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Wife is entitled to maintenance from the date of application not from the date of order; SC [Read the Judgment]

Aishwarya Dhakarey
21 Nov 2014 10:14 AM GMT
Wife is entitled to maintenance from the date of application not from the date of order; SC [Read the Judgment]
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While allowing the Special Leave Petition in a matter concerning a wife’s and a minor daughter’s right to maintenance, the Supreme Court bench comprising of Justices Chelameswar and S.A. Bobde upheld the view that it is completely justified to grant maintenance with effect from the date of the application. In the instant case, the appellant wife had left her work during her marriage and there was no prima facie evidence of her income during the said period. The court while reversing the order of the High Court maintained the maintenance amount as granted under Section 24 of the Hindu Marriage Act, 1955 by the inferior courts but ruled that it should be paid from the date of application.

Placing reliance upon Shail Kumari Devi  v. Krishan Bhagwan Pathak, the bench referred to the reasoning that it was allowed for a magistrate to grant maintenance from the date of application and not from the date of order in certain circumstances arising in the case. It is noteworthy that Section 125 of the Cr.P.C., which talks about maintenance requires  the  Court to consider making the order for maintenance effective from  either  of  the two dates, having regard to the relevant facts and should cite reasonable grounds in the support of its decision. It is an expressed provision and leaves no room for doubt, S. 125 of the Code of Criminal Procedure reads as:

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  ormental 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 proceeding 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 of 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.”

Nevertheless, the honourable court did not interfere with the maintenance sum of Rs 5000 set by the High Court. Evidently prior to this, the family court had only granted the minor daughter a sum of 5000, the family court had opined that since the appellant wife was working before her marriage, she was fully capable of working after the separation and was subsequently denied maintenance. But the High Court rejected this view and granted the sum of Rs 5000 each as maintenance with effect from the date of order. However, this was challenged in the instant appeal by way of special leave to make it from the date of application and the SC allowed the appeal.

Read the judgment here

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