Maintenance under Section 125 Cr.P.C. - From the date of app

Maintenance under Section 125 Cr.P.C. - From the date of application or date of the order

Abstract

 Whether the Applicant wife is 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. Whether the special reasons are required to be recorded by the court for granting maintenance from the date of the application?  The author discusses the legal proposition regarding the date from which the maintenance would be maintainable to the wife in view of the judicial pronouncement of the Hon’ble Apex Court in Shail Kumari Devi and Anr. Vs. Krishan Bhagwan Pathak @ Kishun B. Pathak [AIR2008SC3006] in which the Hon’ble Apex Court observed that the 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 but no special reasons are required to be recorded by the court.

Key Words: Section 125 Cr.P.C., maintenance, family law, Supreme Court, date of order, date of application.

There is difference on opinion among different High Courts on the aforesaid issue. Now first, go through the wordings of sub-section (2) of Section 125 Cr.P.C. which reads as follows:

“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”

Now, the question arises, should there be some justification on the part of the Court, if it chooses in making the order of maintenance from the date of the application rather than from the date of the order. There is cleavage of opinion among different High Courts on this legal issue.

One view-Maintenance from the date of order: 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 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, Lachhmani v. Ramu (1983) 1 Crimes 590 MP, Qamruddin v. Smt. Rashida Smt. Rashid, Shyamlal v. Mansha Bai 1998 CrLJ 2704 (Raj), Samaydin v. State of U.P. and Anr.]

In Bijay Kapri v. Smt. Kanishta Devi and Anr. (2000) 2 PLJR 241, 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 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

In Samaydin v. State of U.P. and Anr, 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.

Other view-Maintenance from the date of application: However, some High Courts have taken a contrary view; they 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.

In Gnanaselvi and Ors. v. Illavarasan, 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 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: 1988CriLJ1745 that "justice cries in silence for long, far too long".

In Amarjit Kaur v. Sartaz Zingh, 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.

In K. Sivaram v. K. Mangalamba and Ors. In K. Sivaram, 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 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].

In Krishna Jain v. Dharam Raj, 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 Code. It overruled Mohd. Inaytullah Khan, Rameshwar and Lachhmani supra 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. Regarding the 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 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.”

However, the aforesaid controversy with respect to the date from which the maintenance is payable has come to rest by the landmark decision of the Hon’ble Supreme Court in the case of Shail Kumari Devi and Anr. Vs. Krishan Bhagwan Pathak @ Kishun B. Pathak AIR2008SC3006 in which the Hon’ble Supreme Court has not agreed to view 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 in case magistrate intents to pass such an order, he is required to record reasons in support of such order. The magistrate is not required to record special reasons, if he intends to order maintenance from the date of application as there is nothing in Section 125 (2) which requires so. However, the magistrate must record reasons as envisaged by Sub-section (6) of Section 354 of the Code in support of the order passed by him. Finally, the apex court held 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. 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.”

Thus, from the aforesaid judgment of the Apex Court, the following point emerges:

(i)                  It is incorrect to say 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 in case magistrate intents to pass such an order, he is required to record reasons in support of such order.

(ii)                The Magistrate has the discretion to grant maintenance from the date of application or date of order.

(iii)               For awarding maintenance from the date of the application, express order is necessary but no special reasons are required to be recorded by the Court.