Citation Codes

Equivalent Citations

citation codes

Case Number

Cr.R.C No. 567 of 1997,27-8-1998

Advocates

R. Yashod Vardhan, Advocate for the Petitioner
S. Saravanakumar, Advocate for the Respondent.

Judges

M. Karpagavinayagam, J.

Acts

sub-section (2) of S. 125, Cr.P.C

See more information ...

Smart Summary

Concise Analytical Summary of the Opinion

Factual and Procedural Background

The wife (first petitioner) and her two minor children (petitioners 2 and 3) filed an application for maintenance on 19.6.1995 claiming that the husband (respondent) drove them out of the matrimonial home on 6.3.1993 and that thereafter the respondent remarried and fathered another child. The respondent filed a counterclaim denying entitlement and stating that he had filed a custody petition in Cuddalore Court.

After enquiry, the learned Judicial Magistrate No. I, Chidambaram awarded maintenance of Rs. 500/- to the wife and Rs. 250/- each to the two children, but ordered that maintenance be payable from the date of the order (5.5.1997) rather than from the date of the application. The husband did not prefer any revision against that order. The petitioners (wife and children) challenged only the effective date and filed the present revision seeking modification so that maintenance would operate from the date of the application, namely 19.6.1995.

Legal Issues Presented

Whether maintenance under S.125(2) Cr.P.C. is to be paid from the date of the order or from the date of the application for maintenance?
Whether the Magistrate must record reasons when directing maintenance to be payable from the date of the application and whether reasons are also required when awarding maintenance from the date of the order (i.e., the scope of the requirement under S.354(6) Cr.P.C.)?

Arguments of the Parties

Petitioners' Arguments (learned counsel Mr. Yashod Vardhan)

The learned Magistrate, in the absence of any reason mentioned in the order, ought to have awarded maintenance from the date of the application and not from the date of the order.
Implicit in the petitioners' position is that the entitlement to maintenance arises from the date the application is filed and, unless the court gives reasons for delaying the effective date, the award should run from that application date.

Respondent's Arguments (learned counsel Mr. Saravanakumar)

The plain reading of S.125(2) Cr.P.C. shows that reasons need be recorded only if the court directs maintenance from the date of the application; no reasons are necessary for holding that maintenance is payable from the date of the order.
It was submitted that normally the law mandates payment from the date of the order and that payment from the date of the application would be an exceptional course requiring reasons.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Mohd. Ismail … v. Smt. Bilquees Bano (1997 (4) Crimes 154), Allahabad High Court	Observation that ordinarily maintenance allowance is from the date of the order, but when awarded from the date of the application the Court must record reasons.	The opinion acknowledges this observation but clarifies that Mohd. Ismail cannot be read to mean reasons are unnecessary when awarding maintenance from the date of the order; the present Court holds reasons must be recorded for either eventuality under S.354(6) Cr.P.C.
Savitri W/O Govind Singh Rawat v. Govind Singh Rawat (A.I.R. 1986 S.C. 984)	Authority that the Magistrate can grant interim maintenance even before final order where the wife's status is not questioned.	Cited to show that interim relief is available and thus in some cases there will be no need to make the final order retroactive to the application date if interim maintenance was already granted.
P.N. Duda v. P. Shiv Shankar (1988 S.C. 1208)	Expresses concern about delayed justice ("justice cries in silence for long, for too long").	Invoked to emphasise the need for speed and summary remedy under S.125 Cr.P.C., supporting the conclusion that maintenance should normally be awarded from the application date to prevent protracted delay.
M.P. Sathe v. P.A. Sathe (1993 Crl. L.J. 2758)	This decision is listed among authorities supporting the Court's view.	Relied upon as one of several decisions that support the Court's analysis that the normal rule favors awarding maintenance from the date of application.
Krishna Jain v. Dharam Raj Jain (1992 Crl. L.J. 1028)	This decision is listed among authorities supporting the Court's view.	Relied upon as supportive precedent cited by the Court for its approach to the effective date of maintenance orders.
Nacchattar Singh v. Harjinder Kaur (1995 Crl. L.J. 2726)	This decision is listed among authorities supporting the Court's view.	Relied upon as supportive precedent cited by the Court for its approach to the effective date of maintenance orders.

Court's Reasoning and Analysis

The Court began with a textual and purposive reading of S.125(2) Cr.P.C., which provides that an allowance "shall be payable from the date of the order, or, if so ordered from the date of the application for maintenance." The Court observed that the statutory wording vests discretion in the Magistrate to choose either date and that each choice requires judicial exercise of that discretion based on the facts and circumstances of the case.

The Court rejected a mechanical reading that would require reasons only where the order awards maintenance from the date of the application. Instead, by reference to S.354(6) Cr.P.C. (which mandates that every final order under S.125 contain the points for determination and reasons for the decision), the Court held that reasons must be recorded for every point for determination, including the question whether maintenance is to be paid from the date of the order or from the date of the application.

The Court identified the typical points for determination in maintenance cases as:

Whether the petitioners are entitled to maintenance?
If so, what is the quantum?
Whether the maintenance is to be paid from the date of the order or from the date of the application?

Because S.125 Cr.P.C. is a benevolent provision intended to prevent vagrancy and provide a speedy remedy, the Court held that ordinarily the Magistrate should grant maintenance with effect from the date of the application, provided the evidence supports inability to maintain from that date. The Court explained that if the normal rule were instead to award maintenance only from the date of the order, there would be a strong incentive for respondents to delay proceedings and thus defeat the statute's summary and speedy purpose.

The Court nevertheless recognised there are legitimate exceptions in which maintenance may properly be made effective only from the date of the order. Examples provided (explicitly in the opinion) include: (a) where interim maintenance was already ordered during enquiry, so no retroactive grant is necessary; and (b) where the wife derives some income (albeit insufficient) and the enquiry concludes shortly, making a date-of-order commencement appropriate. For any such exception the Court emphasised that "special reasons" must be recorded to show that the Magistrate exercised discretion judicially.

Applying these principles to the facts, the Court examined the lower court record and found that while the Magistrate had concluded entitlement and fixed quantum, the Magistrate failed to frame or discuss the point whether maintenance should operate from the date of application or the date of order and gave no reasons for selecting the date-of-order commencement (5.5.1997).

The Court further reviewed the procedural history and conduct: the maintenance application was filed on 19.6.1995; the respondent repeatedly failed to appear on many dates and delayed the proceedings; evidence (P.W.1 and P.W.2) was examined during 1996; the respondent was absent on numerous hearings, including on the date of final order. The Court concluded that the respondent's conduct had prolonged the proceedings and that the first petitioner and children had been under the care of the petitioner's mother, incurring expenses since the date of application.

Given the absence of any recorded reasons by the Magistrate for making the award effective only from the date of the order, and in view of the statutory obligation under S.354(6) Cr.P.C. to record reasons on each point for determination, the Court concluded that the normal rule (maintenance effective from date of application) should apply in the present case.

Holding and Implications

Core Ruling: The revision is allowed and the impugned order is modified so that maintenance is payable from 19.6.1995 (the date of the application).

Consequences for the parties: the petitioners (wife and two children) are entitled to maintenance with effect from the date they filed the application (19.6.1995) rather than from the date of the Magistrate's order (5.5.1997). The Court modified the lower Court's order accordingly.

Broader implications: the opinion articulates the principle that (i) the Magistrate has discretion to fix the commencement date of maintenance under S.125(2) Cr.P.C., (ii) reasons must be recorded for whichever date is chosen (in light of S.354(6) Cr.P.C.), and (iii) ordinarily maintenance should be effective from the date of application unless special reasons justify otherwise. The summary above reflects the direct holdings and reasoning in the opinion; it does not purport to state any further precedent beyond what is explicitly discussed in the text.

Show full summary ...

Gnanaselvi And Ors. v. Illavarasan

The short question in controversy in the present revision is this:

“Whether the maintenance is to be paid from the date of the order or from the date of application for maintenance ?”

2. The relevant Section for consideration of the above question in S. 125 (2) Cr.P.C which reads as follows:

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

3. While awarding the maintenance, the learned Magistrate directed that the maintenance is to be paid to the petitioners herein from the date of the order. Claiming that the award of maintenance shall be from the date of the application for maintenance, the present Revision has been filed by the petitioners, the wife and children for modification of the award of maintenance to take effect from the date of application for maintenance, instead of from the date of the order.

4. To appreciate this claim, the relevant facts are to be mentioned hereunder. -

(a) The wife, the first petitioner, for herself and on behalf of her two minor children (petitioners 2 and 3) filed an application claiming maintenance on 19.6.1995 from her husband, the respondent herein. The ground urged in that petition is that the respondent drove her out from the matrimonial house along with her children on 6.3.1993 and that thereafter, her husband married one Varlakshmi and gave birth to a child and that from 6.3.1993 onwards, the petitioners who are unable to maintain themselves, have been living with the mother of the first petitioner.

(b) The respondent husband resisted the said petition by filing a counter that he already filed a petition for custody of the children before the Cuddalore Court and that there was no reason for the wife to leave the matrimonial home and as such, the petitioners are not entitled to maintenance.

(b) After enquiry, the learned Judicial Magistrate No. I, Chidambaram ordered that maintenance of Rs. 500/- was to be paid to the first petitioner and maintenance of Rs. 250/- each to the second and third petitioners, from the date of the order, that is, from 5.5.1997

(d) As against this order of maintenance, the husband has not preferred any revision. However, as stated earlier, claiming the maintenance from the date of application, the petitioners have approached this Court for invoking the revisional jurisdiction of this Court for modification to the effect that the impugned order shall take effect from the date of the application namely, 19.6.1995

5. Mr. Yashod Vardhan, the learned counsel appearing for the petitioners, while attacking the said portion of the impugned order, would submit that normally in the absence of any reason mentioned in the order, the learned Judicial Magistrate ought to have passed an order awarding maintenance only from the date of the application and not from the date of the order.

6. Mr. Saravanakumar, the learned counsel appearing for the respondent, would submit that the reading of the relevant Section would show that reason shall be recorded only in the event of passing an order directing the maintenance to be paid from the date of the application and that no reason need be given to hold that the petitioners are entitled to maintenance from the date of the order.

7. In this context, the above question has been raised.

8. The reading of S. 125 (2), Cr.P.C would clearly show that there is a discretion vested upon the Magistrate in deciding the question as to whether the allowance shall be payable from the date of the order or from the date of the application.

9. Merely because of the wordings “from the date of the order” mentioned in the first part of the said Section, it cannot be said that the learned Judicial Magistrate would straightaway order for the maintenance from the date of the order. In the same way, merely because the wordings “from the date of application for maintenance” appear on the latter portion of the Section, it cannot be said that reason is to be given only for the category mentioned later and need not be given for the category mentioned earlier.

10. For adopting one of the courses, the lower Court has necessarily to exercise its discretion with a judicial approach, since there are two options open to the Magistrate. It is purely the discretion of the Court to grant maintenance form a particular date. The facts and circumstances of each individual case are to be taken into consideration, while passing such an order.

11. In this context, S. 354 (6) Cr.P.C is quite relevant. Under this Section, every final order made under S. 125, Cr.P.C shall contain the point or points for determination of decision thereon and the reason for the decision. In the light of the above section, the Court is required to support its decision on every point for determination with reason.

12. In other words, the Court shall give reason for each point for determination. The points for determination in every maintenance case are these :—

(1) Whether the petitioners are entitled to maintenance?

(2) If so, what is the quantum?

(3) Whether the maintenance is to be paid from the date of the order or from the date of the application?

13. Therefore, when there are two eventualities in each point for determination, the Court has necessarily to exercise its judicial discretion and come to the reasoned conclusion by giving the said reasons in the order. That alone would reflect the judicial application of mind by the Court with the judicial approach on the facts and circumstances of the case.

14. It cannot, at all, be said that when there are two eventualities, the Court is required to give reason only to one eventuality and not with regard to the other. If the said contention is accepted, then it cannot be found out whether the discretion has been judicially exercised or not. Therefore, the Court has to exercise its judicial discretion in a reasonable manner, keeping in view of the facts and circumstances of the case. To put it differently, recording of reason is essential in either case, i.e, both when the maintenance is granted from the date of the application or from the date of the order.

15. The learned counsel for the respondent would submit that the law mandates payment of maintenance allowance normally from the date of the order and that the payment from the date of the application would be only on exceptional circumstances, that too by recording reasons. In supponr of this submission, he cited the decision rendered in Mohd. Ismail…Applicant; v. Smt. Bilquees Bano…Opposite Party. (1997 (4) Crimes 154), Allahabad High Court. The relevant observation is this:

“A personal of sub-section (2) of S. 125, Cr.P.C indicates that normally the maintenance allowance is to be awarded from the date of the order or, if so ordered, from the date of the application. Although sub-section (2) does not specifically state but from the language it appears that when maintenance allowance is awarded from the date of the application, the Court must record reasons for doing so.”

This decision would only indicate that reasons must be recorded for ordering the allowance to be paid from the date of the application. But, it cannot be stated that no reasons need be recorded for ordering payment from the date of the order. The submission made by the counsel that the order of maintenance must be normally from the date of the order and that there need not be any reasons for the same, in my view, is quite wrong having regard to the object behind S. 125 Cr.P.C This sort of interpretation is an attempt to insert and introduce something new in the sub-section, which the legislature never intended. In view of S. 354 (6) Cr.P.C the reasons have to be necessarily recorded in both the situations. As a matter of fact, it could be said that for ordering maintenance from the date of the application there shall be reasons, but for ordering payment from the date of the order there shall be special reasons.

16. In fact, the husband shall be permitted to contest the claim by raising objection to award the allowance from the date of the application. In the same way, the wife shall also be permitted to object by stating that the husband has no right to urge that the allowance should have been given only from the date of the order. While considering the respective claim and objection, the Court has to construe the Section liberally and beneficially to the applicant, while deciding the date from which the maintenance is to be granted.

17. Moreover, in the light of the decision of the Supreme Court in Savitri W/O Govind Singh Rawat; v. Govind Singh Rawat (A.I.R 1986 S.C 984: 1986 Crl. L.J 41: 1986 L.W (Crl.) 1), the Magistrate can grant interim maintenance even before passing of the final order, once the status of the wife has not been questioned.

18. Furthermore, the wife approaches the Court claiming maintenance by filing the application, on the ground that she is not able to maintain herself. During enquiry, she has to prove her inability from the date of application. When the Court ultimately decides that she is entitled to maintenance after conducting enquiry, the said decision must necessarily be based upon the material showing that the wife is unable to maintain herself even from the date of application. Once such a conclusion is arrived at, then in my view, normally, the learned Magistrate has to pass an order directing the maintenance from the date of the application. Of course, even for such an order, the reasons are to be given, in order to show that the discretion has been properly exercised.

19. If it is to be taken that the normal rule is from the date of the order, then the normal tendency for the husband would be to drag on the proceeding for a number of years. Therefore, the Court should apply its judicial mind to the facts and circumstances of each case and then pass the order deciding the various questions inclusive of the question which is raised in this revision.

20. The above view of mine is supported by various decisions, namely, (1) M.P Sathe v. P.A Sathe (1993 Crl. L.J 2758); (2) Krishna Jain v. Dharam Raj Jain (1992 Crl. L.J 1028); and (3) Nacchattar Singh v. Harjinder Kaur (1995 Crl. L.J 2726).

21. The meaning of the wordings of S. 125 (2) Cr.P.C has to be understood, in the light of the scope and object of the provisions of S. 125 Cr.P.C The object behind the benevolent provision is to prevent vagrancy and ensure that the destitute woman and neglected children are provided promptly with sustenance. S. 125 of Cr.P.C is meant to achieve a social purpose. It provides a speedy remedy for the supply of food, clothing and shelter to the deserted wife and children.

22. The legislation in this wisdom has incorporated the provision in Cr.P.C, implying thereby that refusal or neglect to maintain the wife and the children is criminal in nature. It is succinctly said that where there is right, there is remedy. It is settled law that such a remedy is required to be speedy and it must rest on the linchpin of the summary procedure. Despite this, normally in these proceedings, this Court notices the husband does not allow the proceedings to go on by raising some objecting or the other. Invariably the lower Courts are insisted to give decision on the said objecting by passing an order. Once the said order is passed even before the commencement of the enquiry under S. 125 Cr.P.C, the husband would rush to the higher forum challenging the said order and obtain interim orders, which results in the proceedings getting stayed. The deserted wife and children being the sufferers to seek shelter of the protective umbrella provided under S. 125 Cr.P.C, in order to get the early justice. When she is not allowed to get justice by way of a speedy remedy, that too in a summary procedure, the sufferers are sure to lose confidence in the Court. In other words, it could be said that procedural wrangle is sure to erode the faith in our system.

23. In P.N Duda v. P. Shiv Shankar (1988 S.C 1208), it is noted with deep concern that “justice cries in silence for long, for too long.”

24. When the unfortunate wife knocks at the door of the Court in the event of her being not able to maintain herself, and when the Court finds her entitlement, certainly such maintenance could be ordered with effect from the date on which she approached the Court with an application under S. 125 Cr.P.C Mere non-mentioning of the reason for making the order operative from the date of application, would not automatically invalidate the order.

25. Therefore, in my view, the normal rule is to grant maintenance from the date of application and not from the date of the order. It is only where there are exceptional cases for valid reasons. It is open to the Magistrate to grant maintenance from the date of the order. For example, during the pendency of the enquiry if interim maintenance was ordered, then there is no necessity for the Court to pass on order granting maintenance from the date of application. In case, where the wife has derived some income which is not sufficient and the enquiry itself is over within a short time, then it is open to the Magistrate to grant maintenance from the date of the order on showing the above circumstances.

26. So, in the light of the above principles, let us now see the facts of this case. The lower Court concluded that the petitioners, namely, wife and children, were driven out by the respondent/husband on 6.3.1993 and the respondent, subsequently has been living with one Varalakshmi and through her, has give birth to a male child and that therefore, the petitioners are entitled to maintenance. It was also concluded that the respondent's monthly salary was Rs. 7,500/- and that the first petitioner was entitled to Rs. 500/- and the second and third petitioners being children were entitled to maintenance of Rs. 250/- each. However, the point for determination as regards the question as to whether the order comes into effect from the date of the application or from the date of the order has not been framed nor discussed. However, it is seen from the judgment that without adducing any reason, the allowance of maintenance was ordered to be given from the date of the order, namely, 5.5.1997

27. It is true that mere pendency of the maintenance application for a long time need not be the sole ground to conclude that the maintenance allowance must be from the date of the application. But, in this case, it is noticed that the case was dragged on for a long time by the respondent on a number of hearings by not presenting himself before the Court. The following details would give the clear picture about the conduct of the respondent.

28. On 19.6.1995, the application for maintenance was taken on file. On 29.9.1995 counter was filed. P.W 1 was examined on 8.1.1996 and P.W 2 was examined on 6.12.1996 Then, the matter was adjourned to several dates, but on those dates, the respondent/husband did not choose to appear before the Court. On 20.12.1996, 3.1.1997, 22.1.1997, 19.2.1997 and 29.2.1997 the respondent was absent. However, petition was filed requesting time for examination of witnesses on the side of the respondent. Accordingly, it was periodically adjourned for giving opportunity to the respondent. From 21.3.1997 onwards on several hearings, neither respondent was present nor any petition was filed through Advocate on his behalf. So, ultimately on 5.5.1997, the impugned order was passed. Even on that date the respondent was absent.

29. So, this conduct would show that the respondent did not choose to examine himself as a witness nor to examine any witness on his behalf, thereby not to contest the case by making his appearance. Therefore, this attitude shall also be taken into consideration to decide the question whether the order shall take effect from the date of the application or from the date of the order.

30. This maintenance application was filed on 19.6.1995 The first petitioner has been under the care and custody of her mother and she has to incur expenditure to maintain herself and her two children. She has also produced records to show that she had incurred expenses for the education of her children. Moreover, though she was driven out from the matrimonial home in 1993, she filed the application claiming maintenance only on 19.6.1995

31. To sum up, normal rule is that the order shall be passed granting maintenance from the date of application because on the date of application itself she comes to the Court with the claim that she is not bale to maintain herself. Even for this order, the Court is expected to give some reasons. But, when the Court takes a decision to grant maintenance from the date of the order which being the exception, it has necessarily to give special reason to come to such a conclusion. That alone would enable the higher forums to scan the decision arrived at by the lower Court in order to decide whether such a conclusion is correct or not.

32. In these circumstances, it is appropriate to hold that the petitioners are entitled to maintenance from the date of application, that is, from 19.6.1995 Consequently, the impugned order passed by the Court below directing the maintenance from the date of the order, that is, from 5.5.1997 is modified to the effect that the petitioners are entitled to maintenance allowance from 19.6.1995

33. In the result, the revision is allowed.

Gnanaselvi And Ors. v. Illavarasan

Concise Analytical Summary of the Opinion

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Petitioners' Arguments (learned counsel Mr. Yashod Vardhan)

Respondent's Arguments (learned counsel Mr. Saravanakumar)

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Gnanaselvi And Ors. v. Illavarasan

Comments