REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.  4666     OF 2008 ARISING OUT OF

SPECIAL LEAVE PETITION (CIVIL) NO.17260 OF 2007

SHAIL KUMARI DEVI & ANR. … APPELLANTS

VERSUS

KRISHAN BHAGWAN PATHAK @ KISHUN B. PATHAK … RESPONDENT  

J U D G M E N T C.K. THAKKER, J. 1. Leave granted.

2. The  present  appeal  is  filed  by

appellant No.1-wife and appellant No.2-daughter

of  respondent  herein-Krishan  Bhagwan  Pathak.

The appellants have approached this Court being

aggrieved by the judgment and order passed by

the High Court of Judicature at Patna on May 3,

2007 in Criminal Revision No. 67 of 2007. By

the said order, the High Court partly allowed

the  revision filed  by the  respondent-husband

and modified the order passed by the Court of

Principal  Judge,  Family  Court,  Bhojpur  on

October 30, 2006 in Miscellaneous Case No. 280

of 1997, renumbered as No.1 of 2005.

3. Shortly stated the facts of the case

are that the marriage between appellant No.1

and the respondent was solemnized according to

Hindu rites, customs and ceremonies before more

than three decades. From the said wedlock, nine

children were born. Appellant No.2-Kumari Babli

is the youngest among all and she is the only

child staying with her mother-appellant No.1.

At the time of filing of the application, she

was of twelve years.

4. On July 21, 1997, the appellants filed

a case for maintenance in the Court of Chief

Judicial Magistrate, Bhojpur under Section 125

of  the  Code  of  Criminal  Procedure,  1973

(hereinafter referred to as ‘the Code’) (Misc.

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Case No. 280 of 1997) claiming maintenance of

Rs.500/- p.m. for appellant No.1 and Rs.500/-

p.m. for appellant No.2. It was the case of the

appellant No.1 that her husband had neglected

to maintain his wife-appellant No.1 as also his

legitimate daughter-appellant No.2. On November

20,  1999,  an  application  was  filed  by  the

appellants  requesting  the  Court  to  grant

‘interim’  maintenance during  the pendency  of

proceedings before the Court. The learned Chief

Judicial  Magistrate  allowed  the  said

application,  granted  the  prayer  and  fixed

interim  maintenance  at  the  rate  of  Rs.300/-

p.m. for each of the applicants with effect

from  February  12,  1998.  The  parties,

thereafter, led the evidence which was closed

on September 3, 2001 and the case was adjourned

for  final  arguments.  During  the  pendency  of

proceedings, however, Family Court came to be

established and the case was transferred to the

Principal Judge, Family Court, Bhojpur.

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5. From the evidence, it was clear that

the respondent was working as Cashier with the

State  Bank  of  India,  Bihita  Branch  and  was

getting  gross  salary  of  Rs.18,508-98.  After

deduction, his pay packet was of Rs.9,831-76.

The respondent retired from service in January,

2006.  The  appellants  filed  a  petition  on

September 12, 2006 with a prayer to direct the

respondent to pay arrears of maintenance which

came to Rs.11,600/- and the Family Court on

October 30, 2006, allowed the application and

directed  the  respondent  to  pay  the  entire

amount of the arrears in lump sum by the next

date of hearing.

6. The matter was finally disposed of by

the Family Court on November 29, 2006 and the

learned  Principal  Judge  of  the  Family  Court

directed the respondent to pay maintenance of

Rs.2,000/-  p.m.  to  applicant-appellant  No.1-

wife and Rs.1,000/- p.m. to applicant-appellant

No.2-minor daughter with effect from the date

of application i.e. July 21, 1997 with further

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order to pay arrears within three months of the

order  after  deducting  the  amount  which  had

already  been  paid  under  the  interim  order

passed by the Court earlier.

7. The  appellant  was  dissatisfied  with

the order passed by the Principal Judge of the

Family  Court and  preferred Criminal  Revision

No. 67 of 2007 in the High Court.

8. The  High  Court  partly  allowed  the

Revision and modified the direction issued by

the Family Court. The High Court reduced the

amount  of  maintenance  from  Rs.2,000/-  to

Rs.750/-  to  appellant  No.1-wife  and  from

Rs.1,000/-  to  Rs.750/-  to  appellant  No.2-

daughter. The High Court also directed that the

amount of maintenance would be payable to the

applicants-appellants not from the date of the

application  i.e. July 21, 1997 but from the

date of the order i.e. November 29, 2006. The

said order is challenged by the appellants in

the present appeal.

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9. On September 5, 2007, the matter was

placed for admission hearing. Delay of eight

days  in  filing  Special  Leave  Petition  was

condoned  and  notice  was  issued  to  the

respondent.  Considering  the  nature  of  the

litigation,  the  Registry  was  directed  by  an

order dated April 16, 2008 to place the matter

for final disposal on a non-miscellaneous day

and that is how the matter is placed before us.

10. We have heard learned counsel for the

parties.

11. Learned  counsel  for  the  appellants

contended  that  the  High  Court  was  wrong  in

partly  allowing  Revision  filed  by  the

respondent  and  in  modifying  the  directions

issued by the Family Court. It was submitted

that  the  High  Court  was  in  clear  error  in

reducing the amount of maintenance to appellant

No.1-wife  and  appellant  No.2-daughter.

Similarly,  the  High  Court  was  in  error  in

holding that the appellants were not entitled

to maintenance from the date of application but

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only  from  the  date  of  order  passed  by  the

Court. It was, therefore, submitted that the

order passed by the High Court deserves to be

set aside by restoring the order of the Family

Court.

12. The  learned  counsel  for  the

respondent, on the other hand, supported the

order passed by the High Court. It was urged

that the Family Court was not right in granting

maintenance to the appellants from the date of

application. It was submitted that the Family

Court was again wrong in allowing maintenance

of more than Rs.500/- either to appellant No.1-

wife or to appellant No.2-daughter before 2001

when the relevant provisions of law (Section

125  of  the  Code  as  it  then  stood),  allowed

Rs.500/- p.m. as maximum amount of maintenance.

The  High  Court  was,  therefore,  justified  in

reducing the amount as also issuing direction

to make payment from the date of the order. It

was also urged that no ‘interim’ maintenance

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could have been awarded before the amendment in

the Code in 2001.

13. The  counsel  submitted  that  even  on

merits, the Family Court was not justified in

ignoring the evidence on record and in granting

maintenance  to wife  observing that  appellant

No.1  was  unable  to  maintain  herself.  The

evidence  clearly  revealed,  submitted  the

counsel, that some of the properties of the

respondent-husband  were  with  the  appellant

No.1-wife. She has also inherited land from her

father. Those facts, therefore, ought to have

been taken into account by the Family Court in

fixing the amount of compensation. On all these

grounds, it was submitted that no interference

in the order passed by the High Court is called

for in exercise of discretionary jurisdiction

under Article 136 of the Constitution and the

appeal deserves to be dismissed.

14. Three  questions  arise  for  our

consideration; (i) whether interim maintenance

could be awarded in absence of specific and

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express provision in the Code; (ii) whether the

applicant-wife and her daughter are entitled to

maintenance from the date of the order passed

by  the  Family  Court  or  from  the  date  of

application made by them under Section 125 of

the Code; and (iii) what could be the amount of

maintenance  which  could  be  awarded  by  the

Court.

15. Before  we  proceed  to  consider  these

questions,  it  would  be  appropriate  if  we

examine the relevant provisions of law. Sub-

sections  (1)  and  (2)  of  Section  125  of  the

Code, as they were originally enacted in 1973,

read thus: 125.Order  for  maintenance  of  wives, children  and  parents.-  (1)  If  any person  having  sufficient  means neglects or refuses to maintain-

(a)  his  wife,  unable  to  maintain herself, or

(b)  his  legitimate  or  illegitimate minor child, whether married or not, unable to maintain itself, or

(c)  his  legitimate  or  illegitimate child (not being a married daughter) who has attained majority, where such

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child is by reason of any physical or mental abnormality or injury unable to maintain itself, or

(d)  his father or mother, unable to maintain himself or herself,

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 the Magistrate may order the  father  of  a  minor  female  child referred to in clause (b) to make such allowance,  until  she  attains  her majority,  if  the  Magistrate  is satisfied  that  the  husband  of  such minor female child, if married, is not possessed of sufficient means.

Explanation.- For the purposes of this Chapter, -

(a) "minor" means a person who, under the provisions of the Indian Majority Act, 1875( 9 of 1875) is deemed not to have attained his majority;  

(b)  "wife" includes a woman who has been  divorced by, or has obtained a divorce from, her husband and has not remarried.

(2)  Such  allowance  shall  be  payable

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from the date of the order, or, if so ordered,  from  the  date  of  the application for maintenance.

     (emphasis supplied)

16. Bare  reading  of  sub-section  (1)  of

Section 125 leaves no room for doubt that if

any person having sufficient means, neglects or

refuses to maintain his wife who is unable to

maintain  herself  or  his  legitimate  (or

illegitimate)  child  (children)  unable  to

maintain itself (themselves), or his father, or

mother, unable to maintain himself or herself,

a Court, upon proof of negligence or refusal,

order such person to pay maintenance to his

wife or child (children) or parents, as the

case  may  be.  It  is  also  clear  that  maximum

amount which could be ordered to be paid was

Rs.500/-  p.m.  which  was  clear  from  the

expression  “not  exceeding  Rs.500/-  in  the

whole”.

17. It  is further clear that under sub-

section  (2),  such  maintenance  can  be  made

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payable  “from  the  date  of  order”  or  “if  so

ordered, from the date of the application for

maintenance”.

18. By  the  Code  of  Criminal  Procedure

(Amendment) Act, 2001 (Act 50 of 2001), sub-

sections (1) and (2) came to be amended with

effect  from  September  24,  2001.  The  amended

sub-sections now read thus:

125.Order  for  maintenance  of  wives, children  and  parents.-  (1)  If  any person  having  sufficient  means neglects or refuses to maintain-

(a)  his  wife,  unable  to  maintain herself, or

(b)  his  legitimate  or  illegitimate minor child, whether married or not, unable to maintain itself, or

(c)  his  legitimate  or  illegitimate child (not being a married daughter) who has attained majority, where such child is by reason of any physical or mental abnormality or injury unable to maintain itself, or

(d)  his father or mother, unable to maintain himself or herself,

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

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wife or such child, father or mother, at  such  monthly  rate,  as  such Magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to time direct:

Provided that the Magistrate may order the  father  of  a  minor  female  child referred to in clause (b) to make such allowance,  until  she  attains  her majority,  if  the  Magistrate  is satisfied  that  the  husband  of  such minor female child, if married, is not possessed of sufficient means.

Provided  further  that  the  Magistrate may,  during  the  pungency  of  the proceeding regarding monthly allowance for  the  maintenance  under  this  sub- section, order such person to make a monthly  allowance  for  the  interim maintenance of his wife or such child, father or mother, and the expenses of such  proceeding  which  the  Magistrate considers reasonable, and to pay the same to such person as the Magistrate may from time to time direct: Provided also that an application for the monthly allowance for the interim maintenance and expenses of proceeding under the second proviso shall, as far as  possible,  be  disposed  of  within sixty  days  from  the  date  of  the service of notice of the application to such person.

Explanation.- For the purposes of this Chapter, -

(a) "minor" means a person who, under the provisions of the Indian Majority

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Act, 1875( 9 of 1875) is deemed not to have attained his majority;  (b)  "wife" includes a woman who has been  divorced by, or has obtained a divorce from, her husband and has not remarried.

(2)  Any  such  allowance for  the maintenance or interim maintenance and expenses  of  proceeding  shall  be payable from the date of the order, or, if so ordered, from the date of the  application  for  maintenance or interim  maintenance  and  expenses  of proceeding, as the case may be.

         (emphasis supplied)

19. It is apparent that the ceiling which

was fixed under the original enactment of 1973

of Rs.500/- p.m. has been removed and now it is

open to a Court under the amended law to fix

such amount as it ‘thinks fit’.

20. Again, there is no substantial change

so far as the date of payment is concerned.

Under sub-section (2) as originally enacted, it

was  provided  that  such  maintenance  could  be

made payable from the date of the order or if

so ordered, from the date of application. Even

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after  the  amendment  of  2001,  an  order  for

payment of maintenance can be made by a Court

either from the date of the order or where an

express order is made to pay maintenance from

the date of application, then the amount of

maintenance can be paid from that date,  i.e.

from the date of application. 21. So  far  as  ‘interim’  maintenance  is

concerned, it is true that Section 125 of the

Code as it originally enacted did not expressly

empower the Magistrate to make such order and

direct payment of interim maintenance. But the

Code equally did not prohibit the Magistrate

from making such order. Now, having regard to

the nature of proceedings, the primary object

to  secure  relief  to  deserted  and  destitute

wives,  discarded  and  neglected  children  and

disabled  and  helpless  parents  and  to  ensure

that no wife, child or parent is left beggared

and destitute on the scrap-heap of society so

as to be tempted to commit crime or to tempt

others to commit crime in regard to them, it

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was  held  that  the  Magistrate  had  ‘implied

power’ to make such order. The jurisdiction of

the  Magistrate  under  Chapter  IX  (Order  for

Maintenance of Wives, Children and Parents) is

not strictly criminal in nature. Moreover, the

remedy provided by Section 125 of the Code is a

summary remedy for securing reasonable sum by

way of maintenance subject to a decree passed

by a competent civil Court. Hence, in absence

of any express bar or prohibition, Section 125

could  be  interpreted  as  conferring  power  by

necessary implication to make interim order of

maintenance  subject  to  final  outcome  in  the

application. 22. A  direct  question  came  up  for

consideration before this Court in  Savitri v.

Govind Singh Rawat,  (1985) 4 SCC 337 : 1986

CriLJ  41.  The  Court  considered  that  though

there was no specific provision for grant of

interim  maintenance,  considering  the  object

underlying  the  provision  and  social  purpose

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behind the legislation, such a power must be

conceded to the Court.

23. Speaking  for  the  Court,

Venkataramaiah, J. (as His Lordship then was)

observed;

“It is true that there is no express provision in the Code which authorises a magistrate to make an interim order directing  payment  of  maintenance pending disposal of an application for maintenance.  The  Code  does  not  also expressly prohibit the making of such an order. The question is whether such a power can be implied to be vested in a  magistrate  having  regard  to  the nature  of  the  proceedings  under Section  125  and  other  cognate provisions found in Chapter IX of the Code  which  is  entitled  "Order  For Maintenance  of  Wives,  Children  and Parents".  Section  125  of  the  Code confers power on a magistrate of the first class to direct a person having sufficient means but who neglects or refuses  to  maintain  (i)  his  wife, unable  to  maintain  herself,  or  (ii) his  legitimate  or  illegitimate  minor child, whether married or not, unable to  maintain  itself,  or  (iii)  his legitimate or illegitimate child (not being  a  married  daughter)  who  has attained  majority,  where  such  child is,  by  reason  of  any  physical  or mental abnormality or injury unable to maintain itself or (iv) his father or mother, unable to maintain himself or herself, upon proof of such neglect or

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refusal,  to  pay  a  monthly  allowance for  the  maintenance  of  his  wife  or such child, father or mother, as the case may be, at such monthly rate not exceeding five hundred rupees in the whole as such magistrate thinks fit. Such allowance shall be payable from the  date  of  the  order,  or,  if  so ordered  from  the  date  of  the application for maintenance”.

24. Interpreting  the  relevant  provisions

of the Code, putting emphasis on the duty of a

person liable to pay maintenance and applying

the principle of ‘social justice’, His Lordship

proceeded to state;

“In view of the foregoing it is the duty of the court to interpret the provisions in Chapter IX of the Code  in  such  a  way  that  the construction placed on them would not defeat  the  very  object  of  the legislation.  In  the  absence  of  any express  prohibition,  it  is appropriate  to  construe  the provisions  in  Chapter  IX  as conferring  an  implied  power  on  the magistrate  to  direct  the  person against whom an application is made under Section 125 of the Code to pay some  reasonable  sum  by  way  of maintenance to the applicant pending final disposal of the application. It is  quite  common  that  applications

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made under Section 125 of the Code also  take  several  months  for  being disposed  of  finally.  In  order  to enjoy the fruits of the proceedings under  Section  125,  the  applicant should be alive till the date of the final  order  and  that  the  applicant can  do  in  a  large  number  of  cases only  if  an  order  for  payment  of interim maintenance is passed by the court. Every court must be deemed to possess  by necessary  intendment all such powers as are necessary to make its orders effective. This principle is embodied in the maxim ubi aliquid conceditur, conceditur et id sine quo res  ipsa  esse  non  potest (Where anything  is  conceded,  there  is conceded also anything without which the thing itself cannot exist.) (Vide Earl  Jowitt's Dictionary  of English Law  1959  Edn.  P.  1797).  Whenever anything is required to be done by law and it is found impossible to do that  thing  unless  something  not authorised in express terms be also done then that something else will be supplied  by  necessary  intendment. Such a construction though it may not always be admissible in the present case however would advance the object of  the  legislation  under consideration.  A  contrary  view  is likely to result in grave hardship to the applicant, who may have no means to subsist until the final order is passed.  There  is  no  room  for  the apprehension that the recognition of such implied power would lead to the passing of interim orders in a large number of cases where the liability to pay maintenance may not exist. It is  quite  possible  that  such

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contingency may arise in a few cases but the prejudice caused thereby to the person against whom it is made is minimal  as  it  can  be  set  right quickly  after  hearing  both  the parties.  The  magistrate,  may, however,  insist  upon  an  affidavit being filed by or on behalf of the applicant  concerned  stating  the grounds in support of the claim for interim  maintenance  to  satisfy himself that there is a prima facie case for making such an order. Such an  order  may  also  be  made  in  an appropriate  case  ex  parte  pending service of notice of the application subject to any modification or even an order of cancellation that may be passed after the respondent is heard. If  a  civil  court  can  pass  such interim  orders on  affidavits, there is no reason why a magistrate should not rely on them for the purpose of issuing directions regarding payment of interim maintenance. The affidavit may  be  treated  as  supplying  prima facie  proof  of  the  case  of  the applicant. If the allegations in the application or the affidavit are not true, it is always open to the person against whom such an order is made to show that the order is unsustainable. Having regard to the nature of the jurisdiction  exercised  by  a magistrate under Section 125 of the Code, we feel that the said provision should be interpreted as conferring power by necessary implication on the magistrate to pass an order directing a person against whom an application is made under it to pay a reasonable sum  by  way  of  interim  maintenance

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subject  to  the  other  conditions referred  to  there  pending  final disposal of the application”.

 (emphasis supplied)

25. Parliament  considered  the  object  of

the legislation, the decision of this Court in

Savitri and the fact that though the remedy is

of  a  summary  nature,  the  applicant  who  is

unable to maintain herself may have to wait for

‘several years’ for getting such relief. It,

therefore,  amended  the  provision  expressly

authorizing  the  Magistrate  to  grant  interim

maintenance.

26. In  the  Statement  of  Objects  and

Reasons, it was stated;

“It  has  been  observed  that  an applicant, after filing application in a Court under Section 125 of the Code of  Criminal  Procedure,  1973,  has  to wait  for  several  years  for  getting relief  from  the  Court.  It  is, therefore,  felt  that  express provisions should be made in the said Code for interim maintenance allowance to  the  aggrieved  person  under  said Section 125 of the Code. Accordingly, it  is  proposed  that  during  the pendency  of  the  proceedings,  the

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Magistrate  may  order  payment  of interim maintenance allowance and such expenses  of  the  proceedings  as  the Magistrate  considers  reasonable,  to the  aggrieved  person.  It  is  also proposed  that  the  order  be  made ordinarily within sixty days from the date of the service of the notice”.

27. In view of the decision of this Court in  Savitri,  in  our  opinion,  the  learned

Magistrate was right and wholly justified in

ordering interim maintenance by an order dated

November 20, 1998. We see no infirmity in that

part  of  the  order  and  hold  that  interim

maintenance  could  have  been  granted  by  the

learned Magistrate even before the amendment of

Section 125 in 2001. 28. Regarding date from which such amount

should be paid to the appellants, the Family

Court  held  that  the  appellants  would  be

entitled to claim maintenance from the date of

application i.e. July 21, 1997.

29. The Family Court stated;

“This order will be effective from the  date  of  application  i.e. 21.7.1997.  The  opposite  party  is

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directed to pay the arrears within three months of this order and shall pay  the  current  monthly  amount  of maintenance  by  15th of  every succeeding months.”

(emphasis supplied)

30. The  Family  Court  thus  exercised  the

power  under  sub-section  (2)  of  Section  125

which  enables  the  Court  to  make  an  order

whether  the  applicant  would  be  entitled  to

maintenance from the date of the order or from

the date of the application. The Family Court

ordered payment of maintenance from the date of

application.

31. The  High  Court,  however,  set  aside

that part of the order of the Family Court. It,

inter alia, observed; “On a consideration of the aforesaid arguments of the parties, this Court finds  that  the  court  below  has  not considered  the  present  matter  in  a proper manner and keeping in view the purpose of the provisions of Section 125 of the Code. As held in a catena of decisions, the purpose of the said provision is to prevent vagrancy and destitution  and  essentially  to financially support the deserted wife or other to say that her own son has grabbed the property and that she will

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sit back and will take no steps in the matter.  As  a  matter  of  fact,  under Section  125 of the Code of Criminal Procedure  itself, it is the duty of the  son  to  maintain  his  father  and mother, if they are unable to maintain themselves; whereas the court has not even  considered  the  said  fact.  When the  petitioner  has  raised  the  issue that  the  opposite  party  has  income from  the  land  and  house  of  her matrimonial  village,  the  same  ought not to have been ignored by the Court in the manner, which has been done. It raises the strong suspicion that the Court below had made up its mind to disbelieve everything that was stated on  behalf  of  the  petitioner  and believe the contention of the opposite party, which is not the correct way of looking at the evidence that comes in course of the said proceedings. It is for  the  court,  in  such  matter,  to consider the probability of the facts and then to come to a fair conclusion as  to  what  is  the  real  state  of affairs. From the impugned order, it does not appear that any such attempt has been made by the Court below and even the important admission made by the opposite party No.1 has been lost sight of by the Court below.

In  the  aforesaid  view  of  the  matter, this Court does not find that the Court below has rightly looked into the aspect of the matter. The Court below has also not  considered  as  to  what  was  the justification for passing an order for maintenance  from  the  date  of application,  which  goes  back  to  more than 9 years from the date of the order.

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As  laid  down  in  the  decision  of  this Court such an order may be necessitated if  the  party  shows  the  dire  need  of money  for  the  purpose  of  maintaining herself,  for  which  she  had  to  raise debts,  during  the  period  when  the application had been pending.  There is no such material on the record, rather the opposite party was getting interim maintenance  from  November,  1998  itself by order dated 20.11.1998 although as a matter of fact the provision for interim maintenance  has  been  brought  into existence  for  the  first  time  by  the Amendment  Act,  2001  with  effect  from 24.9.2001. However, since the said order is not under challenge, therefore, this Court  would  not  like  to  go  into  that issue any further. In any case, it is a relevant  fact  that  right  from  1998, opposite party Nos. 1 and 2, have been paid interim maintenance, by which they had managed to sustain themselves during that period and thus there is no reason for passing the order to pay maintenance with effect from the date of application going back more than 9 years from the date of passing of the said order.”

(emphasis supplied)

32. The above observations manifestly show

that according to the High Court, there must be

justification on  the  part  of  the  Court  in

making the order of maintenance from the date

of the application rather than from the date of

the order. As there was no such reason granting

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maintenance from the date of the application,

the Family Court was not justified in doing so.

To that extent, therefore, the order passed by

the  Family  Court  was  vulnerable  and

accordingly,  it  was  set  aside  by  granting

maintenance from the date of the order passed

by the Family Court.

33. Now, no direct decision of this Court

is available on the point as to from which date

a Magistrate may order payment of maintenance

to wife, children or parents. We may, however,

refer to decisions of some High Courts.

34. It seems that there is a cleavage of

opinion on the question. According to one view,

since sub-section (2) of Section 125 declares

that  maintenance  shall  be  payable  “from  the

date of the order”, or, “if so ordered, from

the  date  of  application  for  maintenance”,

normal rule is that a Magistrate should pass an

order  directing  payment  of  maintenance  only

from the date of the order. If he decides to

deviate that course and makes an order granting

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maintenance not from the date of the order but

from the date of application for maintenance,

he must record reasons in support of such order

[vide  Mohd.  Inaytullah  Khan  v.  Salma  Bano,

1983  Jab  LJ  55,  Rameshwar  v.  Ramibai,  1987

CrLJ 1952 (MP),  Lachhmani v. Ramu,  (1983) 1

Crimes  590  MP,  Qamruddin  v.  Smt.  Rashida,

(1992)  1  WLC  305  (Raj),  Shyamlal  v.  Mansha

Bai,  1998  CrLJ  2704  (Raj),  Mohd.  Ismail  v.

Bilquees  Bano,  1998  CrLJ  2803  (All),  Nitha

Ranjan  Chakraborty  v.  Smt.  Kalpana

Chakraborty, 2002 CrLJ 4768 (Cal), Samaydin v.

State of U.P. & Anr., 2001 CrLJ 2064 (All)]. 35. The High Court, in the impugned order,

also referred to a decision in Bijay Kapri v.

Smt. Kanishta Devi & Anr., (2000) 2 PLJR 241,

wherein it was held that such order could be

necessitated if the party shows ‘dire need’ of

the  money  for  the  purpose  of  maintaining

herself for which she had raised debts during

the  period  when  the  application  had  been

pending. No such material had been brought on

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record.  Rather,  the  applicants  were  getting

interim maintenance from November, 1998 by an

order  passed  by  the  Magistrate  though  such

provision  of  interim  maintenance  had  been

brought in the statute book for the first time

by the Amendment Act, 2001 with effect from

September 24, 2001. 36. In  Samaydin,  the  High  Court  of

Allahabad  observed  that  there  may  not  be  a

discussion  of  such  circumstances  which

warranted  the  Court  to  allow  it  to  grant

maintenance from the date of application. But,

no other inference is permissible in the light

of the language of sub-section (2) of Section

125. The Court, by way of illustrative cases

considered  certain  situations,  such  as,

‘dilatory tactics adopted by the husband in the

disposal  of the  proceeding’, ‘untold  cruelty

practised  against  wife’,  etc.  In  absence  of

special  circumstances,  however,  maintenance

cannot be ordered from the date of application.

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37. Some other High Courts,  have taken a

contrary  view.  It  was  held  that  normally,

maintenance should be granted from the date of

the application and not from the date of the

order. If the Magistrate  is inclined to make

an order granting maintenance from the date of

the order and not from the date of application,

he should record reasons to do so.

38. In  Gnanaselvi & Ors. v. Illavarasan,

(1999) 1 Crimes 22 (Mad), the High Court of

Madras observed that when the wife approaches a

Court  claiming  maintenance  by  filing

application on the ground that she is not able

to maintain herself, it is for her to prove

such inability from the date of application.

Hence, when the Court ultimately decides after

conducting the inquiry that she is entitled to

maintenance, the said decision must necessarily

be based upon the material showing that the

wife was unable to maintain herself when she

filed  an  application.  As  a  general  rule,

therefore, the Magistrate should pass an order

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directing  maintenance  from  the  date  of

application.  It  was  also  observed  that  the

remedy is a speedy remedy and summary procedure

is  provided  by  the  statute.  Despite  this,

usually, in such proceedings, the Court notices

that the husband does not allow the proceedings

to go on by raising one objection or the other.

The Court is required to deal with all such

objections, which takes time. Again, even after

the order is passed, the husband rushes to the

higher forum and challenges it. Sometimes, he

obtains interim orders which results in further

delay. The deserted wife and children are the

sufferers who seek shelter of the protective

umbrella provided by Section 125 of the Code.

If maintenance is not granted from the date of

application, the weaker sections are sure to

lose confidence in the justice delivery system.

The Court noted the deep concern expressed by

this Court in  P.N. Duda v. P. Shiv Shankar,

(1988) 3 SCC 167 that “justice cries in silence

for long, far too long”.

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39. In Amarjit Kaur v. Sartaz Zingh, 1996

CriLJ 4476 (P&H),  the High Court of Punjab  &

Haryana held that sub-section (2) of Section

125 does not require the Magistrate to record

special reasons for granting maintenance from

the date of application. What it says is that

if the order is silent as to the date from

which such maintenance is payable, it has to be

paid  from  the  date  of  the  order.   Where,

however, the maintenance is to be paid from the

date  of  the  application  itself,  then  there

should be a specific order in that behalf by

the Court. There is nothing in the statutory

provision  to  hold  that  the  Magistrate  must

record special reasons if he is to order that

maintenance shall be payable from the date of

application. 40. In  Krishna Jain v. Dharam Raj Jain,

1992 CriLJ 1028 (MP), the Division Bench of

High  Court  of  Madhya  Pradesh  considered  the

ambit and scope of sub-section (2) of Section

125 in the light of other provisions of the

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Code.  It  overruled  Mohd.  Inaytullah  Khan,

Rameshwar  and  Lachhmani  referred to above and

held that plain reading of sub-section (2) of

Section 125 makes it clear that allowance of

maintenance can be awarded from the date of

the order or from the date of the application.

To hold that, normally maintenance should be

made payable from the date of the order and not

from the date of the application unless such

order  is  backed  by  reasons  would  amount  to

inserting  something  more  in  the  sub-section

which the Legislature never intended. The Court

observed that it was unable to read in sub-

section  (2)  laying  down  any  rule  to  award

maintenance from the date of the order or that

the grant from the date of the application is

an exception. 41. Regarding  recording  of  reasons,  the

Bench observed that in either case i.e. grant

of maintenance from the date of the order or

from the date of the application, the Court is

required to record reasons. The Court referred

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to sub-section (6) of Section 354 of the Code

which reads thus: (6) Every order under Section 117 or sub-section  (2)  of  Section  138  and every final order made under Section 125, Section 145 or Section 147 shall contain  the  point  or  points  for determination,  the  decision  thereon and the reasons for the decision.

     (emphasis supplied)

42. It was, therefore, observed that every

final order under Section 125 of the Code [and

other Sections referred to in sub section (c)

of  Section  354]  must  contain  points  for

determination,  the  decision  thereon  and  the

reasons for such decision.

43. Our  attention was also invited to a

decision  in  K.  Sivaram  v.  K.  Mangalamba  &

Ors.,  1990 CrLJ 1880 (AP). In  K. Sivaram,  a

single  Judge  of  the  High  Court  of  Andhra

Pradesh negatived the argument on behalf of the

husband that the maintenance could be awarded

from the date of the order and such maintenance

could  be  granted  from  the  date  of  the

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application only by recording special reasons.

The  Court  held  that  it  is  the  discretion

conferred on the Court by the Code to award

maintenance either from the date of the order

or from the date of the petition as per the

circumstances of the case. The Code also noted

that wherever Parliament wanted special reasons

to be recorded for passing a particular order,

specific provision has been made to that effect

[See sub-section (3) of Section 167 of the Code

(default bail), Section 361 (refusal to grant

probation) etc]. 44. In  our  considered  opinion,  the  High

Court is not right in holding that as a normal

rule, the Magistrate should grant maintenance

only from the date of the order and not from

the date of the application for maintenance.

And if he intents to pass such an order, he is

required to record reasons in support of such

order. As observed in K. Sivaram, reasons have

to be recorded in both the eventualities. The

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Court was also right in observing that wherever

Parliament intended the Court to record special

reasons,  care  had  been  taken  to  make  such

provision by requiring the Court to record such

reasons.  45.         Moreover, duration of litigation is

not within the power or in the hands of the

applicant and entitlement to maintenance should

not be left to the uncertain date of disposal

of the case. Keeping in view this hard reality,

this Court in Savitri held that in absence of

prohibition to grant ‘interim’ maintenance such

power could be read in the salutary  provision

of Section 125 of the Code ensuring maintenance

to unable wife to maintain herself during the

pendency of proceedings. Even Parliament took

into account the reality and by the Amendment

Act, 2001 express provision has been made for

the purpose.   46.        Again, maintenance is a right which

accrues  to  a  wife  against  her  husband  the

minute the former gets married to the latter.

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It is not only a moral obligation but is also a

legal duty cast upon the husband to maintain

his wife. Hence, whenever a wife does not stay

with her husband and claims maintenance, the

only question which the Court is called upon to

consider is whether she was justified to live

separately  from  her  husband  and  still  claim

maintenance from him? If the reply is in the

affirmative,  she  is  entitled  to  claim

maintenance.  It  is,  therefore,  open  to  the

Magistrate to award maintenance from the date

of  application  and  there  is  nothing   which

requires recording of ‘special reasons’ though

he must record reasons as envisaged by sub-

section  (6)  of  Section  354  of  the  Code  in

support of the order passed by him.

47. We,  therefore,  hold  that  while

deciding an application under Section 125 of

the code, a Magistrate is required to record

reasons  for  granting  or  refusing  to  grant

maintenance  to  wives,  children  or  parents.

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Such maintenance can be awarded from the date

of the order, or, if so ordered, from the date

of the application for maintenance, as the case

may be.  For awarding maintenance from the date

of the application, express order is necessary.

No special reasons, however, are required to be

recorded by the Court.  In our Judgment, no

such requirement can be read in sub section (l)

of  Section  125  of  the  Code  in  absence  of

express provision to that effect.

48. The last question relates to quantum

of  amount  of  maintenance.  The  Family  Court

granted maintenance to the appellants—wife as

well as daughter—at the rate of Rs.2000/- and

Rs.  1000/-  respectively  from  the  date  of

application  i.e. July  21,  1997.  We  have

reproduced the relevant part of Section 125 as

originally  enacted  and  as  amended  by  the

Amendment Act, 2001. Before the amendment of

2001, the ceiling was Rs.500/-. In our opinion,

therefore,  the  Family  Court  could  not  have

granted  maintenance  exceeding  Rs.500/-  p.m

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either to appellant No.1 or appellant No.2 from

the date of application i.e. July 21, 1997. At

the most, such an order could have been made

effective from the date the Amendment Act, 2001

came into force. To that extent, therefore, the

order passed by the Family Court was not in

accordance with law.  

49. But even on merits, the Family court

was  not  right  in  fixing  the  amount  of

maintenance.    The  learned  counsel  for  the

respondent took us to the evidence adduced by

the parties. From the material on record, it is

clear that the appellant No.1-wife is residing

in  the  house  belonging  to  the  respondent-

husband and such finding has been recorded even

by the Family Court.  It is also in evidence

that she was receiving income from the land in

her possession which belonged to her husband-

respondent  herein.  It  is  true  that  the

respondent could not state as to the actual

amount  received  by  the  wife  from  the

cultivation of the land.  But it is also one of

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the  considerations  which  is  relevant  and

material  while  fixing  the  amount  of

maintenance.   Moreover,  appellant  No.1  has

inherited some land from her father.

50. In  view  of  overall  facts  and

circumstances, in our opinion, ends of justice

would  be  served  if  we  hold  that  both  the

appellants  are  entitled  to  an  amount  of

Rs.1000/-  each  per  month  as  maintenance.  As

already  clarified,  the  appellants  would  be

entitled to the said amount of maintenance from

the  date  the  Amendment  Act,  2001  came  into

force. i.e. September 24, 2001.  So far as the

order  of  payment  of  ‘interim’  maintenance

passed by the Magistrate is concerned, the same

was in consonance with law and no interference

is called for.

51. For the foregoing reasons, the appeal

deserves  to  be  partly  allowed  and  is

accordingly  allowed  to  the  extent  indicated

above.

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…………………………………………………J. (C.K. THAKKER)

NEW DELHI, …………………………………………………J. JULY 28, 2008. (D.K. JAIN)

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