Madras High Court
Gnanaselvi And Ors. vs Illavarasan on 27 August, 1998
Equivalent citations: 1999(1)ALT(CRI)134, 1999CRILJ1008
Author: M. Karpagavinayagam
Bench: M. Karpagavinayagam
ORDER M. Karpagavinayagam, J.
1. 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 is Section 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 Varalakshmi 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.
(c) 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 maintenances 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 Section 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 straightway 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 from 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, Section 354(6) Cr. P.C. is quite relevant. Under this section, every final order made under Section 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 oh 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 support of this submission, he cited the decision rendered in Mohd. Ismail v. Smt. Bilquees Bano (1997) 4 Crimes 154 : 1998 Cri LJ 2803 Allahabad High Court. The relevant observation is this (at p. 2805 of Cri LJ):-
A perusal of Sub-section (2) of Section 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 Section 125, Cr. P.C. This sort of interpretation is an attempt to insert and introduce something new in the subsection, which the legislature never intended. In view of Section 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 Smt. Savitri v. Govind Singh Rawat , 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 Cri LJ 2758 (Bombay); (2) Krishna, Jain v. Dharam Raj Jain 1992 Cri LJ 1028 (Madh Pra); and (3) Nacchattar Singh v. Harjinder Kaur 1995 Cri LJ 2726 (Punj. & Hry.)
21. The meaning of the wordings of Section 125(2) Cr. P.C. has to be understood, in the light of the scope and object of the provisions of Section 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. Section 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 the children.
22. The legislation in its 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 use to allow the proceedings to go on by raising some objection or the other. Invariably the lower Courts are insisted to give decision on the said objection by passing an order. Once the said order is passed even before the commencement of the enquiry under Section 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 Section 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. Dude v. Shiv Shankar , it is noted with deep concern that "justice cries in silence for long, far too long.
24. When the unfortunate wife knocks at the doors 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 of which she approached the Court with an application under Section 125, Cr. P.C. mere non-rnentioning 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 an order granting maintenance from the date of application. In cases, 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 given 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 8-11 -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 hearing, 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 conies to the Court with the claim that she is not able to maintain herself. Even for this order, this 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 exceptional, it has necessarily to give special reasons 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 of 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.