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1999 Supreme(Ori) 6
High Court Of Orissa
P. K. TRIPATHY
BIMBADHAR BEHERA - Appellant
Versus
PRATIMAMANI BEHERA - Respondent
CRIMINAL REVISION 524 Of 1996
Decided On : 01/08/1999
A.K.Acharya, D.P.Dhal, J.R.DAS, M.R.NAYAK, P.K.BEHERA, S.K.Nayak
An order for enhancement of maintenance under Section 127 of the Code of Criminal Procedure, 1973, can be made payable from the date of application, as it is not opposed to the statutory provision of law or the scheme of the statute.
Headnote:
CRIMINAL REVISION - MAINTENANCE - ENHANCEMENT - RETROSPECTIVE EFFECT - SECTION 127, CODE OF CRIMINAL PROCEDURE, 1973 - INTERPRETATION - ORDER FOR ENHANCEMENT OF MAINTENANCE CAN BE MADE PAYABLE FROM THE DATE OF APPLICATION - NOT OPPOSED TO THE STATUTORY PROVISION OF LAW IN SECTION 127 OF THE CODE OR THE SCHEME OF THE STATUTE IN CHAPTER IX OF THE CODE.
Fact of the Case:
Petitioner challenged the order of the lower court enhancing the monthly maintenance payable to his wife, arguing that it could not be ordered retrospectively from the date of application and that the enhancement was not justified in the absence of evidence of his income and the wife's evidence.
Finding of the Court:
The court held that an order for enhancement of maintenance can be made payable from the date of application, as it is not opposed to the statutory provision of law in Section 127 of the Code or the scheme of the statute in Chapter IX of the Code. The court also held that the wife's evidence was not necessary to prove the hike in the cost of living, as it was not contested by the petitioner, and that the petitioner's contention that his income was not ascertained was devoid of merit.
Issues: 1. Whether an order for enhancement of maintenance can be made payable from the date of application? 2. Whether the wife's evidence was necessary to prove the hike in the cost of living? 3. Whether the petitioner's contention that his income was not ascertained was valid?
Ratio Decidendi: 1. The court interpreted Section 127 of the Code of Criminal Procedure, 1973, and held that it does not prohibit an order for enhancement of maintenance from being made payable from the date of application. The court also relied on the principle that a beneficial provision of legislation should be given its true meaning and should not be curtailed with irrational logic so as to defeat its object. 2. The court held that the wife's evidence was not necessary to prove the hike in the cost of living, as it was not contested by the petitioner. The court also noted that the wife was a physically handicapped woman and that it would have been too much to expect her to bear the expenses of an expert interpreter. 3. The court held that the petitioner's contention that his income was not ascertained was devoid of merit, as judicial notice could be taken of the minimum salary of a Class IV employee under the Orissa State Electricity Board, and that the petitioner, being a senior employee, must be getting more than that amount.
Final Decision: The court dismissed the revision petition, upholding the lower court's order enhancing the monthly maintenance payable to the wife.
P. K. TRIPATHY, J.
( 1 ) ORDER D/- 13-9-1996 in Misc. Case No. 168 of 1991 under section 127 of the Code of Criminal Procedure, 1973 (in short, 'the Code') of the Court of S. D. J. M. , Balasore is under challenge in this revision.
( 2 ) UNDISPUTED facts in the case are that petitioner and opposite party No. 1 are husband and the wife and opposite party No. 2 is their daughter. Petition under S. 125 of the Code vide Criminal Misc. Case No. 1/93 of 1982 filed by opposite party claiming maintenance was allowed on 1-6-1993 and monthly maintenance of Rs. 150/- and Rs. 70/- was ordered to be paid to opposite party Nos. 1 and 2 respectively. On the grounds of increase of the cost of daily use commodity and hike in the cost of living on 3-7-1991 petition under S. 127 of the Code for enhancement of monthly maintenance was filed by the opposite parties which was registered as Misc. Case No. 169 of 1991. During pendency of that Misc. Case opposite party No. 2 married and therefore, petition for enhancement of maintenance was not pressed for her. Opposite party No. 1 who prayed for enhancement of maintenance is the deserted wife of the petitioner and a physically handicapped woman being a dumb. Petitioner contested the said claim on the grounds that there is no justification for enhancement, good relationship developed between herself and opposite party No. 1, one Madan Bhakta, one of the brothers of the opposite party No. 1 is instrumental for the litigations between the parties. Petitioner is ailing person and because of large number of dependants and meagre income from salary he may not be able to pay maintenance at any enhanced rate.
( 3 ) AT the time of enquiry one Braja Mohan Bhakta, a brother of opposite party No. 1 deposed in her favour as the solitary witness and petitioner deposed in support of his case as O. P. No. 1. No other evidence was tendered from either side. On assessment of evidence in record, learned S. D. J. M. , Balasore allowed enhancement of maintenance from Rs. 150/- to Rs. 300/- in favour of opposite party No. 1 making it payable from the date of application i. e. 3-7-1991.
( 4 ) MAIN thrust of argument advanced on behalf of the petitioner was that maintenance at the enhanced rate could not have been ordered to be paid retrospectively from the date of application. It was also argued that in the absence of evidence of opposite party No. 1 and in the absence of positive evidence showing the quantum of monthly income of petitioner, learned Magistrate should not have allowed the prayer for enhancement of maintenance. Aforesaid argument of the petitioner was repelled by the counsel for the opposite parties, who supported the impugned order.
( 5 ) KEEPING in view the objection raised by the petitioner regarding allowing enhancement of maintenance with effect from the date of application for the sake of convenience, reference may be made to relevant portions of Ss. 125 and 127 of the Code which are quoted as hereunder :-"125. Order for maintenance of wives, children and parents.- (i) If any person having sufficient means neglects or refuses to main-tain - (a) his wife, unable to maintain herself, or (b) to (d) x x x x x x a Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, father or mother, at such monthly rate not exceeding five hundred rupees in the whole, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to time direct : Provided that x x x x x x x Explanation - x x x x x x x (2) Such allowance shall be payable from the date of the order, or, if so ordered, from the date of the application for maintenance. (3) to (5) x x x x x x x x x 127. Alteration in allowance - (1) On proof of a change in the circumstances of any person, receiving under section 125 a monthly allowance, or ordered under the same section to pay a monthly allowance to his wife, ch
