THANU PILLAY GANGADHARAN PILLAY Vs. THANKAMMA RADHAMMA

JUDGEMENT

(1.) THIS case has come before this Bench on a reference by one of us to resolve the divergence of views reflected in the two decisions of this court, one in Bhargavi Amma v. Kuttikrishnan (1966 KLT. 194) by Govinda menon, J. and the other in Parameswara Moothar v. Balameenakshi (1968 KLT. 761)by Raghavan J. (as he then was ). The short question that needs to be decided is whether a Magistrate, in varying or cancelling under S. 489 Cr. P. C. , a maintenance allowance already granted under S. 488 Cr. P. C can direct the order to take effect from the date of the petition.

(2.) IN this case, on an application by the wife, maintenance was originally awarded at Rs. 15 per month, which was reduced to rs. 10 per month by this court in Crl. R. P. No. 241 of 1967. Subsequently, an application was made under S. 489 Cr. P. C. on 7th October 1971, which was disposed of ex parte on 31st January 1972, enhancing the amount of maintenance to Rs. 17 per month. The husband filed an application to set aside the ex parte order. Evidence was taken and the amount was further enhanced to Rs. 20 payable from the date of the petition. The petitioner before us, questions the jurisdiction of the Magistrate in directing the enhancement to take effect from the date of the petition and also the quantum of maintenance.

(3.) THE argument on behalf of the petitioner is that S. 488 (2) clearly authorises the Magistrate, to direct the order to take effect from the date of the application. This enabling provision was introduced by an amendment, while the 1883 Act did not contain such a provision. S. 489 did not contain such a provision at any time. It is therefore contended that an order under S. 489 can take effect only from the date of the order and not from an earlier date.