SC and HC Judgments Online at MyNation

Judgments of Supreme Court of India and High Courts

Sanjay Vasantrao Akotkar vs Sau. Maya Sanjay Akotkar And … on 31 July, 2018

1 apl621.17

IN THE HIGH COURT OF JUDICATURE AT BOMBAY,

NAGPUR BENCH, NAGPUR.

CRIMINAL APPLICTATION (APL) NO.621 OF 2017

Sanjay Vasantrao Akotkar,
Aged 48 years, Occ. – Service,
Manorath Colony, Dabki Road,
Akola (G.P. Bhaurad) Tq. Dist.
Akola, Presently R/o Primary
Health Centre, Kapshi, Tq.
Dist. Akola. …. APPLICANT

VERSUS

1) Sau. Maya Sanjay Akotkar,
Aged 41 years, Occ.- Household,

2) Om s/o Sanjay Akotkar,
Aged 11 years, Occ. – Education,
Minor, through his natural guardian
Mother non-applicant No.1,
Both R/o Balapur, Tq. Balapur,
District Akola.

3) State of Maharashtra. …. NON-APPLICANTS

__

Shri V.R. Deshpande, Counsel for the applicant,
Shri A.S. Thotange, Counsel for non-applicants 1 and 2,
Shri M.K. Pathan, Addl.P.P. for non-applicant 3.
__

CORAM : ROHIT B. DEO, J.

::: Uploaded on – 31/07/2018 01/08/2018 01:40:51 :::
2 apl621.17

DATE OF RESERVING THE JUDGMENT
: 02-07-2018
DATE OF PRONOUNCING THE JUDGMENT : 31-07-2018

JUDGMENT :

Inherent power of this Court is invoked by the applicant-

husband whose limited submission is that the revisional Court fell in

serious error in making the order of the learned Magistrate enhancing

the maintenance initially granted under Section 125 of the Criminal

Procedure Code (“Code” for short) effective from the date of the

application.

2. Few uncontroverted facts only need be stated :

3. Non-applicant 1 is legally wedded wife of the applicant

and non-applicant 2 is the son born from the wedlock.

4. The wife and son preferred Miscellaneous Criminal

Application 50/2006 seeking maintenance under Section 125 of the

Code, which came to be allowed and while the wife was granted

monthly maintenance of Rs.800/- the son was granted monthly

maintenance of Rs.600/-.

::: Uploaded on – 31/07/2018 01/08/2018 01:40:51 :::

3 apl621.17

5. The wife and son moved an application under Section 127

of the Code (Miscellaneous Criminal Case 179/2011) seeking

enhancement of maintenance. This application was partly allowed and

the husband was directed to pay enhanced maintenance of Rs.3,000/-

per month to the wife and Rs.2,000/- per month to the son from the

date of the order.

6. The husband did not step into the witness box. The

learned Magistrate noted that when the application under Section 125

of the Code was decided, the net salary of the husband was Rs.7,839/-

per month, while the salary certificates placed on record in

enhancement proceedings disclosed that the husband was earning more

than Rs.20,000/- per month in 2014. Incidentally, the salary certificate

for June 2017, which is placed on record in this application, reveals

that the gross salary of the husband is Rs.42,483/- and the net salary is

Rs.32,900/-. The learned Magistrate took notice of the inflation and

the ever spiralling cost of living and recorded a finding, and rightly so,

that the wife and the son are entitled to enhancement of maintenance.

7. Dissatisfied with the order of the learned Magistrate, the

wife and the son preferred Criminal Revision 81/2016 which came to

::: Uploaded on – 31/07/2018 01/08/2018 01:40:51 :::
4 apl621.17

be partly allowed by the judgment and order impugned and the

enhanced maintenance was made effective from the date of the

application.

8. The reasons recorded by the revisional Court for granting

maintenance from the date of the application are discernible in

paragraph 13 of the judgment and order impugned, which reads thus :

“13. From the above cited pronouncement, it is clear that
there is no an embargo for enhancing maintenance
allowance from the date of application. From the impugned
judgment and order it is manifest that the Trial Court has
not assigned any reason whatsoever for giving enhancement
in the maintenance allowance from the date of order. Award
of enhanced maintenance from the date of application is the
principle and award of enhanced maintenance from the date
of order is an exception. The present case to my mind does
not fall within an exception. Under such premise, I find that
the impugned order to the extent of its effect is not
sustainable. Having considered the material on record, I
find that the trial Court should have enhanced maintenance
allowance from the date of the application. Therefore, I find
that the impugned order to this extent needs to be interfered
by this Court.”

9. Shri Ved Deshpande, learned Counsel for the applicant-

husband has a two fold submission to make. The first submission is

that ordinarily the enhanced maintenance is to be awarded from the

date of the order and not from the date of the application. The other

::: Uploaded on – 31/07/2018 01/08/2018 01:40:51 :::
5 apl621.17

submission is that even if it is assumed, arguendo, that maintenance

could be made effective from the date of the application, reasons will

have to be recorded for such a direction, which the revisional Court

failed to do.

10. Shri Ved Deshpande invites my attention to the decision of

a learned Single Judge of this Court in Shaikh Rabbani Shaikh Razak

v. Farjana Begum Shaikh Rabbani, 2014(1) Bom.C.R. (Cri.) 95 and

in particular to paragraph 15 which reads thus :

“15. There is, however, one aspect of the matter, which
needs consideration. The learned Counsel for the petitioner
submitted that the learned Magistrate has allowed the
enhancement from the date of application, which is rather
irregular and that the enhancement ought to have been
ordered from the date of the order passed by the Magistrate.
There is, undoubtedly, some substance in the submission in
as much as the trend of the authorities is as follows,

With respect to an application for maintenance,
ordinarily the maintenance should be awarded from the
date of an application, but with respect to the application
for enhancement, the enhancement is to be ordinarily
awarded from the date of the order.”

11. With due respect to the learned Single Judge, who decided

Shaikh Rabbani Shaikh Razak v. Farjana Begum Shaikh Rabbani, I am

unable to fall in line with the view that enhancement of maintenance is

::: Uploaded on – 31/07/2018 01/08/2018 01:40:51 :::
6 apl621.17

to be ordinarily awarded from the date of the order. Shaikh Rabbani

Shaikh Razak v. Farjana Begum Shaikh Rabbani proceeds on the

premise that it is a rule of practice, convenience and propriety that

enhancement of maintenance is to be ordinarily awarded from the date

of the order.

12. Section 125 of the Code which is enacted with the salutary

object of preventing destitution and vagrancy is a piece of social

welfare legislation and as held in Capt. Ramesh Chander Kaushal v.

Veena Kaushal, (1978) 4 SCC 70 falls within the constitutional sweep

of Article 15(3) reimposed by Article 39 of the Constitution of India.

The Hon’ble Apex Court, while interpreting the scope and ambit of

Section 125 of the Code, has in Shail Kumari Devi v. Krishan

Bhagwan Pathak, (2008) 9 SCC 632 observed thus :

“30. 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.

31. 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

::: Uploaded on – 31/07/2018 01/08/2018 01:40:51 :::
7 apl621.17

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, Rameshwar v. Ramibai, Lachhmani v. Ramu,
Qamruddin v. Smt. Rashida, Shyamlal v. Mansha Bai,
Mohd. Ismail v. Bilquees Bano, Nitha Ranjan Chakraborty v.
Smt. Kalpana Chakraborty and Samaydin v. State of U.P.)

32. The High Court, in the impugned order, also referred
to a decision in Bijay Kapri v. Kanishta Devi 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 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
24-9-2001.

33. 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.

34. 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.

::: Uploaded on – 31/07/2018 01/08/2018 01:40:51 :::

8 apl621.17

35. In Gnanaselvi 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, that “justice
cries in silence for long, far too long”.

36. 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.

::: Uploaded on – 31/07/2018 01/08/2018 01:40:51 :::

9 apl621.17

37. In Krishna Jain v. Dharam Raj Jain, 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 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.

38. 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 to sub-section
(6) of Section 354 of the Code which reads thus:

354(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)

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.

39. Our attention was also invited to a decision in K.
Sivaram v. K. Mangalamba. In K. Sivaram, a single Judge of
the High Court of Andhra Pradesh negatived the argument

::: Uploaded on – 31/07/2018 01/08/2018 01:40:51 :::
10 apl621.17

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].

40. 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
intends 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
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.

41. 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 (sinc enable) the 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.

42. Again, maintenance is a right which accrues to a wife
against her husband the minute the former gets married to
the latter. It is not only a moral obligation but is also a legal

::: Uploaded on – 31/07/2018 01/08/2018 01:40:51 :::
11 apl621.17

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.

43. 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. 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.”

13. In Jaiminiben Hirenbhai Vyas and Another v. Hirenbhai

Rameshchandra Vyas and Another, (2015) 2 SCC 385, after

considering Shail Kumari Devi v. Krishan Bhagwan Pathak, the Hon’ble

Apex Court observes thus :

“5. Section 125 CrPC, therefore, impliedly requires the
court to consider making the order for maintenance effective
from either of the two dates, having regard to the relevant
facts. For good reason, evident from its order, the court may

::: Uploaded on – 31/07/2018 01/08/2018 01:40:51 :::
12 apl621.17

choose either date. It is neither appropriate nor desirable
that a court simply states that maintenance should be paid
from either the date of the order or the date of the
application in matters of maintenance. Thus, as per Section
354(6) CrPC, the court should record reasons in support of
the order passed by it, in both eventualities. The purpose of
the provision is to prevent vagrancy and destitution in
society and the Court must apply its mind to the options
having regard to the facts of the particular case.

6. In Shail Kumari Devi v. Krishan Bhagwan Pathak this
Court dealt with the question as to from which date a
Magistrate may order payment of maintenance to wife,
children or parents. In Shail Kumari Devi this Court
considered a catena of decisions by the various High Courts,
before arriving at the conclusion that it was incorrect to hold
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. It is, therefore,
open to the Magistrate to award maintenance from the date
of application. The Court held, and we agree, that if the
Magistrate intends to pass such an order, he is required to
record reasons in support of such order. Thus, 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.”

14. Section 125 of the Code reads 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

::: Uploaded on – 31/07/2018 01/08/2018 01:40:51 :::
13 apl621.17

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, 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
pendency 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
proceedings 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 for
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 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

::: Uploaded on – 31/07/2018 01/08/2018 01:40:51 :::
14 apl621.17

maintenance and expenses of proceedings 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.

(3) If any person so ordered fails without sufficient cause
to comply with the order, any such Magistrate may, for every
breach of the order, issue a warrant for levying the amount
due in the manner provided for levying fines, and may
sentence such person, for the whole or any part of each
month’s [allowance for the maintenance or the interim
maintenance and expenses of proceeding, as the case may be,]
remaining unpaid after the execution of the warrant, to
imprisonment for a term which may extend to one month or
until payment if sooner made:

Provided that no warrant shall be issued for the recovery of
any amount due under this section unless application be
made to the Court to levy such amount within a period of one
year from the date on which it became due:

Provided further that if such person offers to maintain his
wife on condition of her living with him, and she refuses to
live with him, such Magistrate may consider any grounds of
refusal stated by her, and may make an order under this
section notwithstanding such offer, if he is satisfied that there
is just ground for so doing.

Explanation – If a husband has contracted marriage with
another woman or keeps a mistress, it shall be considered to
be just ground for his wife’s refusal to live with him.

(4) No wife shall be entitled to receive an [allowance for
the maintenance or the interim maintenance and expenses of
proceeding, as the case may be,] from her husband under this
section if she is living in adultery, or if, without any sufficient
reason, she refuses to live with her husband, or if they are
living separately by mutual consent.

(5) On proof that any wife in whose favour an order has

::: Uploaded on – 31/07/2018 01/08/2018 01:40:51 :::
15 apl621.17

been made under this section in living in adultery, or that
without sufficient reason she refuses to live with her husband,
or that they are living separately by mutual consent.”

Sub-section (2) of Section 125 of the Code mandates that

if the maintenance is to be made payable from the date of the

application, a specific order making the maintenance payable from the

date of the application shall be made. The limited implication of sub-

section (2) is that if the maintenance is not specifically made payable

from the date of the application, it shall be construed and deemed as

payable from the date of the order. The enunciation of law by the

Hon’ble Apex Court in Shail Kumari Devi v. Krishan Bhagwan Pathak

and Jaiminiben Hirenbhai Vyas and Another v. Hirenbhai

Rameshchandra Vyas and Another is that both the options are available

to the Court and there is no law or principle or rule of practice or

convenience that ordinarily the maintenance must be made payable

from the date of the order.

15. Maintenance granted under Section 125 of the Code may,

with the passage of time or change in circumstances, be rendered

inadequate, unjust and indeed even illusory. This is precisely why

Section 127 of the Code is on the statute book. The object is to provide

::: Uploaded on – 31/07/2018 01/08/2018 01:40:51 :::
16 apl621.17

succour to the woman, child or infirm parents etc. who are confronted

with economic distress due to passage of time or change in

circumstances. Considering that Sections 125 and 127 of the Code

constitute a statutory scheme of which the underlying philosophy is to

ensure that a speedy remedy is provided to the wife, children or

parents who are unable to maintain themselves, the enunciation of law

by the Hon’ble Apex Court as regards the scope and ambit of Section

125 of the Code would apply with equal vigor to Section 127 of the

Code.

16. It would be apposite to refer to a decision of a learned

Single Judge of this Court in Prakash Shankar Shinde v. Rekha

Prakash Shinde and another, 1996(2) Mh.L.J. 624, particularly

paragraph 3 thereof, to which my attention is drawn by the learned

Counsel for non-applicants 1 and 2 Shri A.S.Thotange.

Paragraph 3 of the said judgment reads thus :

“3. Learned Counsel appearing for the husband has raised
two fold submissions. He submitted that the learned Judge
was in error in enhancing the maintenance allowance from
the date of the application under section 127 of the Code.
He submitted that even if the maintenance was to be
increased that should have been allowed from the date of the
order and not from the date of the filing of the petition. The
order under challenge is ex parte. Section 127(1) of the

::: Uploaded on – 31/07/2018 01/08/2018 01:40:51 :::
17 apl621.17

Code read thus :

“127(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, child, father or mother, as
the case may be, the Magistrate may make such alteration in
the allowance as he thinks fit :

Provided that if he increases the allowance, the
monthly rate of five hundred rupees in the whole shall not be
exceeded.”

The section provides that where an order of maintenance is
passed under section 125 of the Code, the amount can be
increased or decreased on proof of change of circumstances of
the person receiving or of the person paying the amount.
The wife has proved that she was allowed monthly
maintenance allowance at the rate of Rs.45/- in the year
1982 and she is unable to maintain herself with this meager
allowance as the prices of essential items have increased
manifold and there is substantial increase in the salary of
her husband. The learned trial Judge upheld the wife’s plea.
It is true that it is not specifically stated in section 127 of the
Code that order thereunder can relate back to the date of the
application. There is no embargo in the section that the
order under that section cannot relate back to the order. This
Court in Hiralal Valavdas vs. Bai Amba, (1926) 28
Bom.L.R. 669 has laid down that an order passed under
section 127 of the Code can relate back to the date of the
application. This Court rejected similar contention observing
thus :

“This is an application in revision against the order of
a Magistrate increasing the maintenance allowance of
the applicant Bai Amba, under section 488 of the
Criminal Procedure Code, from Rs.8-4-0 to Rs.18 per
mensem, the order to take effect retrospectively from
the date of the application.

::: Uploaded on – 31/07/2018 01/08/2018 01:40:51 :::

18 apl621.17

It has been argued that the Magistrate had no
jurisdiction to make the order. Under section 488, the
Magistrate has power to make the maintenance
payable from the date of the application. We cannot
see why he should not have the same power to direct,
if he thinks fit, when an application is made to vary
the order as regards the maintenance payable, that
maintenance at the increased rate should be paid from
the date of the application.”

Learned Counsel for the petitioner could not bring to my
notice any judgment of this Court taking the contrary view.
The first submission of the learned Counsel is thus devoid of
merit.”

17. In the light of the discussion supra, I am not

persuaded to hold that ordinarily enhancement of maintenance

must be made effective from the date of the order and not from

the date of the application.

18. The other submission is that the judgment and order

impugned is bad in law since no reasons are recorded for making the

enhanced maintenance effective from the date of the application. The

submission is not entirely correct. The reason given by the revisional

Court is noted supra. Pertinently, the learned Magistrate has not given

any reason for making the enhanced maintenance effective from the

date of the order. However, the revisional Court has given a reason,

::: Uploaded on – 31/07/2018 01/08/2018 01:40:51 :::
19 apl621.17

which, in my opinion, is unsustainable in law since there is no law or

principle that ordinarily the enhanced maintenance must be made

effective from the date of the application. As held by the Hon’ble Apex

Court while considering the scope and ambit of Section 125 of the

Code and on the basis of the same jurisprudential logic while

enhancing the maintenance, the Court is entitled to choose either of the

two dates, and the maintenance may be made payable from the date of

the order or from the date of the application.

19. The Court is not obligated to record any special reason for

awarding the maintenance from the date of the application. However,

reasons must indeed be recorded. Since the reasons recorded by the

revisional court are found to be inconsistent with the legal position,

rather than remitting the proceedings to the revision Court for

recording reasons, I have deemed it appropriate to examine the

material on record from the perspective of ascertaining the date from

which the enhanced maintenance needs to be given effect to.

20. The wife entered the witness box and brought on record

the circumstances which justified enhancement of maintenance. The

circumstances existed as on the date of the application. The husband

::: Uploaded on – 31/07/2018 01/08/2018 01:40:51 :::
20 apl621.17

has not stepped into the witness box in rebuttal. It is not even the case

of the husband that the proceedings under Section 127 of the Code are

unduly prolonged, much less for reasons attributed to the wife. In this

view of the matter, I do not see any infirmity in the ultimate conclusion

of the revisional Court that the enhanced maintenance needs to be

made payable from the date of the application.

21. However, the limited modification which is required is to

permit the applicant-husband to pay the arrears of maintenance if there

are arrears, in ten equal monthly installments commencing from

01-8-2018.

Subject to the aforesaid observation and direction, the

application is rejected.

JUDGE

adgokar

::: Uploaded on – 31/07/2018 01/08/2018 01:40:51 :::

Leave a Reply

Your email address will not be published. Required fields are marked *


Not found ...? HOW TO WIN 498a, DV, DIVORCE; Search in Above link

All Law documents and Judgment copies
Laws and Bare Acts of India
Landmark SC/HC Judgements
Rules and Regulations of India.

STUDY REPORTS

Copyright © 2021 SC and HC Judgments Online at MyNation
×

Free Legal Help, Just WhatsApp Away

MyNation HELP line

We are Not Lawyers, but No Lawyer will give you Advice like We do

Please read Group Rules – CLICK HERE, If You agree then Please Register CLICK HERE and after registration  JOIN WELCOME GROUP HERE

We handle Women Centric biased laws like False Sectioin 498A IPC, Domestic Violence(DV ACT), Divorce, Maintenance, Alimony, Child Custody, HMA 24, 125 CrPc, 307, 312, 313, 323, 354, 376, 377, 406, 420, 497, 506, 509; TEP, RTI and many more…

MyNation FoundationMyNation FoundationMyNation Foundation