ISMAIL KASAM KHOKHAR Vs. KHATUN ALARAKHA

JUDGEMENT

(1.) . Mr. J. V. Mehta the learned Advocate appearing for the husband drew my attention to the case of J. H. AMROON V. MISS R. SASSOON REPORTED IN A.I.R (36) 1949 CALCUTTA P. 584 wherein it was held by the Single Judge of the Calcutta High Court that under sec. 489 Cri. P.C. (1898) which is pari material with sec. 127 of the New Code the Magistrate can increase rate of allowance. But he can only order increased payment from the date of order and not from the date of application for increase. However as early as 1926 a similar question came up before the Division Bench of the Bombay High Court and the Bombay High Court in the case of HIRALAL VALAVDAS V. BAI AMBA REPORTED IN A.I.R. 1926 BOMBAY P. 419 held that the Magistrate has the power to increase the rate of maintenance once awarded and to direct that the increased rate of maintenance be paid from the date of the application for increase.

(2.) . When there is a direct judgment of the Division Bench of the Bombay High Court which view also accords with logic and reason I feel that the learned Additional Sessions Judge was distinctly in an error in ordering that the increased rate of maintenance would be payable from the date of the order of the learned Magistrate. If the learned Magistrate acting under sec. 125 can award from the date of the application and if there are no fetters on him to award maintenance from the date of the application there is no reason as to why his order under sec. 127 which is a corollary to sec. 125 should be diluted and such fetters be read therein. If the learned Magistrate has got power to increase the maintenance then the cause of action for the same must have arisen on the date of application for enhancement and there is no reason for the learned Magistrate not to increase the rate from the date on which the wife or the mother of the child has made an application for enhancement. If ultimately on the evidence recorded the learned Magistrate comes to the conclusion that a case for enha- ncement has been made out then naturally his decision to enhance should relate back to the date of the application. To read anything in sec. 127 by way of a fetter to the power of the learned Magistrate would be to read something in sec. 127 which the Legislature in its wisdom has not incorporated therein. I am therefore firmly of the opinion that the view expressed by the Bombay High Court as early as in 1926 is the only logical view apart from that being binding to this Court.

(3.) . Mr. Mehta next urged that the income of the husband has not been taken into consideration. Both the courts have found that as a matter of fact the husband has got the maintenance at the enhanced rate and that being a concurrent finding this Court would be reluctant to undertake a fresh exploration of that avenue. It is in evidence that the husband has remarried and has begotten three children from the second marriage. It is alleged by the wife and daughters in the present petition that he has got a share in the Engineering Works and he has got a house at Morvi in which of course he might be a sharer or be an exclusive owner but all the same if he can afford the luxury of a second wife then he is not doing out any munificent sum to the previous wife and children begotten through that marriage if he pays Rs. 180.00 per month to them. On an average for four persons it works out to Rs. 46.00 per month. The said measly sum unless the wife and the children were to subsidise their income they would not even be getting one single meal out of Rs. 180/ per month not to talk about the other necessities of life. The increase may appear to be fabulous in terms of percentage which works out at 100% but this is simply due to the reason that the initial maintenance award given in 1974 was so niggardly. Both the contentions of Mr. Mehta therefore fail and Mr. Karias revision application requires to be allowed. Application allowed.