Shobha Bai vs Radhey Shyam

The following order of the Court was passed by : K. M. Agarwal, J. -This case has come up before us on a reference made to the Hon''ble Chief Justice by brother K. K. Varma, J. The question posed in the reference is in the context of Section 125 (2) of the Code of Criminal Procedure, 1973 and is to be found in paragraph 16 of the order of reference. It is to the following effect:

......whether the legislature at the time intended to say that the Magistrate must record reasons to pass a valid grant of maintenance (on the merits) from the date of the filing of the application of maintenance. In other words, does the non-recording of reasons in the aforementioned situation has the effect of vitiating the direction (for the payment effective from the date of the application for maintenance) and making it bad in law on that account.

Briefly stated, the wife''s claim for maintenance u/s 125 Cr. P. C. was allowed by the Magistrate not from the date of order, but from the date of application for maintenance, without assigning any reason for the same. In revision by the husband, the order was modified by the Addl. Sessions Judge and the maintenance was made payable from the date of order in place of the date of application, as directed by the Magistrate. While doing so, the learned Additional Sessions Judge relied on certain decisions of this Court, referred to in the order of reference, which laid down that direction for payment of maintenance from the date of application required to be backed by reasons Being aggrieved, the wife preferred the present revision petition and claimed maintenance from the date of her application, as awarded by the Magistrate. It appears that during the course of hearing of this revision petition, a decision of the Supreme Court in Savitri Rawat Vs. Govind Singh Rawat, was cited before the learned Single Judge. It was held by the Supreme Court that even in the absence of specific provisions and in the absence of any express bar in the Code of Criminal Procedure, ''''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 u/s 125 of the Code to pay some reasonable sum by way of maintenance to the application pending final disposal of the application." It was further held that in appropriate cases, the Magistrate had powers to grant even ex-parte interim maintenance, pending service of notice of the application. Now in the light of this decision of the Supreme Court, it appears that brother K. K. Varma, J. doubted the correctness of the various decisions of this Court, referred to in the order of reference and made this reference to the Hon''ble Chief Justice by observing as follows in paragraph 16 of the reference :

......Thus, now it being the legislative intendment spelled out by the Supreme Court that a Magistrate has the power- -and also the duty in appropriate cases-to grant an interim maintenance, even an exparte interim maintenance, during the hearing of the main application for maintenance, one may ask whether the legislature at the time intended to say that the Magistrate must record reasons to pass a valid grant of maintenance (on merits) from the date of the filing of the application of maintenance, in other words, does the non-recording of reasons in the aforementioned situation has the effect of vitiating the direction (for Re-payment effective from the date of the application for maintenance) and making it bad in law on that account.''''

The learned counsel for the parties did not make any addition to the authorities mentioned in the order of reference;. After hearing them, we proceed to answer the question posed in the order of reference.

Section 125 (2) Cr. P. C reads as follows :

Such allowance shall be payable from the date of the order, or, if so ordered, from the date of the application for maintenance.

A plain reading of these provisions would show that :

(i) the maintenance is payable from the date of the order;

(ii) or, if so ordered, from the date of the application for maintenance.

(Emphasis supplied).

The words "if so ordered" used in Section 125 (2) Cr. P. C. are plain enough to lead one to the logical conclusion that maintenance from the date of application is not payable, unless so ordered by the Court. If there is no such

order, it shall be payable from the date of order. There is no indication in Chapter IX of the Code of Criminal Procedure as to in what cases maintenance from the date of the application may be ordered. In such a situation, the award of maintenance from retrospective date cannot be left to the simple wishes or whims and fancies of a Magistrate. Accordingly we are of the view that where maintenance is ordered from the date of application, the Magistrate must record reasons as to why he considers it a fit case for granting maintenance from the date of application, in other words, the order must be judicial and not executive in nature. This view also finds support from paragraph 4 of the judgment delivered by the Supreme Court, in Smt. Savitri v. Govind Singh Rawat (supra) and quoted in paragraph 13 of the order of reference, which reads as follows :

A reading of the above provisions shows that they are intended to provide for a preventive remedy for securing payment of maintenance which can be granted quickly and in deserving cases with effect from the date of the application itself. (Emphasis supplied.)

Unless reasons are given, now a case can be said to be a deserving case for grant of maintenance from the date of application ? The implied powers inferred by the Supreme Court for grant of interim relief u/s 125 Cr. P. C. do not mean implied powers to grant maintenance from a retrospective date without reasons. The doubt, if any, may be resolved by a logical conclusion to read the word "order" used in Section 125 (2) Cr. P. C. with the words "interim or final" and that will clear the entire picture.

In Gafoor Ahmad v. Amnabai 1987 (2) MPWN 142, Mohd. lnayat Vila Khan v. Sulma Ben 1985 Cri. L. R. 112 (MP), Lachhmani v. Rama 1983 Cri. L. R. 72 (MP) : 1983 MPWN 148 and Babulal v. Mangilal 1990 (II) MPWN 138, referred to in the order of reference, it was rightly held that ordinarily the maintenance u/s 125 Cr. P. C. is payable from the date of order and in appropriate cases, it may be made payable from the date of application after recording reasons for the same. This view is not in conflict with the view taken by the Supreme Court in Smt. Savitri v. Govind Singh Rawat (supra) and also accords with the view taken by us. Accordingly we answer the question referred to us as follows :

The grant of maintenance u/s 125 Cr. P. C. from the date of application without reasons has the effect of vitiating such direction and makes it bad in law on that ground.

Let the case be now laid before the learned Single judge for disposal in accordance with law.