BHAGAT SINGH Vs. PARKASH KAUR

JUDGEMENT

(1.) BY his order dated the 21st of December, 1956, Shri H. K. Lall, Magistrate 1st Class. Amritsar. directed the petitioner under Section 488 of the-Code of Criminal Procedure to provide a monthly allowance of Rs. 50/- to his wife Shrimati Parkash Kaur and to his two minor children from her, namely, a son named Dhir Singh and daughter named Bhiro, all three of whom are respondents to the petitioner before me. On the 19th of September, 1967, the three respondents made an application under Section 489 of the Code for enhancement of the maintenance allowance from Rs. 50/- to Rs. 150/- per mensem. That application was allowed by Shri J. S. Bhullar, Judicial Magistrate 1st Class. Amritsar, who directed that maintenance at the enhanced rate would be payable from the date of the application, i. e. the 19th of September, 1967. A petition for revision of the order passed by Shri Bhullar was made by the petitioner to the Sessions Court. Amritsar but was dismissed on the 17th of November, 1970 by Shri M. L. Mirchia. Additional Sessions Judge, Amritsar, and that is why the petitioner has come up in revision to this Court.

(2.) IT is common ground between the parties that when maintenance allowance for the three respondents was fixed by Shri H. K. Lall in the year 1956, the petitioner was drawing a salary of Rs. 200/- per mensem only which had, over the years, risen to Rs. 522/- per mensem in 1968. It is further admitted on all hands that the petitioner owns 99 kanals odd of land, a considerable portion of which is canal and tubewell irrigated. The prices of commodities in general have gone up manifold during the last decade and while the income of the petitioner from his land has risen proportionately, the respondents need more money to make both ends meet. While the necessity for a reasonable increase in the maintenance allowance awarded in 1956 is thus patent, the capacity of the petitioner to bear such increase is also undoubted. I cannot in these premises concur with learned Counsel for the petitioner that the enhancement allowed by Shri Bhullar is excessive either because of the petitioner not having the capacity to pay it or for the reason that it is more than the respondents' need.

(3.) THE learned Additional Sessions Judge turned down a contention raised on behalf of the petitioner that Section 489 of the Code of Criminal Procedure did not permit an increase in the monthly allowance to take effect from the date when it is asked for and that it can be awarded only prospectively. The contention has been repeated before me and support for it is sought in J. H. Amroon v. Miss R. Sassoon AIR 1949 Cal 584 Blank J. , who decided that case, held that Sub-section (2) of Section 488 of the Code which runs thus-488. (2) Such allowance shall be payable from the date of the order, or if so ordered from the date of the application for maintenance. could not operate in the case of an order under Section 489 whrein it was not repeated and that an order of that type could not be made so as to take effect retrospectively. The weight of authority, however, is against the view expressed by Blank, J. In AIR 1958 Mys 190 : 1958 Cri LJ 1522 K. S. Hegde, J. (now a Judge of the Supreme Court) held that Section 489 has no independent existence and must be considered as a part of and read as a proviso to Section 488 (1) so that Sub-section (2) of Section 488 would apply as mush to an order passed under Sub-section (1) thereof as to an order passed under Section 489. This was also the view taken by T. C. Raghavan, J. in Parameswara Moothar v. Balameenakshi. With all respect I am of the opinion that this is the correct view and that the learned Magistrate had the jurisdiction to make the enhancement in the maintenance allowance effective from the date when it was asked for.