Susmita Mohanty v. Rabindra Nath Sahu

1. Petitioner calls in question legality of the direction given by the learned First Additional Sessions Judge, Ganjam, Berhampur that she was entitled to maintenance from 3.11.1992, i.e., the date of order passed by the learned Judicial Magistrate, First Class, Surada (in short, 'the JMFC) while disposing of the application under Section 125 of the Code of Criminal Procedure, 1973 (in short, 'the Code'), and not from 5.2.1991, i.e. the date of application for maintenance as was originally directed by the learned JMFC.

2. Detailed reference to the factual aspects is not necessary in view of the limited nature of controversy. Essential factual position is as follows :

Petitioner filed an application for maintenance in terms of section 125 of the code which was allowed and the opposite partly was directed to pay maintenance at the rate of Rs. 400/- permonth from the date of initiating of the proceeding, by the learned JMFC, Surada. In revision the quantum was maintained, but the Revisional Court held that the petitioner was entitled to maintenance from the date of order and not from the date of application. It was observed that Section 125(2) mandates reasons to be recorded in writing as to why the maintenance is to be granted from the date of application and not from the date of order. It was observed that the normal rule is grant maintenance from the date of order and in exceptional cases only, for reasons to be recorded, maintenance can be granted from the date of application. It was observed that no prayer was made in the application to grant maintenance from the date of initiation of the proceeding and therefore grant of maintenance from the date of application was not warranted.

3. According to Mr. R. Mohapatra, leaned Counsel for petitioner, the Revisional Court has lost sight of the purpose of enactment of Section 125 which was intended to grant relief to destitute persons, and too a technical view would be counter productive. According to him, observation of Revisional Court that no prayer was made for grant of maintenance from the date of application, is also not factually correct because on a bare reading of the application itself such a plea was fathomable. According to learned Counsel for the opposite parties, approach of Revisional Court is proper and no interference is warranted.

4. Sub-section (2)ofSection 125 of the Code provides that the allowance shall be payable from the date of the order, or, if so ordered, from the date of application for maintenance. The provision read as follows :

"125. Order for maintenance of wives, children and parents :

(1) xxx xxx xxx xxx xxx (2) Such allowances shall be payable from the date of the order, or, if so ordered, from the date of the application for maintenance."

Under the Code of 1872 and 1882 the maintenance allowance could only be made payable from the date of order. But under the Code of 1898 and present Code, such allowance may be ordered to be paid either from the date of order or from the date of application for maintenance. Discretion has been given to the Magistrate that if he orders, the maintenance is to be paid from the date of application. This discretionary power is to be exercised depending upon facts of each case. As to what those circumstances would be is nowhere laid down in the Code. Circumstances may vary from case to case, Provision contained in section 125 of the code is intended to benefit a person in distress, who is unable to maintain himself/herself.

5. The underlying purpose is to alleviate distress of neglected relations like wives, children and parents and to save them from vagrancy. The provision has been enacted to enable a discarded wife or helpless child to get the much needed and urgent relief in one or other of the three forums convenient to them. The proceedings are of a summary nature. In that background, it is imperative that the words used in the provision shall be liberally construed without doing any violence to the language. (See Jagir Kaur v. Jaswant Singh, AIR 1963 SC 1521, a decision rendered in the context of Section 488 of 1898 Code). The provision is a measure of social justice and specially enacted to protect women and children and falls within the constitutional sweep of Article 15(3) reinforced by Article 39. The brooding presence of the constitutional empathy for the weaker section like women and children must inform interpretation if it has to have social relevance. So viewed, it is possible to be selective in picking out the interpretation out of the two alternatives which advances the cause of the derelicts. (See Capt. Ramesh Chander Kaushal v. Mrs. Veena Kaushal & Ors., AIR 1978 SC 1807), Sir James Pit James Stephen who piloted the Code of 1872 described the precursor of Chapter IX of the Code in which Section 125 as "a mode of preventing vagrancy or at least of preventing its consequences."

6. A journey down the judicial pronouncements history lane shows that in 1940, the Sindh High Court observed that maintenance should be ordered to be paid from the date of application and no sympathy can be shown to the husband or father if he failed to maintain the applicant. (See Hemibai v. Kundibai:AIR 1949 Sind 222). The observations are in line with the perspective of Directive Principles of State Policy and purpose of legislative enactment.

7. The plain language of the provision makes it clear that if the Court does not specifically indicate the date from which maintenance shall be payable, it should be taken to have been ordered from the date of order. If the order itself indicates that maintenance shall be payable from the date of application or from the date of order, there can be no ambiguity and the parties know from what date the maintenance becomes payable. Ambiguity would arise and parties would be put to difficulty where the order is silent as regards the date from which the mainte- nance is payable. It is to meet such contingencies that Section 125(2) of the Code lays down that such allowance shall be payable from the date of order. If the provision is only to the effect that it shall be payable from the date of order, there will be no discretion left to the Court to make maintenance payable from the date of application. Therefore the words following : "if so ordered from the date of application " have been incorporated. There is another purpose also underlying Section 125(2). That is to fix the outer limit of date from which the order is to take effect. I do not understand Section 125(2) as containing a legislative mandate that the normal rule is to order maintenance from the date of order or it is only exceptionally that maintenance is to be ordered to be paid from the date of application.

8. A wife, child or parent in distress and neglected by the person responsible for his or her maintenance approaches the Magistrate with a plea for relief under section 125 of the code. The claim can succeed only if the three ingredients contemplated in the provision exist, namely, that the claimant is unable to maintain herself or himself and the person liable to maintain has means to maintain but has neglected or refused to maintain. The provision is intended to by pass the dilatory process of a civil suit for maintenance. A claimant who has no means to maintain herself or himself and is in distress should not be asked to wait till entire gamut of Civil Court process is gone through. Therefore, the Legislature intended to provide a summary, quick and comparatively cheap remedy for the neglected person. Cases under section 125 of the code are expected to be disposed of with all expedition so that if the claim is genuine, relief is granted expeditiously. The concern for the persons in distress is reflected in the decision of the Supreme Court in Savitri v. Govind Singh, 1986(1) All India Hindu Law Reporter 489(SC) where it has been held that the Magistrate in appropriate cases has implied power to pass an interim order of maintenance and that 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 and any prejudice caused by an interim order to the person against whom it is made is minimal as it can be set right quickly after hearing both the parties.

9. Even in a Civil Suit for future maintenance, the Court is required to pass a decree for maintenance from the date of the suit. Ordinarily, Courts look to the state of affairs, prevailing on the date of the suit. Where a litigation is prolonged unduly, either on account of the conduct of the opposite party, or on account of the heavy docket in Court or for other unavoidable reasons, it would be unjust and contrary to the very purpose of the provision to postpone the effectuation of the order to the date of the order. Such postponement deprives the claimant of the benefit of the fruits of a decree which he or she could have obtained through a Civil Court. Looking at the matter from this perspective also, there is justification to say that ordinarily the claimant who seeks an order for maintenance under section 125 of the code shall obtain the relief from the date when she or he approached the Court, i.e. the date of application and only where there are circumstances justifying a contrary view, it can be postponed to the date of the order.

These aspects have been lucidly dealt with by a Full Bench of the Madhya Pradesh High Court in Saroj Bai v. Jai Kumar Jain, II (1995) DMC 589 (FB).

10. I find that the clear intention of the petitioner in the application was to seek m aintenance from the date of the application. It is the substance which matters and not the form. The Revisional Court was factually not correct in observing to the contrary. Considering the fact situation indicated. I feel this is a case where the order is to operate from the date of application. One fact which has weighed with me while deciding the question is the fact that the matter was pending tor about two years in the Courts below. The amount from the date of application till the date of order, if not already paid/shall be so done in six quarterly instalments beginning from March, 1996.

The revision application is allowed to the extent indicated above.