GURPARTAP SINGH Vs. SMT. SATWANT KAUR AND ANR.

JUDGEMENT

(1.) IN a case for maintenance moved under Section 125 of the Code of Criminal Procedure (in short, 'the Code') by wife and minor daughter, an application was filed for maintenance pendente lite in Court of a Magistrate at Amritsar. Maintenance pendente lite was allowed both to the wife and the daughter by the Magistrate from the date of application. Revision preferred against that order was dismissed by Additional Sessions Judge, Amritsar. Both those orders were assailed in this Court under Section 482 of the Code and the line of attack was that maintenance pendente lite could not be granted from the date of the application. Considering the point of initiation of the interim maintenance, a substantial question of law, the learned Single Judge, - -vide his order dated November 29, 1989, referred the matter for opinion of larger Bench. This is how the matter came before the Division Bench Question referred for opinion in the order of reference runs as follows:

(2.) IT is both moral and legal obligation of a person to maintain his wife and children. The wife is required to be maintained from the time of her marriage and the child from the time of is or her birth. Normally wife resides with her husband after the merital tie and is maintained in the house. So is the case with minor child after his/her birth. Thus the right of maintenance accrues to a wife immediately after she is tied meritally to her husband and to a minor child immediately after his or her birth. When a husband having sufficient means neglects or refuses to maintain his wife or a minor child, he can be compelled under Section 125 of the Code to maintain them. The said provision of law also permits a wife to live separately or to refuse to live with her husband provided she has just ground for so doing and Court is permitted to make an order under aforesaid provision notwithstanding her separate living. Claim for maintenance normally takes birth under such situation and it can be said that a wife or a minor child has a cause of action against husband/father on his failure to discharge his recognised moral/legal obligationr to maintain them. The right of maintenance which had already accrued is continuous one and cause of action arises only when that right is disrupted. However, a wife living separately may not feel like exercising her right of maintenance otherwise recognised by the society as well as law, and it being a rule of nature that a person gets something only when he/she claims the same, discharge of obligation can start only from the date of claim and it cannot possibly run earlier to the same. Date of claim of maintenance/interim maintenance obviously would be date of application for such maintenance/interim maintenance. The Chapter With regard to maintenance of wives and children in the words of Sir James Fitzstephen, provides a mode of preventing vagrancy, or at least of preventing its consequences". Section 125 of the Code thus is intended to fulfil the aforesaid social purpose. Its object is to compel a man to perform the moral obligation which he owes to society in respect of his wife and children. By providing a simple, speedy but limited relief, they seek to ensure that the neglected wife and children are not Heft beggared and destitute on the scrap -heap of society and thereby driven to a life of vagrancy, immorality and crime for their subsistence. Subsistence is called for even during the pendency of the petition for maintenance and its need cannot by any stretch of imagination be said to start only when order for payment of maintenance is made, although it is subject to ultimate recognition of neglect or refusal to maintain.

(3.) IN the light of the above discussion Sub -section (2) ibid in our considered opinion cannot be interpreted in a manner so as to conclude that normal rule is to make maintenance allowance payable from the date of the order and to make the same payable from the date of the application amounts to an exception to the said rule. A reading of the said sub -section would, on the other hand, show that it is discretionary with the trial Court either to grant the allowance from the date of the order or from the date of application. There is no indication whatsoever in the language used by the legislation that if maintenance is allowed from the date of the application, some special reasons have to be given for the purpose. That sub -section simply makes it discretionary for the Magistrate to award maintenance either from the date of order or from the date of application. It only provides outer, limits so as to conclude that the Magistrate cannot fix future date for example two months subsequent to the passing of the order for payment of maintenance allowance nor earlier to the date of application, i.e., with retrospective effect. It is, therefore, not obligatory for the Court to give special reasons for granting maintenance/interim maintenance under Section 125 of the Code, from the date of the application which is purely within its discretion.