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1999 (1) Crimes 22
MADRAS HIGH COURT
M. Karpagavinayagam, J.
Gnanaselvi & Ors. - Petitioners
versus
Illavarasan - Respondent
Criminal Revision Case No. 567 of 1997
Decided on 27-8-1998
Counsel for the parties:
For the Petitioners: Mr. R. Yashod Vardhan. Advocate.
For the Respondent: Mr. S. Saravanakumar. Advocate.
IMPORTANT POINT
Normal rule is to grant maintenance u/s. 125 Cr. P.C. from the date of application and not from the date of order.
Headnote:Criminal Procedure Code, 1973 - Section 125(2) - Award of maintenance - Question whether it is to be paid from date of or4er or from date of application - Discretion to be exercised with judicial approach - Recording of reason was essential in either case - Mere non mentioning of reason for making order operative from date of application would not automatically invalidate the order - Petitioner filed maintenance petition for herself and for two minor children on 19-6-1995 - Case was dragged On for a long time by respondent - Petitioner was under the care and custody of her mother - Petitioners were entitled to maintenance from date of application.
Held: 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. (Para 25)
Further held: 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 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 or not. (Para 31)
Result : Revision allowed.
ORDER
M. Karpagavinayagam, J. - 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 uf 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 6-31993 and that thereunder 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. 1, 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 I 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 Vardhah, 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 ail 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 straight away 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
