HC: It is the discretion of the trial Court to grant maintenance either from the date of order or from the date of application
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.
Crl. Misc.No.M-8902 of 2011 (O&M)
Date of decision: 18.5.2012
Smt. Sushila & another
CORAM:- HON’BLE MR. JUSTICE RAKESH KUMAR GARG
1. Whether reporters of local newspapers may be allowed to see judgment?
2. To be referred to reporters or not?
3. Whether the judgment should be reported in the Digest?
Present:- Mr. J.P. Sharma, Advocate for the petitioners.
None for the petitioner.
RAKESH KUMAR GARG, J.
1. Petitioners are wife and daughter of respondent-
Suresh Kumar. They were provided maintenance allowance at
the rate of Rs.750/- per month each under Section 125 CrPC, to
be paid by the respondent vide order dated 22.8.2006.
Subsequently, in an application filed on 11.10.2008 under Section
127 Cr.P.C., the Sub Divisional Judicial Magistrate, Mohindergarh,
vide order dated 20.3.2010, enhanced maintenance allowance to
Rs.2,000/- per month to petitioner No.1 and Rs.1,000/- per month
to petitioner No.2, from Rs.750/-.
2. Feeling aggrieved from the aforesaid order, the
petitioners filed revision petition before the Sessions Judge, CRM No.M-8902 of 2011 2
Narnaul by raising grievance that petitioner No.2-Monika was also
entitled to maintenance allowance at the rate of Rs.2,000/- per
month instead of Rs.1,000/- per month. Vide order dated
27.11.2010, maintenance allowance of Monika was enhanced to
Rs.2,000/- per month, but it was ordered that the enhanced
amount would be payable to both the petitioners with effect from
20.3.2010 i.e. date of order passed by the Sub Divisional Judicial
Magistrate, Mohindergarh. Whereas the enhanced maintenance
allowance should have been awarded from the date of application
i.e. 11.10.2008 instead of date of order.
3. From the aforesaid facts, as narrated above, it may be
noticed that only grievance of the petitioner is that the enhanced
maintenance should have been allowed from the date of
application instead of the date of order of Sub Divisional Judicial
4. It is useful to refer to Section 127 CrPC, which reads
127. Alteration in allowance.- (1) On proof of a change in the circumstances of any person, receiving, under section 125 a monthly allowance, for the maintenance or interim maintenance, or ordered under the same section to pay a monthly allowance for the maintenance, or interim maintenance, to his wife, child, father or mother, as the case may be, the Magistrate may make such alteration, as he thinks fit, in the allowance for the maintenance, or interim CRM No.M-8902 of 2011 3
maintenance, as the case may be.
(2) Where it appears to the Magistrate that, in consequence of any decision of a competent civil court, any order made under section 125 should be cancelled or varied, he shall cancel the order or, as the case may be, vary the same accordingly. (3) Where any order has been made under section 125 in favour of a woman who has been divorced by, or has obtained a divorce from, her husband, the Magistrate shall, if he is satisfied that- (a) The woman has, after the date of
such divorce, remarried; cancel such
order as from the date of her
(b) The woman has been divorced by
her husband and that she has
received, whether before or after the date of the said order, the whole of the sum which, under any customary or
personal law applicable to the parties, was payable on such divorce, cancel
(i) In the case where such
sum was paid before such
order, from the date on
which such order was made,
(ii) In any other case, from
the date of expiry of the
period, if any, for which
maintenance has been
actually paid by the husband
to the woman;
(c) The woman has obtained a divorce
from her husband and that she had
voluntarily surrendered her rights to maintenance or interim maintenance,
as the case may be after her divorce, cancel the order from the date thereof.
(4) At the time of making any decree for the recovery of any maintenance or dowry by any CRM No.M-8902 of 2011 4
person, to whom a monthly allowance for the maintenance and interim maintenance or any of them has been ordered to be paid under section 125, the civil court shall take into account the sum which has been paid to, or recovered by, such person as monthly allowance, in pursuance of the said order.”
5. The plain import of Section 127 is that a provision is
made therein for an alteration of the maintenance allowance
consequent upon a change in the circumstances of either party at
the time of application for alteration. However, mere allegation of
change in circumstances in the application are not enough and
the same requires to be proved. Thus, while dealing with such an
application, the Magistrate should consider the matter in the light
of criteria which usually weighs with Court in the proceedings u/s
125 CrPC and after an inquiry, an appropriate order for alteration
can be passed. It may further be noticed that the aforesaid
provision has put no bar on the powers of the Court to order
alteration in the maintenance allowance from the date of
application. In other words, the order for payment of enhanced
maintenance allowance can be made from the date of application,
for the reasons established on the record.
6. In the facts and circumstances of the case, it has
been established that there exists reasons for enhancing the
maintenance allowance from the date of application.
7. At this stage, it is useful to refer to judgments of this
Court in the case of Smt. Tripta v. Sat Parkash 1984 CCC 482, CRM No.M-8902 of 2011 5
wherein it has been observed that it is the discretion of the trial
Court to grant maintenance either from the date of order or from
the date of application and in the case of Bhagat Singh v. Smt.
Parkash Kaur 1972 Vol.LXXIV PLR 952, wherein it has been
held that the Magistrate had the power to make alteration in the
maintenance from the date of application.
8. Thus, keeping in view the aforesaid judgments of this
Court and the discussion, as above, this petition is allowed and
the impugned order is modified to the extent that the enhanced
maintenance allowance to the petitioners shall be payable from
the date of application instead of the date of order of Sub
Divisional Judicial Magistrate, Mohindergarh.
May 18, 2012 ( RAKESH KUMAR GARG ) ak JUDGE