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)