cpc

effect of amendment 125 cr.p.c.

advocate

Sir my client was odered to pay Rs 300/- pm to wife, at the time when the maximum maintenance amount was up to Rs 500/-(before the new amendment in Cr.P.C.). Now the new amendment has come in to effect, having maintenance limit up to Rs 5000/- In Uttarakhand. My client's wife has applied to court for enhancement for Rs 2000/-.

                                                                                           Sir I am of the openion that, because maintenance awarded earlier was according to old provision which may be maximum Rs 500/-. New amendment should not be applied here, having no specific clause in amendment Act.

                                                                                            Am I wrong or right ? please suggest. Sir if I am right please suggest the law or citation if any, that I may satisfy to court.

 
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Medical Value Travel

1. Now a days there is no upper limit based on Amendement in CrPC especially for . 125 CrPC
2. She may be given enhancement from year of amendement based on "income" grounds and price index change being summery prime facie proceeding.
3. there are more citations in favour of this lady where based on circumstances and "distution" nature of the lady it has been enhanced. Lucky here that she is asking 2 K not more than that (may be the husband income is not much it looks in the case).
Rgds.
 

 
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Lawyer

well it has to be seen that whether amendment has retrospective effect of prospective effect

let other Ld. members reply

regarding enhancment of maintenance it has to be proved by wife that source of income of husband as increased this onus lies upon her inorder to succeed in 127

 
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Publishers

In this case Court has to apply the law which was in force at the time of passing the Order.

 
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advocate

I have to explain all learned members that it is the matter of judicial notice that salary has been increased and price index also. But my question is not related with fact but with law. Please suggest with law or citation as early as possible.

 
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Medical Value Travel

Sh. Arvind ji,

With regards when a question of Law of 'sociatal issues" are adjudicated it is general tendancy of Hon'ble Courts to lean towards women side. I am not sure which side of fence you are here. Having said so here are two diverse views on core subject as asked. Hope too precise a view helps (but do consider that she is bound to get an increase no matter which view from below is plead well).

The first view:

(1) (Y. Arul Nadar v. Authorised Officer, Land Reforms, Thanjavur) wherein it has been held that as per the general rule when an amendment is introduced in the statute governing the case already pending, the rights and obligations of parties should be decided only according to the law which existed when the action was begun unless a clear contrary intention is evident in the Amending Act and there could not be any imputation of retrospective operation to an Amending Act and that could be done only by the Amending Act either expressly or by necessary implication;

(2) (Bhagat Ram Sharma v. Union of India and Ors.) wherein it has been held that it is a matter of legislative practice to provide while enacting an amending law that an existing provision shall be deleted and a new provision substituted and such deletion has the effect of repeal of the existing provision and such a law may also provide for the introduction of a new provision. It bas been further held therein that amendment is in fact a wider term and includes abrogation or deletion of a provision in an existing statute and an amendment of substantive law is not retrospective unless expressly laid down or by necessary implication inferred;

(3) (AIR 1924 All 563 (Kashmiri Lal v. Kishen Deb) wherein it has been held that inasmuch as the accused had incurred the liability to have his prosecution sanctioned and the complainant on the dismissal of his application by the subordinate Judge had acquired a right to apply for sanction to the Appellate Court, Section 6(sic) of the General Clauses Act applied to the case and the repeal of the old Section 195 did not affect the investigation.

(4) (AIR 2000 Mad 167) wherein it has been held that in case of Motor Vehicles Act being amended and each amending provision providing for no fault liability cannot be given retrospective effect, because if such retrospective effect was given, then it would definitely affect existing right or obligation of the owner of the vehicle in question and the insurer for no fault of theirs and it has to be decided in consonance with the law as it stands on the day of its moving, since it is a matter pertaining to procedure. It has been further held in this judgment that when two interpretation are found possible regarding the question of retrospectivity, the interpretation that the provision is prospective will be preferred.

The second view:

Placing reliance upon the decision (Bhagban Dutt v. Sm. Kamala Devi and Anr.) contends that a wife's right to maintenance is not absolute and in determining the amount of maintenance a Magistrate is competent to take into consideration the separate income and means of wife. Their Lordships in this case have further observed that any other construction would be subversive of the primary purpose of the section and encourage vindictive wives having ample income and means of their own to misuse the section as a punitive weapon against their husbands.

Section 125 CrPC is not intended to provide for a full and final determination of the status and personal rights of the parties at the interim stage and the jurisdiction conferred by this eection on the Magistrate is more in the nature of the preventive rather than a remedial jurisdiction and it is certainly not punitive.

The decision reported in AIR 1991 SC 1256 (Amirtham Kudumbah v. Sarnam Kudumban) wherein it has been held that in case of a beneficial legislation whatsoever gives restriction use or constitutes an embargo in the way of giving effect to such a welfare enactment should be removed and stretching this logic to the present case, the benefit of this amendment should be extended to the pending cases also. It may be mentioned here that the above mentioned amendment came into operation on and from 24.9.2001 (vide the Government Notification concerned). 

The words of remedial statute should be so construed as to ensure that the relief contemplated under the status in the question may not be denied to the clash intended to be relieved and on the basis of this ruling it should be taken that the amendment of the CrPC in question should have retrospective operation even though nowhere that has been mentioned in express terms. relience is also placed on another ruling (Bengal Immunity Co. Ltd. v. State of Bihar and Ors.) whereunder Their Lordships enunciated certain principles on the strength of which propagated that all beneficial status should be retrospective operation. The next ruling relied is (Muktinarain Jha v. State of Bihar) and (Captain R.C. Kaushal v. Mrs. V. Kaushal) whrerein it was held that the provisions of Section 125 formed a major of social justice for the purpose of protection the weaker section and with that end in view, accordingly any legislation containing beneficial provisions should have retrospective operation.

The second line of argument consists in the point raised here is that even if such a legislation is taken to be prospective, even then there will be no difficulty In granting the relief at the new rate and at the same time maintaining its prospectivity if with regard to a pending proceeding the new rate is applied only on and from the date when the amendment takes effect. In support of this contention relies is placed upon the decision reported in 1999 CCrLr 116 (Cal HC) and 2000 CCrLr (Cal) 179 (Dhananjoy Samanta v. Sobitri Samanta).

Sh. Arvindji however as a friendly suggestion I would suggest you to give your thoughts on retrospective nature of DV as D HC says 3 days ago and I have posted the entire Judgment in a seperate post.

Rgds,
D. Arun Kumar, New Delhi

 
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advocate

Arun Sir thanks a lot.

 
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As per my knowledge dr Arun statement "Now a days there is no upper limit based on Amendement in CrPC especially for . 125 CrPC" is wrong

few state has upper limit like

UP --5000/

J&K -2000/

and many other state for which i am not sure
 

 
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Medical Value Travel

Sh. Vijay ji,

1. Thank you for pointing to UP and JnK posisitons as of date would have been beneficial to readers if you could point to State Amendments in these two States such as avvered below;

2.  And once again thank you for pointing out error apparent in omitting words "depends on hon'ble judges from State to State" from my earlier comment and to the best of my knowledge (mind you saying with a disclaimer as stated in my profile) following :-)

Point 1. The words "not exceeding five hundred rupees in the whole" omitted by Act 50 of 2001, sec.2 (w.e.f. 24-9-2001).
Point 2. Ins. by Act 50 of 2001, sec.2 (w.e.f. 24-9-2001).
Point 3. Subs. By Act 50 of 2001, sec 2, for sub-section (2) (w.e.f. 24-9-200).
Point 4. Subs. By Act 50 of 2001, sec 2, for "allowance" (w.e.f. 24-9-200).

These point 1 to 4 are mention in the above post check from there. In short I must say the max she can get it Rs 500 only as per law but mostly is depends on hon'ble judges to give these kind of order(s).

check this forum and get the max order where give order under CRPC 125 is 0

Now under section of CRPC 125 only different states says differently ;

STATE AMENDMENTS

Madhya Pradesh:

In section 125, in sub-section (1), for the words "five hundred rupees" the words m' "three thousand rupees" shall be substituted.

[Vide M.P. (Act 10 of 1998), sec. 3 (w.e.f. 29-54998)] [Ed. This amendment has been I made prior to the enactment of the Code of Criminal Procedure (Amendment) Act, 2001 W (Central Act 50 of 2001) whereby the words "not exceeding five hundred rupees in the I whole" have been omitted by sec. 2 (w.e.f. 24-9-2001)].

Maharashtra:

In Section 125,-

(a) in sub-section (1),-

(i) for the words "not exceeding five hundred rupees" the words "not I exceeding fifteen hundred rupees" shall be substituted;

(ii) before the existing proviso, the following proviso shall be inserted, namely:-

Provided that, the Magistrate on an application or submission being made, supported by an affidavit by the person who has applied for the maintenance under this sub-section, for payment of interim maintenance, on being satisfied that, there is a prima facie ground for making such order, may direct the person against whom the application for maintenance has been made, to pay a reasonable amount by way of interim maintenance to the applicant, pending the final disposal of the maintenance application:

Provided further that, such order for payment of interim maintenance may, in an appropriate case, also be made by the Magistrate ex parte, pending service of notice of the application, subject, however, to the condition that such an order shall be liable to be modified or even cancelled after the respondent is heard in the matter:

Provided also that, subject to the ceiling laid down under this sub-section, the amount of interim maintenance shall, as far as practicable, be not less than thirty per cent of the monthly income of the respondent.";

(iii) in the existing proviso, for the words "Provided that" the words "Provided also that" shall be substituted;

(b) after sub-section (2), the following sub-section shall be inserted, namely:-

(2A) Notwithstanding anything otherwise contained in sub-sections (1) and (2), where an application is made by the wife under clause (a) of sub-section (1) for the maintenance allowance, the applicant may also seek relief that the order may be made for the payment of maintenance allowance in lump-sum in lieu of the payment of monthly maintenance allowance, and the Magistrate may, after taking into consideration all the circumstances obtaining in the case including the factors like the age, physical condition, economic conditions and other liabilities and commitments of both the parties, pass an order that the respondent shall pay the maintenance allowance in lump-sum in lieu of the monthly maintenance allowance, covering a specified period, not exceeding five years at a time, or for such period which may exceed five years, as may be mutually agreed to, by the parties.";

(c) in sub-section (3),-

(i) after the words "so ordered" the words, brackets, figures and letter "either under sub-section (1) or sub-section (2A), as the case may be," shall be inserted;

(ii) after the words "each month's allowance" the words "or, as the case may be, the lump-sum allowance to be paid in lieu of the monthly allowance" shall be inserted.

[Vide Maharashtra Act, 21 of 1999 sec. 2 (w.e.f. 20-4-1999)] [Ed. These amendments have been made prior to the enactment of the Code of Criminal Procedure (Amendment) Act, 2001 (Central Act 50 of 2001) sec. 2 (w.e.f. 24-9-2001)].

Tripura:

In section 125, for the words "five hundred rupees" the words "one thousand five hundred rupees" shall be substituted.

[Vide Tripura Act, 9 of 1999 sec. 2 (w.e.f. 9-4-1999}] [Ed. This Amendment has been made prior to the enactment of the Code of Criminal Procedure (Amendment) Act, 2001 (Central Act 50 of 2001) whereby the words" not exceed of five hundred rupees in the whole" have been omitted by sec. 2 (w.e.f. 24-9-2001)].

STATE AMENDMENTS

West Bengal:

In Sub-section (1) -

For the words "five hundred rupees" the words "one thousand and five hundred rupees" shall be submitted.

(2) After the existing proviso, following proviso shall be inserted, namely.

"Provided further that where in any proceeding under this section it appears to the Magistrate that the wife referred o in clause (a) or the minor child referred to in clause (b) or the child (not being a married daughter) referred o in clause (c) or the father or the mother referred o in clause (d) is in need of immediate relief for her or its or his support and the necessary expenses of the proceeding, the Magistrate may, on the application of the wife or the minor child or the child (not being a married daughter) or the father or the mother, as the case may be, order the person against whom the allowance for maintenance is claimed, to pay to the petitioner, pending the conclusion of the proceeding the expenses of the proceeding, and monthly during the proceeding such allowance as having regard to the income of such person, it may seem to the Magistrate to be reasonable.

[Vide West Bengal Act 25 of 1992 (w.e.f. 2-8-1993)] [Ed. This Amendment has been made prior to the enactment of the Code of Criminal Procedure (Amendment) Act, 2001 (Central Act 50 of 2001) whereby the words "not exceed of five hundred rupees in the whole" have been omitted by sec. 2 (w.e.f, 24-9-2001)].

[Vide W.B. Act 25 of 1992 (w.e.f. 2-8-1993)

3. I still stand by general comment saying that there are atleast 300 cases and not lesser which I am aware of where maint. U/s 125 CrPC was awarded totalling more than Rs. 5,000/- on an average (the highest being Rs. 25,000/-) from these very States whose State Amendments have been replicated above by me.  Any comment on this last Para Sh. Vijay ji.?

Rgds

 
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Publishers

Dear Vijayji,

By the Central Act being Act No.50 of 2001 section 125 was amended and the upper ceiling of was altogether removed w.e.f. 30-9-2001. Central Amendment will prevail over State Amendments and there is no ceiling on the amount which could be granted in terms of sub-section 1 of section 125 of Cr.P.C.

 
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