Harbans Singh vs Paramjit Kaur alias Bhoondi

Harmohinder Kaur Sandhu, J.

Harbans Singh has filed this petition under Section 482 of the Code of Criminal Procedure for the modification of the order dated May 14, 1929 passed by Additional District Judge, Faridkot and order September 4, 1990 passed by Judicial Magistrate Ist Class, Faridkot Annexure P1 and P2 respectively.

Paramjit Kaur filed an application for grant of maintenance under Section 125 of the Code of Criminal Procedure against her husband Harbans Singh. She was allowed maintenance amount of Rs. 125/ per month vide order dated October 26, 1983. She then moved an application for enhancement of the maintenance allowance under Section 127 of the Code, alleging that it was difficult for her to make her both ends meet with a meagre amount of Rs. 125/ per month on account of increase in the prices of the commodities. The claim of wife was resisted by the husband but her application was allowed and the amount of maintenance was enhanced from Rs. 125/ per month to Rs. 400/ per month from the date of the application.

Against the order whereby the amount of maintenance was enhanced both the parties filed Revision Petitions. The learned Additional District Judge Faridkot found that the order of the trial Court was quite legal and thus dismissed both the petitions.

In the present petition Harbans Singh has not assailed the enhancement of the amount but he simply contended that the amount of maintenance should not have been enhanced from the date of the application. Even in the Revision Petition he had taken this plea that application of the wife may be allowed from the date of the order and not from the date of filing of the application but this plea was not accepted.

I have heard the counsel for the parties.

The petitioner has not assailed the findings of the courts below regarding enhancement of maintenance amount from Rs. 125/ per month to Rs. 400/ per month but the learned Counsel for the petitioner contended that the wife who claimed enhancement in the maintenance allowance had not established any circumstance to claim the amount with retrospective effect, nor the courts below had recorded any reasons for making the order operative from the date of the application, more so when in the revision claim of the wife for enhanced maintenance from the date of application was specifically assailed. It was urged that even under Section 125 of the Code of Criminal Procedure where the Court has the discretion to order payment of the maintenance, allowance from the date of the order or from the date of the application for maintenance reasons are required to be recorded but under Section 127 of the Code of Criminal Procedure no date is specified from which the order is to take effect. So special circumstances were required to be shown for claiming enhanced amount from the date of the application. In support of his contention learned Counsel placed reliance on the case of Krishma v. Dharam Raj, 1991(3) Recent Criminal Reports 145 . In this case while dealing with the question whether it is essential to record reasons if the allowance is made payable from the date of the application which implies reason need not be recorded if the same is allowed from the date of the order. It was observed :

"In our opinion, reasons have to be recorded in both the situations Section 354(6) of the Code provides that every final order under Section 125 and certain other Sections, shall contain points for determination, the decisions thereon and the reasons for the decisions. In a petition under Section 125, the last point for determination is the date from which the maintenance ought to be granted. This depends on the pleadings in the case. The wife may claim the allowance from the date of application and the husband may deny it. In such a case the question has to be framed and decision on it has to be supported by reasons based on evidence led by both the parties in support of their claims. Yet, in other case the husband may omit to deny the wife''s claim from the date of application. In such cases, the question may be answered in wife''s favour, on the short ground that there is no denial in the written statement and this may satisfy the requirement of Section 354(6)."

Section 127 of the Code of Criminal Procedure provided that on proof of a change in the circumstances of any person receiving under Section 125 a monthly allowance or ordered under the same Section to pay a monthly allowance to his wife child father or mother as the case may be, the Magistrate may make such alteration in the allowance as he thinks fit. But this provision does not specify any date from which enhancement of the amount could be made. So, if retrospective effect is to be given, then the wife is required to show the existence of some special circumstances which are lacking in the present case. In the case of Bhagat Singh v. Parkash Kaur and others, 1972 Punjab Law Reporter 953 it was observed that the Magistrate had jurisdiction to make enhancement in the main enhance allowance effective from the date when it was asked for but an order of that type should ordinarily be effective only from its date and the existence of special circumstances must be established if retrospective effect is to be given to it.

In the instant case no special circumstances has been brought to my notice justify the enhancement of maintenance allowance from the date of the application more so when the evidence establishing any change in the circumstances was recorded in the year 1990. I am, therefore, of the view that retrospectively effect should not have been given to the order allowing enhancement of maintenance allowance.

As a result I allow that this petition and order that the enhancement of the maintenance amount shall take effect from the date of order Annexure P2 i.e. September 5, 1990.