BHASKAR INDUSTRIES LTD Vs BHIWANI DENIM & APPARELS LTD. ORS

2001 AIR 3625 2001(2)Suppl.SCR219 2001(7)SCC401 2001(5)SCALE503 2001(7)JT127

CASE NO.:
Appeal (crl.) 858 of 2001



PETITIONER:
M/S. BHASKAR INDUSTRIES LTD.

Vs.

RESPONDENT:
M/S. BHIWANI DENIM & APPARELS LTD. ORS.

DATE OF JUDGMENT: 27/08/2001

BENCH:
K.T. Thomas & K.G. Balakrishnan




JUDGMENT:


THOMAS, J.

Leave granted.

A Sessions Judge, overlooking a legal interdict,
interfered with an interlocutory order and created a
situation for the trial magistrate to remain nonplussed.
That order of the Sessions Judge was sought to be rectified
at the behest of the appellant who, for that purpose, moved
the High Court. But a learned single Judge of the High
Court declined to interfere. Now the trial magistrate
might be under a dilemma as to what is the proper course
for him to adopt.

The facts lie in a narrow compass. Appellant company
filed a criminal complaint before the court of Judicial
Magistrate of First Class, Bhopal (M.P.) against 15 accused
for the offence under Section 138 of the Negotiable
Instruments Act. The first accused in the complaint is a
company having its registered office at Bhiwani in Haryana.
Second accused is the Managing Director of that company.
All the remaining accused are persons said to be associated
with the first accused - company and they are all living in
far distant places from Bhopal, some are in Haryana while
some others are in Chandigarh and some others are in New
Delhi. The magistrate took cognizance of the offence and
issued summons to the accused. It is not necessary to
narrate what happened to the summons issued to the various
accused except in the case of the second accused, because
this appeal is now restricted to the order concerning the
second accused who is arrayed as the second respondent in
the special leave petition.

On 28.4.2000 the trial magistrate recorded that the
notice issued to the second accused (Subhash Sahni) was
received back with the report that he was not seen at his
residence the address of which was shown on the notice.
When other members of the said house refused to accept the
notice it was affixed on the house. On the said
circumstances the magistrate issued bailable warrants to
the accused. Second accused filed an application for
exemption from personal appearance. Pending the same, the
magistrate ordered him to be released on bail if arrested
and directed him to be present in the court for the purpose
of furnishing security by executing a bond for Rs.5,000/-.

All the accused filed a revision petition before the
Sessions Court against the order passed by the magistrate
on 28.4.2000. Learned Sessions Judge (Shri Ranjit Singh,
VIth Additional Sessions Judge, Bhopal) minuted that the
advocate for the second accused had given an undertaking
that he shall appear before the trial court on behalf of
his client. After recording the above submission made by
the advocate the Sessions Judge passed an order the
operative part of which is as follows:

From the analysis of evidence above (sic)
it is clear that the impugned order of the
trial court is not in accordance with law.
Thus, the question under consideration is
decided in negative. On the basis of the
aforesaid analysis I reach a conclusion that
the impugned order of the trial court being
not in accordance with law does not deserve
to be maintained. Therefore, this revision
petition is allowed and the impugned order
of the trial court dated 28.4.2000 is set
aside.

When he set aside the order of the magistrate dated
28.4.2000, what should the magistrate do thereafter as
against second accused? We could not discern it, and we can
imagine the dilemma of the magistrate as to the course to
be adopted thereafter. If a Sessions Judge chooses to pass
such a vague and confusing order what could the subordinate
court do. The confusion got confounded when the Sessions
Judge set aside the order of the magistrate without
substituting with any other direction or order and
consequently the stage was set in a quandary. It was the
said order which the respondent-complainant challenged
before the High Court. But the confused situation was not
defused by the High Court as learned single Judge declined
to interfere with the order of the Sessions Court.

Dr. Abhishek M. Singhvi, learned senior counsel for
the appellant/complainant first contended that the
respondents could not move the High Court in revision
against the order dated 28.4.2000 which was purely an
interlocutory order. At the first blush we thought that
the contention was sustainable, but there are two drawbacks
for the appellant to raise such a contention. First is that
the appellant did not raise any such contention before the
High Court and hence it is not permissible for him to raise
it for the first time in this appeal by special leave.
Second is that it is difficult, in the absence of other
materials, to decide positively whether the order dated
28.4.2000 is an interlocutory order only.

The interdict contained in Section 397(2) of the Code
of Criminal Procedure (for short the Code) is that the
powers of revision shall not be exercised in relation to
any interlocutory order. Whether an order is interlocutory
or not, cannot be decided by merely looking at the order or
merely because the order was passed at the interlocutory
stage. The safe test laid down by this Court through a
series of decisions is this: If the contention of the
petitioner who moves the superior court in revision, as
against the order under challenge is upheld, would the
criminal proceedings as a whole culminate? If it would,
then the order is not interlocutory in spite of the fact
that it was passed during any interlocutory stage.

A three Judge Bench of this Court in Madhu Limaye vs.
State of Maharashtra {AIR 1978 SC 47 = 1977 (4) SCC 551}
laid down the following test: An order rejecting the plea
of the accused on a point which, when accepted, will
conclude the particular proceeding, will surely be not an
interlocutory order within the meaning of Section 397(2).
This was upheld by the four Judge Bench of this Court in
V.C. Shukla vs. State through CBI (AIR 1980 SC 962 = 1980
Supple. SCC 92).

The above position was reiterated in Rajendra Kumar
Sitaram Pande & ors. vs. Uttam and anr. {1999 (3) SCC 134}.
Again in K.K. Patel and anr. vs. State of Gujarat and anr.
{2000 (6) SCC 195} this Court stated thus:

It is well-nigh settled that in deciding
whether an order challenged is interlocutory
or not as for Section 397(2) of the Code,
the sole test is not whether such order was
passed during the interim stage (vide Amar
Nath v. State of Haryana, Madhu Limaye v.
State of Maharashtra, V.C. Shukla v. State
through CBI and Rajendra Kumar Sitaram Pande
v. Uttam). The feasible test is whether by
upholding the objections raised by a party,
it would result in culminating the
proceedings, if so any order passed on such
objections would not be merely interlocutory
in nature as envisaged in Section 397(2) of
the Code. In the present case, if the
objections raised by the appellants were
upheld by the Court the entire prosecution
proceedings would have been terminated.
Hence, as per the said standard, the order
was revisable.

At any rate the objection regarding maintainability of
the revision petition should have been raised before the
court which invoked such a revisional jurisdiction.
Inasmuch as the same was not done we leave that question
undecided now.

We cannot part with this matter without adverting to
the plea made by the second accused before the trial court
for exempting him from personal appearance. He highlighted
two factors while seeking such exemption. First is that
the offence under Section 138 of the Negotiable Instruments
Act is relatively not a serious offence as could be seen
from the fact that the legislature made it only a summons
case. Second is, the insistence on the physical presence of
the accused in the case would cause substantial hardships
and sufferings to him as he is a resident of Haryana. To
undertake a long journey to reach Bhopal for making his
physical presence in the court involves, apart from great
hardships, much expenses also, contended the counsel. He
submitted that the advantages the court gets on account of
the presence of the accused are far less than the
tribulations the accused has to suffer to make such
presence in certain situations and hence the court should
consider whether such advantages can be achieved by other
measures. Therefore, he relied on Section 317 of the Code.
It reads thus:

317. Provision for inquiries and trial
being held in the absence of accused in
certain cases.- (1) At any stage of an
inquiry or trial under this Code, if the
Judge or Magistrate is satisfied, for
reasons to be recorded, that the personal
attendance of the accused before the Court
is not necessary in the interests of
justice, or that the accused persistently
disturbs the proceedings in Court, the Judge
or Magistrate may, if the accused is
represented by a pleader, dispense with his
attendance and proceed with such inquiry or
trial in his absence, and may, at any
subsequent stage of the proceedings, direct
the personal attendance of such accused.

(2) If the accused in any such case is not
represented by a pleader, or if the Judge or
Magistrate considers his personal attendance
necessary, he may, if he thinks fit and for
reasons to be re corded by him, either
adjourn such inquiry or trial, or order that
the case of such accused be taken up or
tried separately.

Sub-section (1) envisages two exigencies when the
court can proceed with the trial proceedings in a criminal
case after dispensing with the personal attendance of an
accused. We are not concerned with one of those exigencies
i.e. when the accused persistently disturbs the
proceedings. Here we need consider only the other exigency.
If a court is satisfied that in the interest of justice the
personal attendance of an accused before it need not be
insisted on, then the court has the power to dispense with
the attendance of that accused. In this context a
reference to Section 273 of the Code is useful. It says
that except as otherwise expressly provided, all evidence
taken in the course of the trial or other proceeding shall
be taken in the presence of the accused or, when his
personal attendance is dispensed with, in the presence of
his pleader. If a court feels that insisting on the
personal attendance of an accused in a particular case
would be too harsh on account of a variety of reasons,
cant the court afford relief to such an accused in the
matter of facing the prosecution proceedings?

The normal rule is that the evidence shall be taken in
the presence of the accused. However, even in the absence
of the accused such evidence can be taken but then his
counsel must be present in the court, provided he has been
granted exemption from attending the court. The concern of
the criminal court should primarily be the administration
of criminal justice. For that purpose the proceedings of
the court in the case should register progress. Presence
of the accused in the court is not for marking his
attendance just for the sake of seeing him in the court.
It is to enable the court to proceed with the trial. If
the progress of the trial can be achieved even in the
absence of the accused the court can certainly take into
account the magnitude of the sufferings which a particular
accused person may have to bear with in order to make
himself present in the court in that particular case.

These are days when prosecutions for the offence under
Section 138 are galloping up in criminal courts. Due to
the increase of inter-State transactions through the
facilities of the banks it is not uncommon that when
prosecutions are instituted in one State the accused might
belong to a different State, sometimes a far distant State.
Not very rarely such accused would be ladies also. For
prosecution under Section 138 of the NI Act the trial
should be that of summons case. When a magistrate feels
that insistence of personal attendance of the accused in a
summons case, in a particular situation, would inflict
enormous hardship and cost to a particular accused, it is
open to the magistrate to consider how he can relieve such
an accused of the great hardships, without causing
prejudice to the prosecution proceedings.

Section 251 is the commencing provision in Chapter XX
of the Code which deals with trial of summons cases by
magistrates. It enjoins on the court to ask the accused
whether he pleads guilty when the accused appears or is
brought before the magistrate. The appearance envisaged
therein can either be by personal attendance of the accused
or through his advocate. This can be understood from
Section 205(1) of the Code which says that whenever a
magistrate issues a summons, he may, if he sees reason so
to do, dispense with the personal attendance of the accused
and permit him to appear by his pleader.

Thus, in appropriate cases the magistrate can allow an
accused to make even the first appearance through a
counsel. The magistrate is empowered to record the plea of
the accused even when his counsel makes such plea on behalf
of the accused in a case where the personal appearance of
the accused is dispensed with. Section 317 of the Code has
to be viewed in the above perspective as it empowers the
court to dispense with the personal attendance of the
accused (provided he is represented by a counsel in that
case) even for proceeding with the further steps in the
case. However, one precaution which the court should take
in such a situation is that the said benefit need be
granted only to an accused who gives an undertaking to the
satisfaction of the court that he would not dispute his
identity as the particular accused in the case, and that a
counsel on his behalf would be present in court and that he
has no objection in taking evidence in his absence. This
precaution is necessary for the further progress of the
proceedings including examination of the witnesses.

A question could legitimately be asked - what might
happen if the counsel engaged by the accused (whose
personal appearance is dispensed with) does not appear or
that the counsel does not co-operate in proceeding with the
case? We may point out that the legislature has taken care
for such eventualities. Section 205(2) says that the
magistrate can in his discretion direct the personal
attendance of the accused at any stage of the proceedings.
The last limb of Section 317(1) confers a discretion on the
magistrate to direct the personal attendance of the accused
at any subsequent stage of the proceedings. He can even
resort to other steps for enforcing such attendance.

The position, therefore, bogs down to this: It is
within the powers of a magistrate and in his judicial
discretion to dispense with the personal appearance of an
accused either throughout or at any particular stage of
such proceedings in a summons case, if the magistrate finds
that insistence of his personal presence would itself
inflict enormous suffering or tribulations to him, and the
comparative advantage would be less. Such discretion need
be exercised only in rare instances where due to the far
distance at which the accused resides or carries on
business or on account of any physical or other good
reasons the magistrate feels that dispensing with the
personal attendance of the accused would only be in the
interests of justice. However, the magistrate who grants
such benefit to the accused must take the precautions
enumerated above, as a matter of course. We may reiterate
that when an accused makes an application to a magistrate
through his duly authorised counsel praying for affording
the benefit of his personal presence being dispensed with
the magistrate can consider all aspects and pass
appropriate orders thereon before proceeding further.

In the result, we allow this appeal and set aside the
order passed by the Sessions Judge on 30.6.2000 (in
Criminal Revision Petition 197/2000). However, this course
is adopted without prejudice to the rights of the second
accused to move a fresh application seeking relief under
Section 317 of the Code. If any such application is filed
the magistrate shall pass orders thereon before proceeding
further in the light of the observations made in this
judgment.


J
( K.T. Thomas )

J
( K.G. Balakrishnan )
August 27, 2001.

K. Sunil V/s State

IN THE HIGH COURT OF DELHI AT NEW DELHI

03.07.2008

Present: Mr. K. Sunil for the petitioners
Mr. Pawan Behl for the State

Crl. M.C.No.1303/2008 and Crl. M.A.4923/2008

The petitioners are aggrieved of the order dated 17.4.2008 passed by Shri
Rajender Kumar, ASJ, Delhi in SC- No.30/2006, whereby the application of the
petitioners for exemption from personal appearance under Section 205 and 317 of
Cr.PC, till such time the Court directs their appearance at a subsequent stage,
has been rejected. This application was rejected on the ground that merely
because the petitioner is an advocate or an agriculturist or a businessman and
has to travel a distance of about 1100 k.m. on each hearing, cannot in itself be
a ground for permanent injunction for appearance in the trial. The counsel for
the petitioners has drawn my attention to the fact that in the application
itself, which was moved before the Trial Court, the petitioners have pointed out
that they have not been disputing their identity and, therefore, the proceedings
before the Trial Court would not be hampered on any such ground. At the same
time, they had also consented to the entire cross-examination and evidence being
recorded in their absence. They also gave an undertaking to the effect that
whenever their appearance would be required by the Court, they will present
themselves before the Court.
It is well known that in criminal proceedings, the accused persons have a
right to be present during the trial to defend themselves either in person or
through a counsel of their choice. However, it cannot be said that there is any
compulsion on such accused persons to appear in person at every stage of the
trial. Furthermore, the Code nowhere enumerates such presence. On the other
hand, the Code provides power to the Court to exempt such appearances in cases


where such appearance is not necessary. The Supreme Court in Bhaskar Industries
Ltd. Vs. Bhiwani Denim and Apparels Ltd. (2001) 7 SCC 401 observed that;
?The concern of the Criminal Court should primarily be the administration of
criminal justice. For that purpose, the proceedings of the Court in the case
should register progress. Presence of the accused in the Court is not for
marking his attendance just for the sake of seeing him in the Court. It is to
enable the Court to proceed with the trial. If the progress of the trial can be
achieved in the absence of the accused, the Court can certainly take into
account the magnitude of sufferings which a particular accused person may have
to bear with in order to make himself present in the Court in that particular
case.?

It is, therefore, illogical that even though the presence of the accused does
not in any way cater the progress of the trial, the accused must be present. On
the other hand, if the accused person himself does not wish to avail that right
of personal appearance on every date, the Court should not arbitrarily deny him
such exemption if in the interest of justice, such exemption can be given. In
this regard, the counsel for the petitioners has relied upon the case of Bhagwan
Das and Ors. Vs. State reported as AIR 1953 ALL 630 (Vol. 40 C.N. 315) whereby
it is stated as follows:-
?The law enjoins that an accused should be present during the course of the
trial more to safeguard his interests than to cause him inconvenience. In a
case where the accused himself applies to the court to be exempted from personal
appearance, then a court should grant the request unless it is of opinion that
in the interests of justice it is necessary that the accused should be present
throughout the course of the trial, or unless there are some other good reasons
for directing the presence of the accused throughout the course of the trial.
Under the circumstances of this case, we are of the opinion that it would be a
hardship for the accused to be present during the course of the trial in the
Court of the Magistrate which may, for all we know, be a protracted and lengthy
one.?

The counsel for the petitioners has also cited a judgment of Madras High Court
in A. Sundara Pandian Vs. State, 1987 (3) Crimes 655 whereby it is held as
follows:-
?Courts should not hesitate to dispense with the personal appearance of the
accused, unless the interest of the prosecution would thereby suffer or under
the Code itself the presence of the accused is statutorily required.?


To the same effect the petitioner is also citing decision of the Jharkhand
High Court in the case of Dr. Prakash Amrut Mody and Anr. Vs. State of Jharkhand
reported as 2008 (1) BLJ 58.
In this case, it is held as follows:-
?The test basically is the assurance that the court?s proceedings would not be
hampered by allowing the personal attendance of the accused to be dispensed
with. It would no doubt also depend upon the gravity of offence. The approach of
the Magistrate should be to see whether personal attendance is absolutely
necessary for the purpose of case. While considering prayer for protection under
Section 205 Cr.P.C., the Magistrate should not adopt too technical or stringent
approach through the discretion should not be used liberally ?. Mere asking of
it. Regard should be had to exceptional special circumstances and the
inconvenience which the accused is likely to suffer on account of distance or
physical disability or for any such good reason, if his personal attendance is
insisted upon on each and every date till the conclusion of the trial.?



In S.V. Mazumdar and Ors. Vs. Gujarat States Fertilisers Company Ltd. (2005) 4
SCC 173, the Supreme Court observed as follows;
?it is has to be borne in mind that while dealing with an application in terms
of Section 205 of the Code, the Court has to consider whether any useful purpose
would be served by requiring the personal attendance of the accused or whether
progress of the trial is likely to be hampered on account of his absence.?

As far as the precaution which is necessary for the further progress of the
proceedings in case an exemption from appearance is granted, the Supreme Court
in the case of Bhaskar Industries Ltd. (supra) observed that;
?...one precaution which the court should take in such a situation is that the
said benefit need be granted only to an accused who gives an undertaking to the
satisfaction of the court that he would not dispute his identity as the
particular accused in the case, and that the counsel on his behalf would be
present in court and that he has no objection in taking evidence in his
absence?.

In the case at hand, as already pointed out, the accused themselves are
undertaking not to raise any issues with regard to their identification and also
that they will present themselves whenever their personal appearance is
required.
In that view of the matter, the petition deserves to be allowed. The
petitioners are exempted from personal appearance in SC-30/2006 in State Vs.
Shri Raja Ram Yadav and Ors. arising out of FIR No.166/99 under Sections 308/34
IPC, Police Station Dilshad Garden and permit the petitioners to appear only on
those dates when their presence will be necessary in the Court. It is also
directed that their counsel would be present in the Court whenever their case is
taken up.
The petition stands disposed of.
Dasti.


Sudershan Kumar Misra, J.
July 03, 2008
Rs

Neeraj Kumar Singh Vs State

IN THE HIGH COURT OF DELHI AT NEW DELHI

16.12.2008
Present: Mr. Neeraj Kumar Singh for the petitioner.
Mr. U.L.Watwani, APP for the State.

Crl. M.A. NO. 14649/2008

Allowed subject to all just exceptions.
Crl. M.C. NO. 3931/2008
By way of the present petition filed under Section 482 Cr.P.C.,
the petitioner seeks to challenge the order dated 12.11.2008 and 24.11.2008
passed by the M.M., Karkardooma Court, Delhi.
Counsel for the petitioner states that three complaint cases
filed by the same respondent against the present petitioner were fixed before
the trial court on 12.11.2008 and in all the three cases the petitioner moved
application seeking his exemption from personal appearance. Counsel submits
that the petitioner was allowed exemption in the other two cases but as far as
the present case is concerned, the court had directed NBWs against the
petitioner through SHO returnable on 29.4.2008. Counsel further submits that
after passing of the said order, the petitioner moved another application under
Section 205 r/w Section 317 Cr.P.C. and under Section 70 Cr.P.C. to seek
cancellation of his NBWs and for grant of permanent exemption. The court
after hearing the arguments on the said application gave direction for the
personal presence of the accused petitioner at the time of hearing of his
application. The court also gave directions for the application to be
disposed of in the presence of the complainant/respondent and not in his
absence. The contention of the counsel for the petitioner is that the
learned M.M. ought to have allowed the application of the petitioner seeking
his exemption in the present case as well while his exemption was allowed in
the other two cases. Counsel for the petitioner has placed reliance on the
judgments of this court in Suresh V. Chaturvedi Vs. M/s. AES Control Pvt. Ltd.,
2003 V AD (Delhi) 145 and Prem Cashew Industries and Ors. Vs.Zen Paroo, 2000
III AD (Crl.)DHC 447 to contend that the court is not required to insist the
presence of the accused before dealing with his application seeking
cancellation of NBWs.
I have heard learned counsel for the petitioner at great length.
Notice be issued to the respondent, returnable on 24.3.2009.
Considering the aforesaid submissions made by the counsel for the
petitioner the impugned orders shall stand stayed till the next date.
DASTI.


December 16, 2008 KAILASH GAMBHIR, J.
mg

SHAIL KUMARI DEVI & ANR vs KRISHAN BHAGWAN PATHAK

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)