M SHOBHA Vs. MYSKER MADHUSUDHAN RAO

JUDGEMENT

(1.) The wife filed a petition under Sec.125 Cr P C. for recovery of maintenance amount of Rs. 3600/- with effect from 1-2-1985 to 31-10-1985 at the rate of Rs. 250/- to the wife and Rs- 150/- to the daughter, in view of the order dated 1-9-1984 made in Crl R P. No. 8/84 on the file of the Sessions Judge, Nizamabad. That petition was allowed by the Magistrate, holding that the order in CrR P No... 8/84 dated 1-9-1984 will take effect from 4-1-1983, the date of filing of M-C No. 1/83. Against that order, a revision has been filed before the Addl. Sessions Judge, Nizamabad who found that as the Sessions Judge simply enhanced the amount and as he has not mentioned that the enhancement was from the date of filing of the application before the Magistrate or from the date of filing of the revision before him, the enhancement will take effect from the date of passing of the order of the Sessions Judge. Against that order, the wife preferred the present revision.

(2.) Originally, the Magistrate after enquiry awarded Rs. 150/- per month to the wife and Rs. 507- to the daughter from the date of filing of the petition. The wife filed the revision before the Sessions Judge who enhanced the maintenance amount from Rs. 150/- to Rs. 250/- to wife and from Rs. 50/- to Rs. 150/- to the daughter. As the quantum of amount has been enhanced, the wife filed an application claiming that she is entitled for the enhanced amount from the date of filing of petition.

(3.) It is contended on behalf of the petitioner that when once the Magistrate has exercised his discretion under Sec. 125 (2) Cr P C by passing an order that it will take effect the date of filing of the application for maintenance and when once the Sessions Judge has not made any mention except enhancement of the amount from the date of filing of the petition. It not open to the Addl. Sessions Judge to interfere with it. Sec. 125 (2) Cr P C. reads as under : "Such allowance shall be payable from the date of the order, or, if so ordered from the date of the application for maintenance." It is generally expected that maintenance shall be payable from the date of the order If the Magistrate wants that the manitenance can be awarded from the date of the filing of the application, the Magistrate can do so, by invoking the provisions of Sec. 125 (2) Cr P C. If no mention has been made in the order of the Magistrate about the date of the commencement of the claim, it has to be construed that it will take effect from the date of the order. In this case, the Magistrate passed the order granting maintenance with effect from the date of filing of the petition. No where the Sessions Judge has mentioned that the order of maintenance will take effect from the date of filing of the revision or from the date of passing the order. It is only the figure of maintenance that has been substituted by enhancement of the amount. When two views are possible basing on the facts and circumstances in awarding the maintenance, the view that is favourable to the maintenance holder has to be preferred. As the Magistrate has already exercised his discretion that the maintenance order will take effect from the date of the filing of the application, I feel the reasonable interpretation that can be given in the given set of circumstances is only that the enhancement also will take effect from the date of filing of the original petition. It has to be construed that the figures only have been substituted by virtue of the enhancement. In view of the absence of any observation made by the Sessions Judge about the commencement of the enhancement, the interpretation given by the Magistrate is correct and the interpretation given by the Addl. Sessions Judge is not correct.