Amar Singh vs Satya Devi

Dr. Sarojnei Saksena, J.

Husbandpetitioner has filed this revision against the order of the Chief Judicial Magistrate, Faridkot, dated April 11, 1996, whereby he has enhanced the maintenance awarded to the respondents under section 127 of the Code of Criminal Procedure (in short, the Code) and has made it payable from the date of application. The respondents had filed the said application for enhancement of maintenance under Section 127 of the Code on March 19, 1994.

Respondent No. 1 is the wife and respondents 2 and 3 are the children of the petitioner. These respondents filed an application under section 125 of the Code for the grant of maintenance, which was allowed vide order dated January 13, 1986. The wife was granted maintenance at the rate of Rs. 160/ per month and the children were granted maintenance at the rate of Rs. 80/ per month each. The respondents filed an application under Section 127 of the Code, which was allowed on February 12, 1992. Her maintenance was enhanced to Rs. 250/ per month and for other respondents it was enhanced to Rs. 200/ per month each. The husband filed revision against that order in this Court. This Court reduced the maintenance of respondents 2 and 3 to Rs. 150/ per month each.

In their petition dated March 19, 1994, the respondents averred that they have no source of income; they are dependent on the amount of maintenance granted to them by the Court and now since the prices of essential articles as well as of books and other educational articles have gone very high as compared to the previous years, they claimed that their maintenance be enhanced. They claimed Rs. 3,000/ per month for the wife and Rs. 1500/ per month for children.

On being noticed the petitioner contested the said petition. The respondents led their evidence. They proved that since the order of award of maintenance, prices of commodities have increased to two/three folds; rent of the accommodation has also increased; respondents 2 and 3 are studying in 10 plus 2 and 10th class, expenses of their books, dress and food have also increased. The lower Court considered the evidence adduced by the parties and arrived at the conclusion that the prices of essential commodities have increased; children are studying in higher classes, they are also entitled to increase in their allowances. Thus, holding that there is a change in the circumstances of the respondents, justifying enhancement in the maintenance awarded to them earlier, the learned Chief Judicial Magistrate allowed their application and awarded Rs. 300/ per month to the wife and Rs. 200/ per month to each child from the date of the application.

Petitioner'' only grouse is that under Section 127 of the Code maintenance granted under section 125 of the Code can be enhanced only from the date of order. It cannot be awarded retrospectively because under section 127 of the Code, no such discretion is given to the Magistrate as it is given under section 125(2) of the Code to award maintenance either from the date of application or from the date of order. In support of this contention, he has relied on J.H. Amroon v. Miss R. Sassoon, AIR 1949 Calcutta 584; Harbans Singh v. Paramjit Kaur, 1993 MLJ 214; Joydeb Chakraborty v. Smt. Bharati Chakravarty, 1994(3) RCR 133 and unreported judgment of this Court in Major Singh v. Joginder Kaur, Crl. Misc. No. 12131M of 1992, decided on September 6, 1996.

The respondents'' learned counsel contended that there is no such bar that maintenance cannot be granted from the date of application. According to him, section 127 of the Code is virtually a proviso to section 125 of the Code. Whatever powers are to be exercised by a Magistrate under Section 125 of the Code are still exercisable by him while passing an order under section 127 of the Code.

So far as ''change in circumstances'' is concerned, in State v. Janakibai, AIR 1956 Bombay 432, it is held that if cost of living has gone up, it is also change in circumstances. In Maung Shweba v. Mathein Nya, 1939 Crl.L.J. 410, Rangoon High Court has considered that maintenance includes education of children. Advance age of child is a change in circumstances. In Chander Parkash Bodh Rai v. Smt. Shila Rani Chander Prakash, 1968 Crl.L.J. 1153 a Single Bench of Delhi High Court has held that maintenance can be varied with change in circumstances.

No doubt, in J.H. Amroon''s case (supra) a Single Bench has held that Magistrate can increase rate of allowance under section 489 (Cr.P.C. 1898) but he can only order increased payment from the date of order and not from the date of application for increase. The same view is reiterated by another Single Bench of Calcutta High in Joydeb Chakraborty''s case (supra). In this judgment Single Judge of Calcutta High Court has relied on J.H. Amroon''s case (supra)

In Harbans Singh''s case (supra) a Single Bench of this High Court has held that enhancement normally is from the date of order under section 127 of the Code and if it is to be allowed from other date special circumstances have to be enumerated. In the absence of such circumstances, retrospective effect should not be given to these orders.

To resolve this controversy, it is essential to consider the purpose of enacting these provisions. Section 125 is a provision to protect the weaker of the two parties, namely, the neglected wife and children.

In Bhagwan Dutt v. Smt. Kamla Devi and another, AIR 1975 SC 83 the Apex Court has considered the object of provisions of sections 488, 489 and 490 of the old Code and their Lordships observed that the object of these provisions being to prevent vagrancy and destitution, the Magistrate has to find out as to what is required by the wife to maintain a standard of living, which is neither luxurious nor penurious, but is modestly consistent with the status of the family. Keeping this object in view, the provision of Section 127 of the Code is to be construed.

In this case the respondents have pleaded in their petition under section 127 of the Code that the prices have gone high in geometrical figures; the children have started studying in higher classes; therefore, maintenance awarded to them earlier is not sufficient for their maintenance, hence it should be enhanced. They not only pleaded these facts but proved also. The learned Chief Judicial Magistrate has relied on the evidence adduced by the respondents and has returned a finding on the above facts in their favour. If such petitions are allowed to linger on in courts for years, the very purpose of awarding enhanced maintenance will be frustrated. In Raj Kumari v. Dev Raj, 1984 Crl.L.J. NOC 206 (Delhi), when petition for enhancement remained pending for six years due to judicial delays and the petitioner all along was clamouring for enhancement, it was ordered that the wife is entitled to enhancement from the date of application.

Following J.H. Amroon''s case (supra), A.S. Anand, J. (as his Lordship then was) in Bansi Lal v. Pushpa Devi, 1982 Crl.L.J. 1081, held that maintenance allowance can be altered only from the date of order and not from the date of application for alteration. No discretion is left to the Court under section 489 though available under section 488. The court cannot overstep jurisdiction on equitable ground. But other High Courts have taken a contrary view.

In Hiralal Valvadas v. Bai Amba, AIR 1926 Bombay 419 it is held by a Division Bench that a Magistrate has power to increase the rate of maintenance once awarded, and to direct that the increased rate of maintenance be paid from the date of application asking for the increase.

In Dr. T.K. Thayumanuvar v. Asanambal Ammal, AIR 1958 Mysore 190, S.K. Hegde, J. (as his Lordship then was), dissenting from J.H. Amroon''s case (supra) held that the appropriate way to consider section 489 of the Code is to read the same as a proviso to section 488(1). So read the other parts of section 488 will become applicable to the proceedings under section 489. A Magistrate has power to direct that the increased rate of maintenance ordered by him be paid from the date of the application asking for the increase. His Lordship further clarified that ordinarily an order of this type should be effective only from the date of the order. In order to give retrospective effect to it, there must be special circumstances.

In Parameswara Moothar v. Balameenakshi, Kerala High Court also had an occasion to consider this controversy. Kerala High Court also dissented from J.H. Amroon''s case (supra) and held:

"Under Section 489 an enhancement of the maintenance allowance can be made to take effect from the date of the application for enhancement instead of from the date of the order. Section 489 is only consequent on Section 488. Therefore, even if elaborate provisions are not made under that section on the same lines as under Section 488, it cannot be said that a Court acting under Section 489 has not all the powers it has under Section 488. The result is that if the Magistrate has power under Section 488 to award maintenance from the date of the application, he must have the same power to award increased allowance also from the date of the application for enhancement. But, there is a distinction between an order reducing the maintenance allowance and an order increasing the allowance. In the former case, the principle, that amounts already accrued cannot be retrospectively varied, has to be applied. In the other case i.e. of an enhancement of the allowance, there is no scope for the application of that principle. The magistrate is free to enhance the allowance either from the date of the application for enhancement or from the date of the order."

In the same vein, in Balraj Singh v. Balkar Singh, 1983(2) Crimes 284 a Single Bench of this Court has held that when order of maintenance is passed under section 125(2) of the Code, its cancellation order should operate prospectively and it cannot be passed retrospectively. It will take effect from the date of the order and not from the date of application for cancellation.

In Bhagat Singh v. Smt. Parkash Kaur and others, 1973 Crl.L.J. 719 a Single Bench of this Court, following Dr. T.K. Thayumanuvar''s case (supra) has held that a Magistrate is empowered to enhance the maintenance allowance from the date it is asked for by the petitioner and not only from the date of the order.

Madras High Court also considered these provisions in Kamatchi and another v. Veluchamy, 1997 Crl.L.J. 418. In this judgment also, the learned Judge has considered various judgments of Gauhati, Delhi, Allahabad, Mysore, Kerala and Punjab and Haryana High Courts. He has relied on the observations made in Raj Kumari''s case (supra), wherein it is observed :

"A social legislation for unprivileged who are neglected and foresaken, and who have no income of their own to support has to be liberally and beneficially construed. The effort should be to ensure that the purport of the legislation in real sense flows to them, and what is due to them is not as denied, delayed or defeated by technicalities, designs or motivation of the opposite side to thwart as long as possible, or the unfortunate delays which have come to stay in our system of administration of justice. In the present case the petitioner for enhancement though moved in August, 1977, could not bear result till August, 1983. Thus a period of six years was allowed to lapse. The course of conduct of the petitioner shows that she had been all through clamouring for higher maintenance. There is no reason why she should suffer in the very minimum maintenance payable for her living and upkeep for no fault of her own. To hold it otherwise, would be to provide a handle to any uncanny litigant to delay the proceedings as far as possible, and thus take advantage of his own wrong or bank upon the judicial delays. It would also stand in the way of consent orders. The proper approach to interpret Section 127 is to treat it as incidental provision to the main Section 125, and what is provided for in Section 125 is not taken away, unless specifically enjoined. I am, therefore, of the considered opinion that the petitioner is entitled to enhancement of maintenance from the date of the application in terms of what is stated in para 6 above."

Relying on these observations and also considering a plethora of judgments, a Single Bench of Madras High Court held that enhancement of maintenance under section 127 of the Code can be ordered to be payable from the date of application.

In Satinder Singh v. Baljit Kaur, 1995(3) RCR 112 a Single Bench of this Court also considered the same legal quibble and arrived at the conclusion that application for enhancement in maintenance allowance can be allowed from the date of application. As section 127 is silent on the point, principles of section 125(2) of the Code would apply.

When another Single Bench of this Court decided Major Singh''s case (supra) these judgments were not cited before it.

The provisions of sections 125(2) and 127 of the Code are not conflicting provisions in the Code. Section 125 lays down the foundation and its upper edifice is section 127. While laying down the foundation a discretion is given to the Magistrate to award maintenance either from the date of application or from the date of order. There is no reason to circumscribe the order of enhancement to be passed under Section 127 of the Code to the date of order only. The purpose of these provisions is to provide a living maintenance to the destitutes. Therefore, it stands to reason that when such a destitute is claiming enhancement in the maintenance already awarded to him/her, stating the changed circumstances on the basis of which the petitioner is claiming such an enhancement, it should be granted from the date of application if the petitioner is able to prove the change in circumstances. The change in circumstances is to be proved from the date of presentation of the petition. If the petitioner is claiming that today she needs more money for the education of her children, who have gone to higher classes or in view of the spiraling price index she needs more money to feed herself and her children, if after 2/3 years such a petition is allowed and she is granted enhanced maintenance from the date of order only, it will defeat the very purpose of these provisions.

These provisions are meant to provide maintenance to such persons so that they can live honourably, even though the bread earner is neglecting to maintain them. Hence it is rightly held in the judgments quoted above that the discretion/power enjoined upon a Magistrate under section 125(2) of the Code can still be exercised by him while passing an order under section 127 of the Code.

Thus, in my considered view, considering the facts not only averred but proved by the respondents in their petition filed under Section 127 of the Code, the learned Chief Judicial Magistrate has not fallen into any error in awarding enhanced maintenance from the date of petition. Revision petition is accordingly dismissed.