R.B. Deo JUDGMENT
R.B. Deo, J.
1. Inherent power under section 482 of the Code of Criminal Procedure (Code) is invoked to challenge the judgment dated 11.12.2017 rendered by the Additional Sessions Judge-6, Amravati in Criminal Appeal 187/2017 whereby the monetary relief granted to the applicant under Section 19 and 20 of The Protection of Women from Domestic Violence Act 2005 (DV Act) is made effective from the date of the order.
2. The applicant-who shall be hereinafter referred to as the wife, preferred an application under Section 12 of the DV Act seeking protective restraint order under Section 18 and monetary relief under Sections 19, 20 and 22 of the DV Act.
3. The learned Magistrate dismissed the application under Section 12 of the DV Act in its entirety vide judgment dated 09.10.2012.
4. The wife preferred Criminal Appeal 187 of 2012 which is partly allowed by judgment dated 11.12.2017 rendered by the Additional Sessions Judge-6, Amravati and the operative order reads thus:
ORDER
(i) Appeal is partly allowed.
(ii) Respondent/non applicant is directed to pay sum of Rs. 1000/- for residence and Rs. 2000/- for monetary relief per month i.e. total Rs. 3000/- p.m. to the appellant under sections 19 and 20 of the Protection of Women Against the Domestic Violence Act, 200t within 10th day of each month from the date of this order.
(iii) R & P be sent to the learned trial court along with copy of this judgment.
(iv) Inform to learned trial court accordingly.
5. The wife is aggrieved to the extent the monetary relief is not made effective from the date of the application under Section 12 of the DV Act. It is necessary to mention that the respondent-husband also challenged the judgment in appeal in Criminal Revision Application 86 of 2019 which is dismissed (Coram: Mrs. Sawpna Joshi, J.) by this Court order vide order dated 17.01.2020 which reads thus:
Applicant's advocate absent. On last occasion also, he was absent.
Criminal Revision Application is dismissed for want of prosecution.
6. The submission of learned counsel for the wife that the learned Sessions Judge erred in giving effect to the monetary relief from the date of the order is well merited. Notably, the learned Sessions Judge has not spelt out any reason for not giving effect to the monetary relief from the date of the application.
7. It would be necessary to note certain decisions of the Apex Court which have bearing on the issue involved.
8. In Shail Kumari Devi v. Krishan Bhagwan Pathak, MANU/SC/3353/2008 : (2008) 9 SCC 632 the Supreme Court articulates 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 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.
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 Singh, 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.
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 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 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 (1) of Section 125 of the Code in absence of express provision to that effect."
9. In Jaiminiben Hirenbhai Vyas and Another v. Hirenbhai Rameshchandra Vyas and Another, MANU/SC/1046/2014 : (2015) 2 SCC 385, after considering Shail Kumari Devi v. Krishan Bhagwan Pathak, the Hon'ble Supreme 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 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."
10. 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 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 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 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.
11. The learned Sessions Judge has not recorded any reason for making the monetary relief effective from the date of the order. The circumstances on the basis of which the wife is held entitled to monetary relief existed as on the date of the application. I have not come cross any material to suggest that the proceedings are unduly prolonged, much less due to reasons attributable to the wife. In this view of the matter, the monetary relief ought to have been made effective from the date of the application under Section 12 of the D.V. Act.
12. In Rajnesh v. Neha and another the Supreme Court issued exhaustive directions/guidelines on the issue of maintenance including the date from which maintenance is to be awarded. Paragraph 79 of the decision reads thus:
79. It has therefore become necessary to issue directions to bring about uniformity and consistency in the Orders passed by all Courts, by directing that maintenance be awarded from the date on which the application was made before the concerned Court. The right to claim maintenance must date back to the date of filing the application, since the period during which the maintenance proceedings remained pending is not within the control of the applicant.
13. In the light of the consideration supra, the application is allowed and the judgment of the learned Sessions Judge is set aside to the extent the monetary relief is made effective from the date of the order and instead of it directed that the monetary relief shall be effective from the date of the application under Section 12 of the DV Act.
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