SANKAR PROSAD GHOSH Vs. LAKSHMI RANI GHOSH

JUDGEMENT

(1.) In view of two conflicting decisions of two learned Single Judges of this Court regarding the date from which order for maintenance could be passed by the learned Magistrate under Section 125 of the Code of Criminal Procedure, this matter has been referred to the Division Bench for examining the scope of power of the learned Magistrate under Section 125 of che Code of Criminal Procedure and as to the date from which the learned Magistrate could pass order for maintenance. In.an unreported decision of the Hon'ble Justice A.K. Chatterjee (as His Lordship then was) in Criminal Revision No. 1518 of 1989 in the case of Sankar Ganguly v. Saranta Ganguly, on 15th May, 1990, it was held that the order passed by the learned Magistrate giving retrospective effect to the order or maintenance from the date of the application could not be supported which had the effect of saddling the husband with the liability to pay arrear maintenance to his wife. It is further observed by the said learned Single Judge that ordinarily an order for payment of maintenance should take effect from the date of order and it is only in exceptional circumstances that it could be given retrospective effect, i.e. from the date of filing of the application. The learned Single Judge also proceeded to'hold that the learned Magistrate has not recorded any special reason for giving retrospective effect to the order.

(2.) The other order which was placed before this Court is the order of maintenance under Section 125 of the Cr. P.C. from the date of application. In an unreported judgment delivered by R. Bhattacharyya, J. in the case of Smt. Rupali Tunga v. Naba Kumar Tunga, in Criminal Revision No. 1794of 1992, on 11th March, 1993, the learned Single Judge has held that the order of maintenance should be given from the date of the application and while deciding the case, R. Bhattacharyya, J. disagreed with the view taken by A.K. Chatterjee, J. (as His Lordship then was).

(3.) In order to appreciate the controversy, it is necessary to refer to the relevant provisions of Section 125(2) of the Code of Criminal Procedure which provides "Such allowance shall be payable from the date of the order or, if so order from the date of the application for maintenance'.