Calcutta High Court
Sankar Prosad Ghosh vs Lakshmi Rani Ghosh on 10 December, 1997
Equivalent citations: II(1998)DMC53
Author: Bhaskar Bhattacharya
Bench: Bhaskar Bhattacharya
JUDGMENT Bhagabati Prosad Banerjee, J.
1. In view of two conflicting decisions of two learned Single Judges of this Court regarding the date from which order for maintenance could be passed by the learned Magistrate under Section 125 of the Code of Criminal Procedure, this matter has been referred to the Division Bench for examining the scope of power of the learned Magistrate under Section 125 of che Code of Criminal Procedure and as to the date from which the learned Magistrate could pass order for maintenance. In.an unreported decision of the Hon'ble Justice A.K. Chatterjee (as His Lordship then was) in Criminal Revision No. 1518 of 1989 in the case of Sankar Ganguly v. Saranta Ganguly, on 15th May, 1990, it was held that the order passed by the learned Magistrate giving retrospective effect to the order or maintenance from the date of the application could not be supported which had the effect of saddling the husband with the liability to pay arrear maintenance to his wife. It is further observed by the said learned Single Judge that ordinarily an order for payment of maintenance should take effect from the date of order and it is only in exceptional circumstances that it could be given retrospective effect, i.e. from the date of filing of the application. The learned Single Judge also proceeded to'hold that the learned Magistrate has not recorded any special reason for giving retrospective effect to the order.
2. The other order which was placed before this Court is the order of maintenance under Section 125 of the Cr. P.C. from the date of application. In an unreported judgment delivered by R. Bhattacharyya, J. in the case of Smt. Rupali Tunga v. Naba Kumar Tunga, in Criminal Revision No. 1794of 1992, on 11th March, 1993, the learned Single Judge has held that the order of maintenance should be given from the date of the application and while deciding the case, R. Bhattacharyya, J. disagreed with the view taken by A.K. Chatterjee, J. (as His Lordship then was).
3. In order to appreciate the controversy, it is necessary to refer to the relevant provisions of Section 125(2) of the Code of Criminal Procedure which provides "Such allowance shall be payable from the date of the order or, if so order from the date of the application for maintenance'.
4. Mr. Amit Talukdar contended that in each and every case the order for maintenance on the application of the wife could only be passed by the Court from the date of the order and not from the date of filing of the application and that the Court has power to direct payment of maintenance allowance from the date of the application is an exception and could only be exercised only in exceptional cases for which reasons has to be recorded. It was further submitted that by the learned Counsel appearing on behalf of the petitioner-husband that the husband could not be saddled liability to make payment of the maintenance with retrospective effect that would result in great hardship to the husband petitioner. On the basis of the language used in Section 125(2) of the Code of Criminal Procedure, it is clear that in case nothing is indicated in the order and if it is not indicated in the order passed by the learned Magistrate that such allowance shall be payable from the date of the application it would be payable from the date of the order or in other words, if the order is silent about the date from which it is payable, it should be payable from the date of the order and the learned Magistrate is also empowered to direct payment from the date of the application for maintenance.
5. The provision of Sections 125 to 128 of the Code constituting a complete Code for itself. In the absence of specific direction that the allowance should be paid from the date of the application it would be from the date of the order. In our view, there is no requirement to record reasons special or otherwise for passing an order with effect from the date of the application which was filed by the wife for maintenance. The section does not require recording of reasons for awarding maintenance from the date of the application. If the Court specifically orders for payment of maintenance from a date of the application it is not necessary to record reasons in writing for such decision.
6. Even if a statute is passed to protect public sometimes hold retrospective or in other words it is a well-settled principle that if a statute is passed for the purpose of protect the public against some evil or abuse it may be allowed to operate retrospectively although by such operation it will deprive some person or persons of a vested right. In R. v. Vine, reported in (1875) LR10 QB 175, it was held that Section 14 of the Wine and Bear House Amendment Act, 1870, which enacted that "every person convicted of felony shall be for ever disqualified from selling spirits by retail", applied to a person who after having been so convicted, had obtained a licence to sell spirits it was actually held at the time when the Act came into force. The intention of the Act was construed to be to protect the public from having inns kept by persons of bad character although this might have a retrospective effect.
7. The provision of Section 125 of the Code of Criminal Procedure was enacted for availing remedy to claim maintenance. The object is for providing maintenance to prevent vagrancy by compelling a person to support his wife or child or father or mother, unable to support itself and the object is not to punish but to extend the principles of social and economic justice enshrined in the preamble of the Consti- tution which is one of the basic structure of the Constitution. The object of Section 125 is also to secure maintenance for a woman or her child speedily. This power is conferred upon a learned Magistrate who is also required to decide whether it would be given from the date of the application.
8. In our view, the applicant for maintenance under Section 125 of the Cr.P.C. should be safeguarded against unnecessary prolongation of the litigation as in the case of a wife who is not maintained by the husband or a child not maintained by his parent or a mother who is not maintained by his able children, the applicants have a right to maintenance. In such a case the wife's only means of livelihood unless it is shown that the wife has income, the maintenance to be given by the husband in terms of the order of the Court when the husband fails to discharge his duties. When the wife has a right of maintenance or in other words when his right to lift and livelihood is dependent upon the grant of allowances under Section 125 of the Code of Criminal Procedure, the learned Magistrate has not to record it that there are special circumstances for which the right of maintenance has to be given from the date of the application and it has to bear in mind that in a case where the husband fails and neglects to maintain the wife and the wife is unable to maintain herself and wife files an application and normally the learned Magistrate should pass an order keeping in view of the concept of social and economic justice to want it from the date of the application and that it is only in case the learned Magistrate do not indicate any date in the order in order to avoid any complication it is to be effective from the date of the order. The modern welfare states believes it to be for the people's own good that they should not be exposed to any risk of being over-reached. In order to prevent the wife suffering from poverty and injustice by reason of the fact that the husband had not made any adequate provision for her maintenance the provisions of Section 125 having enacted to mitigate the hardship and the suffering of the wife who is unable to maintain herself. In construing a provision of a statute the Court should promote the remedy the Parliament has provided to cur? a particular mischief by means of adopting a purposive construction and it is presumed to be the legislator's intention that the Court when considering in relation to the facts of the instant case which of the opposing constructions of the enactment corresponds to its legal meaning, should assess the likely consequences by adopting each construction both to the parties and in the case and for the law generally. If on balance the consequences of a particular construction are more likely to be adverse than beneficient this is a factor telling against that construction. The view expressed by A.K. Chatterjee, J. (as His Lordship there was) in our view is not correct. In view of the fact that if an order is passed by the learned Magistrate effective from the date of the application it is not a penalty nor it is saddled with the liability upon the husband. Maintenance of the wife is not only a liability of the husband as it is his duty which is not only social but legal and the statute has been passed for protecting the weaker section of the community namely, the wives, children and parents who are unable to maintain themselves by deliberately with-holding the subsistence allowances, the Court has been empowered by the Parliament to protect against such evil or abuse in that event, a person who is found to be guilty of not discharging his social and statutory duties cannot be given any benefit and he cannot be allowed to be enriched in the manner it was sought to be given and in such cases, the learned Magistrate should pass the order from the date of the application for maintenance unless of course it could be established that the applicant was guilty for the delay and on the contrary if the provisions are prolonged because of circumstances beyond the control of the applicant in that event, in each and every case, it should be given effect from the date of the application. Thus we are unable to hold that giving effect to the order of the maintenance from the date of the order should be given in an exceptional circumstances on the contrary we are of the view that in exceptional circumstances it would be giving effect to from the date of the order. The view, we are taken, is consistent with the principles of social and economic justice and on plain meaning of this section under consideration. Accordingly, we have no hesitation in holding from the remaining portion.