Balraj Singh vs Balkar Singh

S.S. Dewan, J.—A short question under S. 127 of the Code of Criminal Procedure, 1973 (for short, the Code) it raised in this petition under S. 482 of the Code. The question is ''whether an order of cancellation of the maintenance allowance can be made to take effect from the date of the application for cancellation or instead from the date of the order?''

The material facts of the case are within a short compass and may be briefly set out. Balkar Singh respondent is the son of Balraj Singh petitioner. He was allowed maintenance allowance under S. 488 of the Code of Criminal Procedure, 1898 in the year 1961 The amount of maintenance was enhanced to Rs. 100/- subsequently with effect from 14.11.1969 vide order dated 10.2.1977. The revision petition filed by Balraj Singh petitioner was dismissed by the learned Additional Sessions Judge, Barnala, on 16.12.1977. The petitioner then filed an application under S. 127 of the Code seeking cancellation of the maintenance order in favour of the respondent on the ground that the latter had become major. That application was, however, allowed by the Judicial Magistrate Ist Class, Barnala, on 22.12.1981 and it was directed that the order of maintenance shall stand cancelled only with effect from the date of the application. The revision petition against that order was dismissed by the Additional Sessions Judge, Sangrur, on 26.7.1982, agreeing with the view taken by the Magistrate. By means of the present petition, the orders of the two Courts below are sought to be quashed by invoking the provisions of S. 482 of the Code.

Mr. G.R. Majithia, learned counsel for the petitioner, has contended that the observations of the Courts below that the order of maintenance cannot be cancelled retrospectively is contrary to the mandatory provisions of S. 127 of the Code. To buttress his contention, reliance has been placed on a decision in Dhani Ram v. Parwati and another 1980 H.L.R. 249. It is needless to refer to the facts of that case because the ratio thereof is not at all applicable to the facts and circumstances of the present case.

In my opinion, the learned trial Court was right in cancelling the order of maintenance from the date of the order, S. 127 (2) of the Code enjoins that where after an order for maintenance passed in favour of the wife under S. 125 (2) of the Code, the husband obtains a decree necessitating the cancellation of the order, the Court shall cancel or vary the order. The legislature under S. 125 (2) of the Code has given power to the Magistrate to date back the order of the application but does not give any such power under S. 127 (2) of the Code. We cannot read a power into the Code which is not there. Support for this view may be had in a decision of the Calcutta High Court in J.H. Amroon v. Miss R. Sassoon AIR In the case in Sattevva v. Malsoor AIR 1954 Hyd. 53, also it is held that the order of cancellation of maintenance always operates prospectively and not retrospectively. Similar view is taken in cases Bhagat Singh v. Smt. Parkash Kaur and others (1972) 74 P.L.R. 952, and Ved Parkash v. Smt. Chanchal Kumari and others ( 1980) 82 P.L.R. 304.

With these observations, the orders of the Courts below are confirmed and the petition is dismissed.