Andhra HC (Pre-Telangana)
Dasyam Elizabath Rani And Ors. vs Dasyam Pradeep Kumar And Ors. on 29 August, 2000
Equivalent citations: 2000(2)ALD(CRI)539, 2001CRILJ47
JUDGMENT T. Ch. Surya Rao, J.
1. This Revision Case is directed against that part of the Order directing, the maintenance granted in favour of the petitioners to be paid from the date of the Order by the learned Judge, Family Court, Vijayawada, by his Order dated 28.10.1995 in M.C.No.98 of 1995.
2. A short, but, an important point that might often crop up for adjudication, well neigh in every proceeding under Section 125 of the Criminal Procedure Code ("the Code" for brevity), as to whether the maintenance allowance shall be paid from the date of order or from the date of application, arises in this case for adjudication.
3. The factual matrix germane for effective adjudication of the point involved in this case may be stated thus:
The Revision Petitioners, claiming to be the wife and the minor children respectively, initiated proceedings under Section 125 of the Code against the respondent claiming maintenance at the rate of Rs.500/- each from the date of petition, on the premise that the respondent being the husband of the first petitioner and father of petitioners 2 and 3, neglected and refused to maintain them after having addicted to bad vices and developed illicit intimacy with one Kalapala Bala of Pottipadu Village. It was further averred that he used to ill-treat the first petitioner and demand her to bring monies from her mother and used to spend his salary income for his luxuries, and that ultimately, he deserted the petitioners and started living with his concubine the said Bala, and that the petitioners were unable to maintain themselves.
The respondent resisted that petition by filing a counter mentioning, inter alia, while denying the allegations made against him, that the mother of the first petitioner is encouraging her to initiate legal action against him so as to grab his meagre salary and that he has no objection to maintain the petitioners, if they join him and that he is not capable of maintaining them separately.
4. The learned Judge, Family Court, Vijayawada, formulated the following points for consideration:
1) Whether the respondent is guilty of deserting the petitioners?
2) Whether the respondent has means to maintain the petitioners?
3) To what relief?
5. After having considered the evidence, both oral and documentary, the learned Judge allowed the petition while directing the respondent to pay maintenance at the rate of Rs.500/- each to the petitioners per month, however, directed the maintenance to be paid from the date of the Order, on or before 15th of each month, while refusing to order any payment of costs. That Order directing the respondent to pay maintenance allowance to the petitioners at the rate of Rs. 500/- to the petitioners has become final as having not been challenged under any revision.
6. Having been aggrieved by that part of the Order, as aforesaid, directing the maintenance to be paid from the date of the Order, the petitioners preferred the present Revision Case.
7. For brevity and better understanding of the matter, it is expedient here to extract, Sub Section (2) of Section 125 of Code, the provision germane in the context for consideration, here under thus:
"125. Order for maintenance of wives, children and parents: -
(1) .................................
(2) Such allowance shall be payable from the date of the order, or if so ordered, from the date of the application for maintenance."
8. A mere glance of the said provision would reveal that the allowance ordered to be paid by the Magistrate shall be payable from the date of the Order or, if so ordered, from the date of the application. Going by a plain consideration of the said provision, the Courts dealing with these matters might proceed on the assumption that in the ordinary course, the maintenance shall be directed to be paid from the date of the order and, in exceptional cases for reasons to be recorded it shall be directed to be paid from the date of the petition Turning to the law on the point, in KANWAR DANG Vs. VASUDEO DANG, 1977 Crl. L.J. 1008 the Himachal Pradesh High Court held in para 12 as follows:
"It was also submitted by the learned counsel for the son that the maintenance should have been fixed from the date of the application instead of from the date of decision. In this behalf, reference may be made to sub-section (4) of Section.488, which reads as:
'Such allowance shall be payable from the date of the order or if so ordered from the date of the application made'.
In the instant case the learned Magistrate has ordered the payment of the maintenance from the date of his order that is, 30.06.1975 and the law says that it shall be payable from the date of order unless it is so ordered that it shall be payable from the date of the application."
Sub-section (4) of Section 488 under the Old Code is in pari materia with sub-section (2) of Section 125 of the New Code. Without laying the proposition on some intelligible criteria, the Himachal Pradesh High Court proceeded on the premise that the Magistrate has exercised his discretion, which cannot be said to be arbitrary. In the facts and circumstances of that case, the order might be justified. But, that cannot be the uniform principle in all cases. One thing is obvious from the said Judgement that it is the discretion of the Court, which has to be exercised but not in arbitrary manner.
In MAKHDUM ALI Vs. NARGIS BANO AND ANOTHER, 1983 Crimes vol.1 the Delhi High Court had an occasion to consider this aspect. In a short Judgement, the Delhi High Court held in para 3 that there ought to be compelling reasons before the wife is deprived of maintenance from the date of the application and since no reasons have been given by any of the two Courts below, the High Court ultimately directed the maintenance allowance shall be paid from the date of the application. An altogether different approach has been taken by the Delhi High Court.
In yet another Judgement in K.U.LACHAMANI Vs. RAMU, 1983 Crimes 1 590 the Madhya Pradesh High Court held that under Section 125(2) of the Code the grant of allowance shall normally to be from the date of the Order alone and in case the normal rule is not intended to be followed, then the Court concerned may well grant the allowance from the date of the application but such order should be backed by some reason to support the same. On facts, considering the status of the father, the Court directed the maintenance to the minor child to be paid from the date of the Order.
In KRISHNA JAIN Vs. DHARAM RAJ JAIN, 1992 Crl.L.J. 1028 the Madhya Pradesh High Court held that there is no rule that normally the maintenance be awarded from the date of Order only and if it is awarded from the date of the application, recording of reasons is necessary. The Court further held that recording of reasons is essential in either case namely when the maintenance is granted from the date of the application or from the date of Order.
In GNANASELVI Vs. ILLAVARASAN, 1999 Crl.L.J. 1008 the Madras High Court held that the normal rule to grant maintenance is from the date of the application and not from the date of the Order and it is only where there are exceptional cases for valid reasons it is open to the Magistrate to grant maintenance from the date of order. Relying upon Section 354(6) of the Code the Madras High Court held that the final order to be made under Section 125 of the Code should contain the point or points for determination of decision thereon and the reasons for the decision and, therefore, the Court is required to support its decision on every point for determination with reason. In para 12 of its Judgement, the Court formulated the points for determination in every maintenance case as under:
"(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?"
The case law on the point has been reviewed including the Judgement of the Madhya Pradesh High Court (5 supra) in Krishna Jain's case. Thus there appears to be some cleavage of opinion on the point germane for adjudication in this case from various High Courts.
9. As discussed supra, a plain reading of sub-section (2) of Section 125 of the Code shows that the allowance shall be payable from the date of Order or if it so ordered, from the date of application. There is nothing in the said sub-section, in my considered view, to show that the allowance shall be normally payable from the date of Order. When sub-section (2) of Section 125 of the Code gives an option to the Court to grant maintenance either from the date of Order or from the date of application, it is indicia that the discretion is vested with the Court. Once the Court is given the discretion, it is for the Court to exercise its discretion in a judicious manner, but, not arbitrarily. Therefore, the Court is obliged to give reasons for exercising its discretion in either way. When that be the plain meaning of sub-section (2) of Section 125 of the Code, it is difficult to import the words, which have not been there in the said sub-section, so as to say that ordinarily the maintenance shall be granted either from the date of Order or from the date of application. Such construction of sub-section (2) of Section 125 of the Code negates the intention of the parliament in giving discretion to the Court. That apart, once the discretion is vested with the Court, that cannot be taken away by inflexible rule that it shall be exercised in a particular manner. Having due regard to the object in incorporating the provision enabling the destitute to claim maintenance in the Court; having due regard to the aspect that this provision is in addition to the regular right to claim maintenance by the distitutes from the persons responsible for paying the maintenance allowance under the personal laws of the parties; and having due regard to the other aspect that it is the discretion of the Court either to grant maintenance from the date of Order or from the date of the application, by no stretch of the imagination it can be said, in my considered view, that it is an ordinary rule to direct the maintenance allowance to be paid either from the date of Order or from the date of the application It is appropriate here to consider the dictum of the Apex Court in TATA ENGINEER & LOCOMOTIVE CO. LTD Vs. STATE OF BIHAR, wherein the Apex Court held in para 15 as follows:
"Statues, it is often said, should be construed not as theorems of Euclid but with some imagination of the purposes which lie behind them and to be too literal in the meaning of words is to see the skin and miss the soul. The method suggested for adoption, in cases of doubt as to the meaning of the words used is to explore the intention of the legislature through the words, the context, which gives the colour, the context, the subject matter, the effects and consequences or the spirit and reason of the law. The general words and collocation or phrases, howsoever wide or comprehensive in their literal sense are interpreted from the context and scheme underlying in the text of the Act."
In many a case, the point as to whether the maintenance ordered shall be paid from the date of the Order or from the date of petition is not attracting the attention of the Courts. After having adjudicated the contentious issues between the parties inter se, including the quantum of maintenance to be paid, at the end the Courts are directing the respondent to pay the maintenance either from the date of Order or from the date of petition, virtually not considering the same as a point for adjudication. Thus, the discretion is being exercised by the Courts in either way without addressing themselves to the importance of the point to be decided on some intelligible criteria relevant for an effective adjudication of the same. The proceedings under Section 125 of the Code are meant to prevent the vagrancy and to provide immediate succour to the deserted and neglected wife and children of the persons who are entitled to claim maintenance under Section 125 of the Code. The proceedings are summary in nature and are required to be adjudicated as expeditiously as possible.
It may be mentioned here that the parties are entitled to claim maintenance in accordance with their personal laws before the Civil Courts by filing a properly constituted suit. They can claim maintenance - past as well as future - in such proceedings. However, undoubtedly, no such claim for past maintenance can be made in the proceedings under Section 125 of the Code. In civil remedy for maintenance, the parties can claim interim maintenance and also litigation expenses, pending adjudication of their main claim for maintenance. No such provision enabling the parties to claim interim maintenance or litigation expenses is incorporated in the Code. Nor the Criminal Courts are given the inherent powers to meet the ends of justice. Realising the difficulty with all its activism and innovative approach, the Apex Court in SAVITRI Vs. GOVIND SINGH RANE, held that the Magistrate could grant interim maintenance in the proceeding sunder Section 125 of the Code.
A neglected or destitute who is claiming maintenance while seeking to sustain himself or herself should endeavour to adduce evidence necessary in proof of his/her claim. A recalcitrant respondent, who seeks to thwart the claim, might resort to every step to procrastinate the adjudication in favour of the claimants and in the process the proceedings might get dragged for some length of time, which will definitely add to the misery of the claimant and further compound the already existing problem. If these things do not weigh with the Court at the time of final adjudication, if for any reason the Court comes to the conclusion that the Order of maintenance shall be granted in favour of the claimant, it is not a mere case resulting in some loss to the claimant if the maintenance so ordered is directed to be paid from the date of the Order, going by a plain meaning of sub-section (2) of Section 125 of the Code, but indeed would result in travesty of justice. Therefore, it shall be the endeavour of the Court to take every relevant fact into consideration for passing the necessary Order although it is discretionary directing the maintenance to be paid from the date of Order or from the date of petition. But that discretion shall be exercised always and in all circumstances by the Court on sound lines in a judicious manner; having due regard to the backdrop of the case; the length of time occupied by the proceedings; the interim maintenance granted, if any, earlier during the pendency of the proceedings; the capacity of the parties; the requirement of the claimants; and the basic principle of preventing vagrancy.
To adjudicate this matter in a judicious manner, there must be a plea in the first instance and the evidence in support thereof. But, in all most all cases where the maintenance proceedings are being adjudicated by the Courts, no relevant point is being framed for adjudication of this crucial issue as to from what date the parties are entitled to maintenance i.e. either from the date of the petition or from the date of the order.
For the foregoing reasons, it becomes necessary in every case to formulate a point for adjudication apart from the other relevant points germane for consideration, as to whether the claimants are entitled to maintenance from the date of the petition or from the date of the order. Without formulating such a point, the question of adducing evidence relevant for the said purposes would not arise, not to speak of consideration thereof at the end by the Court.
10. For the foregoing reasons, Section 125(2) of the Code shall have to be construed keeping in view the object and the other surrounding circumstances in its plain way without importing any words or reading something, which has not been there in the said sub-section. The provisions under Section 125 of the Code are beneficial provisions, made to prevent the vagrancy and provide a speedy remedy for the destitutes to claim maintenance from the respondents who are obliged under law to pay such allowance. Any interpretation of the said sub-section, if need be, shall be in such a manner, which would ultimately subserve the interest of justice. Therefore, it is not in tune with the intention of the legislature in having enacted sub-section (2) of Section 125 of the Code enabling the Court to order the allowance to be paid either from the date of order or from the date of application. It is always expedient, under the circumstances, to leave this point to be decided by the Court on the basis of evidence adduced on the point either of the parties and by giving its reasons in support thereof.
It is represented by the learned counsel for the revision petitioners that the petition claiming maintenance in this case has been filed initially before the Judicial Magistrate of First Class, but, subsequently has been transferred to the Family Court at Vijayawada after its establishment and has been re-numbered as M.C.No.98 of 1995. It has not been dealt with by the learned Judge, Family Court, any way in his Order. Nor the learned Judge has given any reasons for his conclusion that the maintenance shall be paid from the date of Order. No point has been formulated, while formulating the other two points in regard to the entitlement of maintenance and in regard to the quantum, as to from the date of the petition or from the date of the order. . Therefore, it is expedient to remit the matter back to the Family Court, Vijayawada, for its consideration only on the point of granting maintenance either from the date of Order or from the date of the petition.
In the result, the Criminal Revision Case is allowed and the matter is remitted back to the Family Court, Vijayawada, for fresh consideration in the light of the observations made by this Court supra, as expeditiously as possible, preferably within one month from the date of receipt of a copy of this Order.