Order directing the enhancement of maintenance amount can stand only from the date of the order and not from the date of the application
The Hon Court orders and we quote "....The main effect of passing an order of enhancement of maintenance retrospectively is, in the ultimate analysis imposing a liability upon one party. So the question is whether a legal liability can be created retrospectively when Legislature is silent on the point. Under Section 125, Cr. P.C., the Legislature has specifically empowered the Magistrate to create the liability either from the date of the order or from the date of the application. But Section 127, Cr. P.C. has not expressly empowered the Magistrate to create that liability. An argument may be raised that a proviso cannot take away what has been given in the Section itself. Even this argument does not hold any water ...."
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Calcutta High Court
Joydeb Chakraborty vs Smt. Bharti Chakravarty on 4 March, 1994
Equivalent citations: 1994 CriLJ 2234
Author: N Batabyal
Bench: N Batabyal
ORDER N.K. Batabyal, J.
1. This revisional case arises out of an application under Section 482 read with Section 401 of the Cr. P. C., 1973 and is directed against an order dated 23-2-93 passed by the learned 3rd Judicial Magistrate, Howrah in Misc. Case No. 10/83 in a proceeding under Section 127 of the Cr. P. C.
2. The marriage between the petitioner and the opposite party No. 1 was solemnised according to Hindu rites and Customs on 20-4-1976. After the marriage the parties lived together and the relationship between the parties became strained and the wife-opposite party deserted the husband. Attempts at compromise failed. In 1980 the husband filed Matrimonial Suit No. 116/80 in the Court of the learned District Judge, Howrah for restitution of conjugal rights but he withdrew that suit in January, 1983. The wife then filed an application under Section 125 of the Cr. P.C. in the Court of the learned S.D.J.M., Howrah praying for maintenance at the rate of Rs. 200/- per month. The learned Magistrate by order dated 31-5-1986 directed the husband-petitioner to pay maintenance at the rate of Rs. 150/- per month to the wife-opposite party from the date of filing of the application. The husband-petitioner paid the maintenance as per the above order. In December, 1991, the wife-opposite party filed an application under Section 127 of the Cr. P.C. for a direction to pay enhanced maintenance at the rate of Rs. 500/ - per month alleging, inter alia, that the market price of essential commodities had become high and she was unable to maintain herself with the paltry amount. The husband filed objection thereto. Upon hearing the parties the learned Judicial Magistrate, 3rd Court, Howrah by the impugned order dated 23rd February, 1993 was pleased to enhance the maintenance to the extent of Rs. 450/ - per month from the date of the application under Section 127 of the Cr. P.C. and directed the husband-petitioner to pay the said sum of Rs. 450/- along with the arrear maintenance at the rate of Rs. 100/- per month till the arrears sum stood liquidated. http://evinayak.tumblr.com http://vinayak.wordpress.com http://fromvinayak.blogspot.com
3. Being aggrieved by and dissatisfied with the order passed by the learned Magistrate, the husband has come before this Court.
4. The main contention of the petitioner is that the learned Magistrate had no jurisdiction to enhance the maintenance amount under Section 127 of the Cr. P. C. retrospectively from the date of the application under the said Section. The learned Lawyer for the wife-opposite party contested the application vigorously. No one has appeared on behalf of the State-opposite party.
5. The only point for consideration is whether the impugned order is liable to be quashed.
6. Mr. Subir Banerjee, learned Advocate for the revisionist has submitted that the learned Magistrate can only order increased payment from the date of the order and not from the date of the application. In support of his contention, the learned Advocate has relied upon the principles laid down in J.H. Amroon v. Mrs. R. Sassoon AIR 1949 Cal 584 : (50 Cri LJ 1006). In that case there was a revision from an order of the learned Chief Presidency Magistrate, Calcutta raising maintenance from Rs. 12/- to Rs. 50/- per month with effect from the month of September, 1948 while the application for alteration of the allowance was made on 31st August, 1948. In that case, it was argued on behalf of the petitioner that the order of retrospective payment was illegal. A learned single Judge of this Court after considering the decisions of other High Courts of India on the point, as there was no decision on the point of our High Court, came to the conclusion that the Magistrate had no power to order the increased allowance to be paid with effect from the date of application but only from the date of the order increasing the allowance.
7. The learned Judge considered Hiralal Valavdas v. Bai Amba and Mt. Lilawati v. Madan Gopal AIR 1935 Lah 24 : (37 Cri LJ 68). In the Bombay case, a Division Bench of the Bombay High Court held that a Magistrate has power to increase the rate of maintenance once awarded and to direct that the increased rate of maintenance be paid from the date of the application asking for the increase. The reasons given by the Bench are as follows :-
"It has been argued that the Magistrate has 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."
8. The Lahore decision is a Single Bench decision. In that case the petitioner was granted a monthly allowance for maintenance of herself and her children. The petitioners applied for executing the order of maintenance and collecting the arrears. Her husband represented that the amount fixed was too heavy for his reduced income. The learned Magistrate reduced the allowance from Rs. 25/- to 20/- per month on the ground that although the husband's income has undergone no change, the wife had obtained an employment at a rate of Rs. 6/- per month. The order of the Court was as follows:-
"The order reducing the rate for the months-of December to March
retrospectively appears to me to be clearly improper. There had been
no application by the husband under Section 489 for the reduction of
the maintenance."
"The petitioner had 2 children when the maintenance order was passed
in April, 1932, one child was nine and the other was only a few
months old. Their expenses have presumably increased. The income of
the respondent is what it was. In the circumstances, the Magistrate
had no justification for reducing the rate of maintenance, I...set
aside the order of the Magistrate that payment is to be made... at
ther rate of Rs. 20/- per mensem and I make the warrant of attachment
isseued by him only for Rs. 100/- instead of Rs. 80/-."
9. It appears that nothing in the order deals with the matter of retrospective effect as a substantive issue. The learned single Judge of our High Court differing from the view taken by the Bombay High Court observed as follows:-
"The Bombay High Court decision is based on the consideration of
Sections 488 and 489 as they now stand but this decision is not
binding on me and with all respect to the learned Judges I am not
prepared to adopt it for the short reason that the Legislature had
thought it fit to amend Section 488(2) as it now stands with the
result that the Magistrate has the power to make the allowance
payable either from the date of the order or from the date of the
application for maintenance. Section 489 contains no such power. The
powers of the learned Magistrate are to be sought within the four
corners of the Code. The Legislature has given the Magistrate a power
to date back the order for maintenance in the first instance of the
date of the application. It has not given the Magistrate the
corresponding power to the alteration in the allowance."
10. Mr. Talukdar, learned Advocate for the wife-respondent has in support of his contention referred to the principles laid down in Dr. T.K. Thayumanuvar v. Asenambal Ammal, . It is a Single Bench decision of Mysore High Court. In that case, it has been held that the appropriate way to consider Section 489 of the Cr. P. C. is to read the same as a proviso to Section 488(1), Cr. P. C. So read the other parts of Section 488 will become applicable to the proceedigs under Section 489. A Magistrate has power to direct that the increased rate of maintenance ordered by him be paid from the date of the application asking for the increase. But ordinarily an order of this type should be effective only from the date of the order. In order to give retrospective effect to it, there must be special circumstances, the mere fact that there was some delay in the enquiry of the case is not a sufficient ground to direct the petitioner to pay maintenance at the increased rate from the date of the application. In this case reliance was placed on and the decision reported in AIR 1949 Cal 584 was not followed.
11. Mr. Talukdar has also referred to the principles laid down in Parameswara v. Balameenakshi, . In that case, it has been held that under Section 489, an enhancement of the maintenance allowance can be made to take effect from the date of the application for enhancement instead of from the date of the order. Section 489 is, only consequent on Section 488. Therefore, even if elaborate provisions are not made under that Section on the same lines as under Section 488, it cannot be said that a court acting under Section 489 has not all the powers it has under Section 488. The result is that if the Magistrate has power under Section 488 to award maintenance from the date of the application, he must have the same power to award increased allowance also from the date of the application for enhancement. But, there is a distinction between an order reducing the maintenance allowance and an order increasing the allowance. In the former case the principle that amounts already accrued cannot be retrospectively varied, has to be applied. In the other case i.e. of an enhancement of the allowance there is no scope for the application of that principle. The Magistrate is free to enhance the allowance either from the date of the application for enhancement or from the date of the order.
12. The learned single Judge who delivered the judgment dissented from the view taken in AIR 1949 Cal 584 : (50 Cri LJ 1006). He considered Hiralal Valavdas v. Bai Amba (1958 Cri LJ 1522) (Mys) (supra) and Mt. Lilawati v. Madan Gopal (37 Cri LJ 68) (Lah) (supra) and other decisions.
13. From a discussion of the decisions as cited above, it appears that the learned Judges tried to answer the question whether a Magistrate has power under Section 127, Cr. P.C. to pass an order retrospectively i.e. from the date of application for enhancement etc. of the maintenance amount from different angles. But, in my humble view, one important aspect of the problem was not adverted to. The main effect of passing an order of enhancement of maintenance retrospectively is, in the ultimate analysis imposing a liability upon one party. So the question is whether a legal liability can be created retrospectively when Legislature is silent on the point. Under Section 125, Cr. P.C., the Legislature has specifically empowered the Magistrate to create the liability either from the date of the order or from the date of the application. But Section 127, Cr. P.C. has not expressly empowered the Magistrate to create that liability. An argument may be raised that a proviso cannot take away what has been given in the Section itself. Even this argument does not hold any water for the reasons given below.
14. Though the two Sections are separate, still it may be argued that Section 489, Cr. P.C. (now Section 127, Cr. P. C.) should be read as aproviso to Section 488(1) (now Section 125, Cr. P.C.). On the basis of this, it has been argued that a proviso cannot take away what the Section gives as it is subordinate to the maini Section. The presumption is that "maintenance" and "alteration in allowance" are expressions meaning the same thing. This is debatable. However, let us assume, the two expressions mean the same thing. It has been held in Tahasildar Singh v. State of U. P., , that the territory of a proviso is to carve out an exception to the main enactment and exclude something which otherwise would have been within the Section. It has to operate in the same field and if the language of the main enactment is clear it (the proviso) cannot be used for the purpose of interpreting the main enactment or to exclude by implication what the enactment clearly says unless the words of the proviso are such that it has that as its necessary effect. In Shah Bhojraj Kuverji Oil Mills v. Subhas Chandra , it has been held that as a general rule, a proviso is added to an enactment to qualify or create an exception to what is in the enactment, and ordinarily, a proviso is not interpreted as stating a general rule. But, provisos are often added not as exceptions or qualifications to the main enactment but as saving clauses, in which cases they will not be construed as controlled by the Section.
15. In Hindustan Ideal Ins. Co. v. L.I.C. , it has been held that there is no doubt where the main provision is clear its effect cannot be cut down by the proviso. But where it is not clear, the proviso, which cannot be presumed to be surplusage, can be looked into to ascertain the meaning and scope of the main provision.
16. In view of the above position of law, Section 127, Cr. P. C. cannot be construed to be a surplusage and it can be read as a saving clause to Section 125(1), Cr. P. C. or as limiting the scope of this Section. So the argument based on treating Section 127, Cr. P. C. as a proviso to Section 125(1), Cr. P. C. cannot be entertained to widen the scope of the express terms of Section 125(1), Cr. P. C.
17. Now reverting to our main line of discussion, it may be argued that if the Magistrate has no power to enhance the maintenance by creating a new liability he can certainly reduce the amount. But this argument is without any substance. Reduction of maintenance means curtailing of the right of one of the parties to a proceeding under Chapter IX of the Cr. P. C. Thus the Magistrate cannot do unless authorised by law. In view of my discussions above, there is no such authorisation. http://evinayak.tumblr.com http://vinayak.wordpress.com http://fromvinayak.blogspot.com
18. Hence, I hold that the view which was taken in J.H. Amroon v. Miss. R. Sasson (50 Cri LJ 1006) (supra) was the correct view and the views taken to the contrary cannot be followed. Thus I find no reason to depart from the earlier view of this High Court expressed by Justice Blank in J.H. Amroon v. Miss. R. Sassoon (supra).
19. Accordingly, the application is allowed in part. The order directing the enhancement of maintenance amount can stand only from the date of the order and not from the date of the application. The impugned order is modified to the extent.
20. Let xerox copies of this judgment be made available to both the parties on usual undertaking and upon compliance necessary formalities.
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