
the grant from the date of the application is
an exception.
41. Regarding recording of reasons, the
Bench observed that in either case i.e. grant
of maintenance from the date of the order or
from the date of the application, the Court is
required to record reasons. The Court referred
3
to sub-section (6) of Section 354 of the Code
which reads thus:
(6) Every order under Section 117 or
sub-section (2) of Section 138 and
every final order made under Section
125, Section 145 or Section 147 shall
contain the point or points for
determination, the decision thereon
and the reasons for the decision.
(emphasis
supplied)
42. It was, therefore, observed that every
final order under Section 125 of the Code [and
other Sections referred to in sub section (c)
of Section 354] must contain points for
determination, the decision thereon and the
reasons for such decision.
43. Our attention was also invited to a
decision in K. Sivaram v. K. Mangalamba &
Ors., 1990 CrLJ 1880 (AP). In K. Sivaram, a
single Judge of the High Court of Andhra
Pradesh negatived the argument on behalf of the
husband that the maintenance could be awarded
from the date of the order and such maintenance
could be granted from the date of the
3
application only by recording special reasons.
The Court held that it is the discretion
conferred on the Court by the Code to award
maintenance either from the date of the order
or from the date of the petition as per the
circumstances of the case. The Code also noted
that wherever Parliament wanted special reasons
to be recorded for passing a particular order,
specific provision has been made to that effect
[See sub-section (3) of Section 167 of the Code
(default bail), Section 361 (refusal to grant
probation) etc].
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
3
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.
45. Moreover, duration of litigation is
not within the power or in the hands of the
applicant and entitlement to maintenance should
not be left to the uncertain date of disposal
of the case. Keeping in view this hard reality,
this Court in Savitri held that in absence of
prohibition to grant `interim' maintenance such
power could be read in the salutary provision
of Section 125 of the Code ensuring maintenance
to unable wife to maintain herself during the
pendency of proceedings. Even Parliament took
into account the reality and by the Amendment
Act, 2001 express provision has been made for
the purpose.
46. Again, maintenance is a right which
accrues to a wife against her husband the
minute the former gets married to the latter.
3
It is not only a moral obligation but is also a
legal duty cast upon the husband to maintain
his wife. Hence, whenever a wife does not stay
with her husband and claims maintenance, the
only question which the Court is called upon to
consider is whether she was justified to live
separately from her husband and still claim
maintenance from him? If the reply is in the
affirmative, she is entitled to claim
maintenance. It is, therefore, open to the
Magistrate to award maintenance from the date
of application and there is nothing which
requires recording of `special reasons' though
he must record reasons as envisaged by sub-
section (6) of Section 354 of the Code in
support of the order passed by him.
47. We, therefore, hold that while
deciding an application under Section 125 of
the code, a Magistrate is required to record
reasons for granting or refusing to grant
maintenance to wives, children or parents.
3
Such maintenance can be awarded from the date
of the order, or, if so ordered, from the date
of the application for maintenance, as the case
may be. For awarding maintenance from the date
of the application, express order is necessary.
No special reasons, however, are required to be
recorded by the Court. In our Judgment, no
such requirement can be read in sub section (l)
of Section 125 of the Code in absence of
express provision to that effect.
48. The last question relates to quantum
of amount of maintenance. The Family Court
granted maintenance to the appellants--wife as
well as daughter--at the rate of Rs.2000/- and
Rs. 1000/- respectively from the date of
application i.e. July 21, 1997. We have
reproduced the relevant part of Section 125 as
originally enacted and as amended by the
Amendment Act, 2001. Before the amendment of
2001, the ceiling was Rs.500/-. In our opinion,
therefore, the Family Court could not have
granted maintenance exceeding Rs.500/- p.m
3
either to appellant No.1 or appellant No.2 from
the date of application i.e. July 21, 1997. At
the most, such an order could have been made
effective from the date the Amendment Act, 2001
came into force. To that extent, therefore, the
order passed by the Family Court was not in
accordance with law.
49. But even on merits, the Family court
was not right in fixing the amount of
maintenance. The learned counsel for the
respondent took us to the evidence adduced by
the parties. From the material on record, it is
clear that the appellant No.1-wife is residing
in the house belonging to the respondent-
husband and such finding has been recorded even
by the Family Court. It is also in evidence
that she was receiving income from the land in
her possession which belonged to her husband-
respondent herein. It is true that the
respondent could not state as to the actual
amount received by the wife from the
cultivation of the land. But it is also one of
3
the considerations which is relevant and
material while fixing the amount of
maintenance. Moreover, appellant No.1 has
inherited some land from her father.
50. In view of overall facts and
circumstances, in our opinion, ends of justice
would be served if we hold that both the
appellants are entitled to an amount of
Rs.1000/- each per month as maintenance. As
already clarified, the appellants would be
entitled to the said amount of maintenance from
the date the Amendment Act, 2001 came into
force. i.e. September 24, 2001. So far as the
order of payment of `interim' maintenance
passed by the Magistrate is concerned, the same
was in consonance with law and no interference
is called for.
51. For the foregoing reasons, the appeal
deserves to be partly allowed and is
accordingly allowed to the extent indicated
above.
4
.........................................................J.
(C.K. THAKKER)
NEW DELHI, .........................................................J.
JULY 28, 2008. (D.K. JAIN)
