Home > Judgement > HC: It is the discretion of the trial Court to grant maintenance either from the date of order or from the date of application

HC: It is the discretion of the trial Court to grant maintenance either from the date of order or from the date of application

Punjab-Haryana High Court
Smt. Sushila & Another vs Suresh Kumar on 18 May, 2012

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

—–Petitioners

Vs.

Suresh Kumar

—–Respondent

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

Magistrate, Mohindergarh.

4. It is useful to refer to Section 127 CrPC, which reads

thus:-

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

remarriage;

(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

such order-

(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

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