The basic learning from this judgment seems to be that wife’s property, income sources must be considered in CrPC 125.  Also, the order of maintenance if made to pay from date of application, need not record the reasons for doing so.  In general it is payable from date of order.

The full text of judgment is below.  The important portions are made bold so you can read them for a quick understanding of the main points.

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*Court* : Supreme Court of India
*Brief* : : Section 125 Cr.P.C. Quantum of maintenance
*Citation : *CIVIL APPEAL NO. 4666 OF 2008 SHAIL KUMARI DEVI & ANR. Vs
KRISHAN BHAGWAN PATHAK @ KISHUN B. PATHAK
*Judgment :*
J U D G M E N T
C.K. THAKKER, J.
1. Leave granted.
2. The present appeal is filed by appellant No.1-wife and appellant
No.2-daughter of respondent herein-Krishan Bhagwan Pathak The appellants
have approached this Court being aggrieved by the judgment and order passed
by the High Court of Judicature at Patna on May 3, 2007 in Criminal Revision
No. 67 of 2007. By the said order, the High Court partly allowed the
revision filed by the respondent-husband and modified the order passed by
the Court of Principal Judge, Family Court, Bhojpur on October 30, 2006 in
Miscellaneous Case No. 280 of 1997, renumbered as No.1 of 2005.
3. Shortly stated the facts of the case are that the marriage between
appellant No.1 and the respondent was solemnized according to Hindu rites,
customs and ceremonies before more than three decades. From the said
wedlock, nine children were born. Appellant No.2-Kumari Babli is the
youngest among all and she is the only child staying with her
mother-appellant No.1. At the time of filing of the application, she was of
twelve years.
4. On July 21, 1997, the appellants filed a case for maintenance in the
Court of Chief
Judicial Magistrate, Bhojpur under Section 125 of the Code of Criminal
Procedure, 1973 (hereinafter referred to as `the Code') (Misc. Case No. 280
of 1997) claiming maintenance of Rs.500/- p.m. for appellant No.1 and
Rs.500/- p.m. for appellant No.2. It was the case of the appellant No.1 that
her husband had neglected to maintain his wife-appellant No.1 as also his
legitimate daughter-appellant No.2. On November 20, 1999, an application was
filed by the appellants requesting the Court to grant `interim' maintenance
during the pendency of proceedings before the Court. The learned Chief
Judicial Magistrate allowed the said application, granted the prayer and
fixed interim maintenance at the rate of Rs.300/- p.m. for each of the
applicants with effect from February 12, 1998. The parties, thereafter, led
the evidence which was closed on September 3, 2001 and the case was
adjourned for final arguments. During the pendency of proceedings, however,
Family Court came to be established and the case was transferred to the
Principal Judge, Family Court, Bhojpur.

5. From the evidence, it was clear that the respondent was working as
Cashier with the State Bank of India, Bihita Branch and was getting gross
salary of Rs.18,508-98. After deduction, his pay packet was of Rs.9,831-76.
The respondent retired from service in January, 2006. The appellants filed a
petition on September 12, 2006 with a prayer to direct the respondent to pay
arrears of maintenance which came to Rs.11,600/- and the Family Court on
October 30, 2006, allowed the application and directed the respondent to pay
the entire amount of the arrears in lump sum by the next date of hearing.
6. The matter was finally disposed of by the Family Court on November 29,
2006 and the learned Principal Judge of the Family Court directed the
respondent to pay maintenance of Rs.2,000/- p.m. to applicant-appellant
No.1- wife and Rs.1,000/- p.m. to applicant-appellant No.2-minor daughter
with effect from the date of application i.e. July 21, 1997 with further
order to pay arrears within three months of the order after deducting the
amount which had already been paid under the interim order passed by the
Court earlier.
7. The appellant was dissatisfied with the order passed by the Principal
Judge of the Family Court and preferred Criminal Revision No. 67 of 2007 in
the High Court.
8. The High Court partly allowed the Revision and modified the direction
issued by the Family Court. The High Court reduced the amount of maintenance
from Rs.2,000/- to Rs.750/- to appellant No.1-wife and from Rs.1,000/- to
Rs.750/- to appellant No.2- daughter. The High Court also directed that the
amount of maintenance would be payable to the applicants-appellants not from
the date of the application i.e. July 21, 1997 but from the date of the
order i.e. November 29, 2006. The said order is challenged by the appellants
in the present appeal.
9. On September 5, 2007, the matter was placed for admission hearing. Delay
of eight days in filing Special Leave Petition was condoned and notice was
issued to the respondent. Considering the nature of the litigation, the
Registry was directed by an order dated April 16, 2008 to place the matter
for final disposal on a non-miscellaneous day and that is how the matter is
placed before us.
10. We have heard learned counsel for the parties.
11. Learned counsel for the appellants contended that the High Court was
wrong in partly allowing Revision filed by the respondent and in modifying
the directions issued by the Family Court. It was submitted that the High
Court was in clear error in reducing the amount of maintenance to appellant
No.1-wife and appellant No.2-daughter. Similarly, the High Court was in
error in holding that the appellants were not entitled to maintenance from
the date of application but only from the date of order passed by the Court.
It was, therefore, submitted that the order passed by the High Court
deserves to be set aside by restoring the order of the Family Court.
12. The learned counsel for the respondent, on the other hand, supported the
order passed by the High Court. It was urged that the Family Court was not
right in granting maintenance to the appellants from the date of
application. It was submitted that the Family Court was again wrong in
allowing maintenance of more than Rs.500/- either to appellant No.1- wife or
to appellant No.2-daughter before 2001 when the relevant provisions of law
(Section 125 of the Code as it then stood), allowed Rs.500/- p.m. as maximum
amount of maintenance. The High Court was, therefore, justified in reducing
the amount as also issuing direction to make payment from the date of the
order. It was also urged that no `interim' maintenance could have been
awarded before the amendment in the Code in 2001.

13. The counsel submitted that even on merits, the Family Court was not
justified in ignoring the evidence on record and in granting maintenance to
wife observing that appellant No.1 was unable to maintain herself. The
evidence clearly revealed, submitted the counsel, that some of the
properties of the respondent-husband were with the appellant No.1-wife. She
has also inherited land from her father. Those facts, therefore, ought to
have been taken into account by the Family Court in fixing the amount of
compensation. On all these grounds, it was submitted that no interference in
the order passed by the High Court is called for in exercise of
discretionary jurisdiction under Article 136 of the Constitution and the
appeal deserves to be dismissed.
14. Three questions arise for our consideration; (i) whether interim
maintenance could be awarded in absence of specific and express provision in
the Code; (ii) whether the applicant-wife and her daughter are entitled to
maintenance from the date of the order passed by the Family Court or from
the date of application made by them under Section 125 of the Code; and
(iii) what could be the amount of maintenance which could be awarded by the
Court.

15. Before we proceed to consider these questions, it would be appropriate
if we examine the relevant provisions of law. Sub-sections (1) and (2) of
Section 125 of the Code, as they were originally enacted in 1973,
read thus:
125.Order for maintenance of wives, children and parents.- (1) If any person
having sufficient means neglects or refuses to maintain-
(a) his wife, unable to maintain herself, or
(b) his legitimate or illegitimate minor child, whether married or not,
unable to maintain itself, or
(c) his legitimate or illegitimate child (not being a married daughter) who
has attained majority, where such child is by reason of any physical or
mental abnormality or injury unable to maintain itself, or
(d) his father or mother, unable to maintain himself or herself, a
Magistrate of the first class may, upon proof of such neglect or refusal,
order such person to make a monthly allowance for the maintenance of his
wife or such child, father or mother, at such monthly rate not exceeding
five hundred rupees in the whole, as such Magistrate thinks fit, and to pay
the same to such person as the Magistrate may from time to time
direct:
Provided that the Magistrate may order the father of a minor female child
referred to in clause (b) to make such allowance, until she attains her
majority, if the Magistrate is satisfied that the husband of such minor
female child, if married, is not possessed of sufficient means.
Explanation.- For the purposes of this
Chapter, -
(a) "minor" means a person who, under the provisions of the Indian Majority
Act, 1875( 9 of 1875) is deemed not to have attained his majority;
(b) "wife" includes a woman who has been divorced by, or has obtained a
divorce from, her husband and has not remarried.
(2) Such allowance shall be payable from the date of the order, or, if so
ordered, from the date of the application for maintenance.
(emphasis supplied)

16. Bare reading of sub-section (1) of Section 125 leaves no room for doubt
that if any person having sufficient means, neglects or refuses to maintain
his wife who is unable to maintain herself or his legitimate (or
illegitimate) child (children) unable to maintain itself (themselves), or
his father, or mother, unable to maintain himself or herself, a Court, upon
proof of negligence or refusal, order such person to pay maintenance to his
wife or child (children) or parents, as the case may be. It is also clear
that maximum amount which could be ordered to be paid was Rs.500/- p.m.
which was clear from the expression "not exceeding Rs.500/- in the whole".
17. It is further clear that under sub-section (2), such maintenance can be
made payable "from the date of order" or "if so ordered, from the date of
the application for maintenance".
18. By the Code of Criminal Procedure (Amendment) Act, 2001 (Act 50 of
2001), sub-sections (1) and (2) came to be amended with effect from
September 24, 2001. The amended sub-sections now read thus:
125.Order for maintenance of wives,
children and parents.- (1) If any
person having sufficient means
neglects or refuses to maintain-
(a) his wife, unable to maintain
herself, or
(b) his legitimate or illegitimate
minor child, whether married or not,
unable to maintain itself, or
(c) his legitimate or illegitimate
child (not being a married daughter)
who has attained majority, where such
child is by reason of any physical or
mental abnormality or injury unable to
maintain itself, or
(d) his father or mother, unable to
maintain himself or herself,
a Magistrate of the first class may,
upon proof of such neglect or refusal,
order such person to make a monthly
allowance for the maintenance of his
wife or such child, father or mother,
at such monthly rate, as such
Magistrate thinks fit, and to pay the
same to such person as the Magistrate
may from time to time direct:
Provided that the Magistrate may order
the father of a minor female child
referred to in clause (b) to make such
allowance, until she attains her
majority, if the Magistrate is
satisfied that the husband of such
minor female child, if married, is not
possessed of sufficient means.
Provided further that the Magistrate
may, during the pungency of the
proceeding regarding monthly allowance
for the maintenance under this sub-
section, order such person to make a
monthly allowance for the interim
maintenance of his wife or such child,
father or mother, and the expenses of
such proceeding which the Magistrate
considers reasonable, and to pay the
same to such person as the Magistrate
may from time to time direct:
Provided also that an application for
the monthly allowance for the interim
maintenance and expenses of proceeding
under the second proviso shall, as far
as possible, be disposed of within
sixty days from the date of the
service of notice of the application
to such person.
Explanation.- For the purposes of this
Chapter, -
(a) "minor" means a person who, under
the provisions of the Indian Majority
Act, 1875( 9 of 1875) is deemed not to
have attained his majority;
(b) "wife" includes a woman who has
been divorced by, or has obtained a
divorce from, her husband and has not
remarried.
(2) Any such allowance for the
maintenance or interim maintenance and
expenses of proceeding shall be
payable from the date of the order,
or, if so ordered, from the date of
the application for maintenance or
interim maintenance and expenses of
proceeding, as the case may be.
(emphasis
supplied)
19. It is apparent that the ceiling which was fixed under the original
enactment of 1973 of Rs.500/- p.m. has been removed and now it is open to a
Court under the amended law to fix such amount as it `thinks fit'.
20. Again, there is no substantial change so far as the date of payment is
concerned. Under sub-section (2) as originally enacted, it was provided that
such maintenance could be made payable from the date of the order or if so
ordered, from the date of application. Even after the amendment of 2001, an
order for payment of maintenance can be made by a Court either from the date
of the order or where an express order is made to pay maintenance from the
date of application, then the amount of maintenance can be paid from that
date, i.e. from the date of application.
21. So far as `interim' maintenance is concerned, it is true that Section
125 of the Code as it originally enacted did not expressly empower the
Magistrate to make such order and direct payment of interim maintenance. But
the Code equally did not prohibit the Magistrate from making such order.
Now, having regard to the nature of proceedings, the primary object to
secure relief to deserted and destitute wives, discarded and neglected
children and disabled and helpless parents and to ensure that no wife, child
or parent is left beggared and destitute on the scrap-heap of society so as
to be tempted to commit crime or to tempt others to commit crime in regard
to them, it was held that the Magistrate had `implied power' to make such
order. The jurisdiction of the Magistrate under Chapter IX (Order for
Maintenance of Wives, Children and Parents) is not strictly criminal in
nature. Moreover, the remedy provided by Section 125 of the Code is a
summary remedy for securing reasonable sum by way of maintenance subject to
a decree passed by a competent civil Court. Hence, in absence of any express
bar or prohibition, Section 125 could be interpreted as conferring power by
necessary implication to make interim order of maintenance subject to final
outcome in the application.

22. A direct question came up for consideration
before this Court in Savitri v. Govind Singh Rawat, (1985) 4 SCC 337 : 1986
CriLJ 41. The Court considered that though there was no specific provision
for grant of interim maintenance, considering the object underlying the
provision and social purpose behind the legislation, such a power must be
conceded to the Court.
23. Speaking for the Court, Venkataramaiah, J. (as His Lordship then was)
observed;
"It is true that there is no express provision in the Code which authorises
a magistrate to make an interim order directing payment of maintenance
pending disposal of an application for maintenance. The Code does not also
expressly prohibit the making of such an order. The question is whether such
a power can be implied to be vested in a magistrate having regard to the
nature of the proceedings under Section 125 and other cognate
provisions found in Chapter IX of the Code which is entitled "Order For
Maintenance of Wives, Children and Parents". Section 125 of the Code
confers power on a magistrate of the first class to direct a person having
sufficient means but who neglects or refuses to maintain (i) his wife,
unable to maintain herself, or (ii) his legitimate or illegitimate minor
child, whether married or not, unable to maintain itself, or (iii) his
legitimate or illegitimate child (not being a married daughter) who has
attained majority, where such child is, by reason of any physical or
mental abnormality or injury unable to maintain itself or (iv) his father or
mother, unable to maintain himself or herself, upon proof of such neglect or
refusal, to pay a monthly allowance for the maintenance of his wife or
such child, father or mother, as the case may be, at such monthly rate not
exceeding five hundred rupees in the whole as such magistrate thinks fit.
Such allowance shall be payable from the date of the order, or, if so
ordered from the date of the application for maintenance".
24. Interpreting the relevant provisions of the Code, putting emphasis on
the duty of a person liable to pay maintenance and applying the principle of
`social justice', His Lordship proceeded to state;
"In view of the foregoing it is the duty of the court to interpret
the provisions in Chapter IX of the Code in such a way that the
construction placed on them would not defeat the very object of the
legislation. In the absence of any express prohibition, it is
appropriate to construe the provisions in Chapter IX as
conferring an implied power on the magistrate to direct the person
against whom an application is made under Section 125 of the Code to pay
some reasonable sum by way of maintenance to the applicant pending final
disposal of the application. It is quite common that applications made under
Section 125 of the Code also take several months for being disposed of
finally. In order to enjoy the fruits of the proceedings under Section 125,
the applicant should be alive till the date of the final order and that the
applicant can do in a large number of cases only if an order for payment of
interim maintenance is passed by the court. Every court must be deemed to
possess by necessary intendment all such powers as are necessary to make its
orders effective. This principle is embodied in the maxim ubi aliquid
conceditur, conceditur et id sine quo res ipsa esse non potest (Where
anything is conceded, there is conceded also anything without which the
thing itself cannot exist.) (Vide Earl Jowitt's Dictionary of English Law
1959 Edn. P. 1797). Whenever anything is required to be done by law and it
is found impossible to do that thing unless something not authorised in
express terms be also done then that something else will be supplied by
necessary intendment. Such a construction though it may not always be
admissible in the present case however would advance the object of the
legislation under consideration. A contrary view is likely to result in
grave hardship to the applicant, who may have no means to subsist until the
final order is passed. There is no room for the apprehension that the
recognition of such implied power would lead to the passing of interim
orders in a large number of cases where the liability to pay maintenance may
not exist. It is quite possible that such contingency may arise in a few
cases but the prejudice caused thereby to the person against whom it is made
is minimal as it can be set right quickly after hearing both the parties.
The magistrate, may, however, insist upon an affidavit being filed by or on
behalf of the applicant concerned stating the grounds in support of the
claim for interim maintenance to satisfy himself that there is a prima facie
case for making such an order. Such an order may also be made in an
appropriate case ex parte pending service of notice of the application
subject to any modification or even an order of cancellation that may be
passed after the respondent is heard. If a civil court can pass such interim
orders on affidavits, there is no reason why a magistrate should not rely on
them for the purpose of issuing directions regarding payment of interim
maintenance. The affidavit may be treated as supplying prima facie proof of
the case of the applicant. If the allegations in the application or the
affidavit are not true, it is always open to the person against whom such an
order is made to show that the order is unsustainable. Having regard to the
nature of the jurisdiction exercised by a magistrate under Section 125 of
the Code, we feel that the said provision should be interpreted as
conferring power by necessary implication on the magistrate to pass an order
directing a person against whom an application is made under it to pay a
reasonable
sum by way of interim maintenance subject to the other conditions referred
to there pending final disposal of the application".
(emphasis supplied)
25. Parliament considered the object of the legislation, the decision of
this Court in Savitri and the fact that though the remedy is of a summary
nature, the applicant who is unable to maintain herself may have to wait for
`several years' for getting such relief. It, therefore, amended the
provision expressly authorizing the Magistrate to grant interim maintenance.
26. In the Statement of Objects and Reasons, it was stated; "It has been
observed that an applicant, after filing application in a Court under
Section 125 of the Code of Criminal Procedure, 1973, has to wait for several
years for getting relief from the Court. It is, therefore, felt that express
provisions should be made in the said Code for interim maintenance allowance
to the aggrieved person under said Section 125 of the Code. Accordingly, it
is proposed that during the pendency of the proceedings, the Magistrate may
order payment of interim maintenance allowance and such expenses of the
proceedings as the Magistrate considers reasonable, to the aggrieved person.
It is also proposed that the order be made ordinarily within sixty days from
the date of the service of the notice".
27. In view of the decision of this Court in Savitri, in our opinion, the
learned Magistrate was right and wholly justified in ordering interim
maintenance by an order dated November 20, 1998. We see no infirmity in that
part of the order and hold that interim maintenance could have been granted
by the learned Magistrate even before the amendment of Section 125 in 2001.
28. Regarding date from which such amount should be paid to the appellants,
the Family Court held that the appellants would be entitled to claim
maintenance from the date of application i.e. July 21, 1997.
29. The Family Court stated; "This order will be effective from the date of
application i.e. 21.7.1997. The opposite party is directed to pay the
arrears within three months of this order and shall pay the current monthly
amount of maintenance by 15th of every succeeding months."
(emphasis supplied)
30. The Family Court thus exercised the power under sub-section (2) of
Section 125 which enables the Court to make an order whether the applicant
would be entitled to maintenance from the date of the order or from the date
of the application. The Family Court ordered payment of maintenance from the
date of application.
31. The High Court, however, set aside that part of the order of the Family
Court. It, inter alia, observed;
"On a consideration of the aforesaid arguments of the parties, this Court
finds that the court below has not considered the present matter in a proper
manner and keeping in view the purpose of the provisions of Section 125 of
the Code. As held in a catena of decisions, the purpose of the said
provision is to prevent vagrancy and destitution and essentially to
financially support the deserted wife or other to say that her own son has
grabbed the property and that she will sit back and will take no steps in
the matter. As a matter of fact, under Section 125 of the Code of Criminal
Procedure itself, it is the duty of the son to maintain his father and
mother, if they are unable to maintain themselves; whereas the court has not
even considered the said fact. When the petitioner has raised the issue that
the opposite party has income from the land and house of her matrimonial
village, the same ought not to have been ignored by the Court in the manner,
which has been done. It raises the strong suspicion that the Court below had
made up its mind to disbelieve everything that was stated on behalf of the
petitioner and believe the contention of the opposite party, which is not
the correct way of looking at the evidence that comes in course of the said
proceedings. It is for the court, in such matter, to consider the
probability of the facts and then to come to a fair conclusion as to what is
the real state of affairs. From the impugned order, it does not appear that
any such attempt has been made by the Court below and even the important
admission made by the opposite party No.1 has been lost sight of by the
Court below.
In the aforesaid view of the matter, this Court does not find that the Court
below has rightly looked into the aspect of the matter. The Court below has
also not considered as to what was the justification for passing an order
for maintenance from the date of application, which goes back to more than 9
years from the date of the order. As laid down in the decision of this Court
such an order may be necessitated if the party shows the dire need of money
for the purpose of maintaining herself, for which she had to raise debts,
during the period when the application had been pending. There is no such
material on the record, rather the opposite party was getting interim
maintenance from November, 1998 itself by order dated 20.11.1998 although as
a matter of fact the provision for interim maintenance has been brought into
existence for the first time by the Amendment Act, 2001 with effect from
24.9.2001. However, since the said order is not under challenge, therefore,
this Court would not like to go into that issue any further. In any case, it
is a relevant fact that right from 1998, opposite party Nos. 1 and 2, have
been paid interim maintenance, by which they had managed to sustain
themselves during that period and thus there is no reason for passing the
order to pay maintenance with effect from the date of application going back
more than 9 years from the date of passing of the said order."
(emphasis supplied)
32. The above observations manifestly show that according to the High Court,
there must be justification on the part of the Court in making the order of
maintenance from the date of the application rather than from the date of
the order. As there was no such reason granting maintenance from the date of
the application, the Family Court was not justified in doing so. To that
extent, therefore, the order passed by the Family Court was vulnerable and
accordingly, it was set aside by granting maintenance from the date of the
order passed by the Family Court.
33. Now, no direct decision of this Court is available on the point as to
from which date a Magistrate may order payment of maintenance to wife,
children or parents. We may, however, refer to decisions of some High
Courts.
34. It seems that there is a cleavage of opinion on the question. According
to one view, since sub-section (2) of Section 125 declares that maintenance
shall be payable "from the date of the order", or, "if so ordered, from the
date of application for maintenance", normal rule is that a Magistrate
should pass an order directing payment of maintenance only from the date of
the order. If he decides to deviate that course and makes an order granting
maintenance not from the date of the order but from the date of application
for maintenance, he must record reasons in support of such order [vide Mohd.
Inaytullah Khan v. Salma Bano, 1983 Jab LJ 55, Rameshwar v. Ramibai, 1987
CrLJ 1952 (MP), Lachhmani v. Ramu, (1983) 1 Crimes 590 MP, Qamruddin v. Smt.
Rashida, (1992) 1 WLC 305 (Raj), Shyamlal v. Mansha Bai, 1998 CrLJ 2704
(Raj), Mohd. Ismail v. Bilquees Bano, 1998 CrLJ 2803 (All), Nitha Ranjan
Chakraborty v. Smt. Kalpana Chakraborty, 2002 CrLJ 4768 (Cal), Samaydin v.
State of U.P. & Anr., 2001 CrLJ 2064 (All)].
35. The High Court, in the impugned order, also referred to a decision in
Bijay Kapri v.Smt. Kanishta Devi & Anr., (2000) 2 PLJR 241, wherein it was
held that such order could be necessitated if the party shows `dire need' of
the money for the purpose of maintaining herself for which she had raised
debts during the period when the application had been pending. No such
material had been brought on record. Rather, the applicants were getting
interim maintenance from November, 1998 by an order passed by the Magistrate
though such provision of interim maintenance had been brought in the statute
book for the first time by the Amendment Act, 2001 with effect from
September 24, 2001.
36. In Samaydin, the High Court of Allahabad observed that there may not be
a discussion of such circumstances which warranted the Court to allow it to
grant maintenance from the date of application. But, no other inference is
permissible in the light of the language of sub-section (2) of Section 125.
The Court, by way of illustrative cases considered certain situations, such
as, `dilatory tactics adopted by the husband in the disposal of the
proceeding', `untold cruelty practised against wife', etc. In absence of
special circumstances, however, maintenance cannot be ordered from the date
of application.
37. Some other High Courts, have taken a contrary view. It was held that
normally, maintenance should be granted from the date of the application and
not from the date of the order. If the Magistrate is inclined to make an
order granting maintenance from the date of the order and not from the date
of application, he should record reasons to do so.
38. In Gnanaselvi & Ors. v. Illavarasan, (1999) 1 Crimes 22 (Mad), the High
Court of Madras observed that when the wife approaches a Court claiming
maintenance by filing application on the ground that she is not able to
maintain herself, it is for her to prove such inability from the date of
application. Hence, when the Court ultimately decides after conducting the
inquiry that she is entitled to maintenance, the said decision must
necessarily be based upon the material showing that the wife was unable to
maintain herself when she filed an application. As a general rule,
therefore, the Magistrate should pass an order directing maintenance from
the date of application. It was also observed that the remedy is a speedy
remedy and summary procedure is provided by the statute. Despite this,
usually, in such proceedings, the Court notices that the husband does not
allow the proceedings to go on by raising one objection or the other.
The Court is required to deal with all such objections, which takes time.
Again, even after the order is passed, the husband rushes to the higher forum and challenges

it. Sometimes, he obtains interim orders which results in further delay. The

deserted wife and children are the sufferers who seek shelter of the
protective umbrella provided by Section 125 of the Code. If maintenance is
not granted from the date of application, the weaker sections are sure to
lose confidence in the justice delivery system. The Court noted the deep
concern expressed by this Court in P.N. Duda v. P. Shiv Shankar, (1988) 3
SCC 167 that "justice cries in silence for long, far too long".
39. In Amarjit Kaur v. Sartaz Zingh, 1996 CriLJ 4476 (P&H), the High Court
of Punjab & Haryana held that sub-section (2) of Section 125 does not
require the Magistrate to record special reasons for granting maintenance
from the date of application. What it says is that if the order is silent as
to the date from which such maintenance is payable, it has to be paid from
the date of the order. Where, however, the maintenance is to be paid from
the date of the application itself, then there should be a specific order in
that behalf by the Court. There is nothing in the statutory provision to
hold that the Magistrate must record special reasons if he is to order that
maintenance shall be payable from the date of application.
40. In Krishna Jain v. Dharam Raj Jain, 1992 CriLJ 1028 (MP), the Division
Bench of High Court of Madhya Pradesh considered the ambit and scope of
sub-section (2) of Section 125 in the light of other provisions of the Code.
It overruled Mohd. Inaytullah Khan, Rameshwar and Lachhmani referred to
above and held that plain reading of sub-section (2) of Section 125 makes it
clear that allowance of maintenance can be awarded from the date of the
order or from the date of the application. To hold that, normally
maintenance should be made payable from the date of the order and not from
the date of the application unless such order is backed by reasons would
amount to inserting something more in the sub-section which the Legislature
never intended. The Court observed that it was unable to read in sub-section
(2) laying down any rule to award maintenance from the date of the order or
that the grant from the date of the application is an exception.
41. Regarding recording of reasons, the Bench observed that in either case
i.e. grant of maintenance from the date of the order or from the date of the
application, the Court is required to record reasons. The Court referred
to sub-section (6) of Section 354 of the Code which reads thus:
(6) Every order under Section 117 or sub-section (2) of Section 138 and
every final order made under Section 125, Section 145 or Section 147 shall
contain the point or points for determination, the decision thereon and the
reasons for the decision.
(emphasis supplied)
42. It was, therefore, observed that every final order under Section 125 of
the Code [and other Sections referred to in sub section (c) of Section 354]
must contain points for determination, the decision thereon and the reasons
for such decision.
43. Our attention was also invited to a decision in K. Sivaram v. K.
Mangalamba & Ors., 1990 CrLJ 1880 (AP). In K. Sivaram, a single Judge of the
High Court of Andhra Pradesh negatived the argument on behalf of the husband
that the maintenance could be awarded from the date of the order and such
maintenance could be granted from the date of the application only by
recording special reasons.The Court held that it is the discretion conferred
on the Court by the Code to award maintenance either from the date of the
order or from the date of the petition as per the circumstances of the case.
The Code also noted that wherever Parliament wanted special reasons to be
recorded for passing a particular order, specific provision has been made to
that effect [See sub-section (3) of Section 167 of the Code (default bail),
Section 361 (refusal to grant probation) etc].
44. In our considered opinion, the High Court is not right in holding that
as a normal rule, the Magistrate should grant maintenance only from the date
of the order and not from the date of the application for maintenance. And
if he intents to pass such an order, he is required to record reasons in
support of such order. As observed in K. Sivaram, reasons have to be
recorded in both the eventualities. The Court was also right in observing
that wherever Parliament intended the Court to record special reasons, care
had been taken to make such provision by requiring the Court to record such
reasons.

45. Moreover, duration of litigation is not within the power or in the hands
of the applicant and entitlement to maintenance should not be left to the
uncertain date of disposal of the case. Keeping in view this hard reality,
this Court in Savitri held that in absence of prohibition to grant `interim'
maintenance such power could be read in the salutary provision of Section
125 of the Code ensuring maintenance to unable wife to maintain herself
during the pendency of proceedings. Even Parliament took into account the
reality and by the Amendment Act, 2001 express provision has been made for
the purpose.
46. Again, maintenance is a right which accrues to a wife against her
husband the minute the former gets married to the latter. It is not only a
moral obligation but is also a legal duty cast upon the husband to maintain
his wife. Hence, whenever a wife does not stay with her husband and claims
maintenance, the only question which the Court is called upon to consider is
whether she was justified to live separately from her husband and still
claim maintenance from him? If the reply is in the affirmative, she is
entitled to claim maintenance. It is, therefore, open to the Magistrate to
award maintenance from the date
of application and there is nothing which requires recording of `special
reasons' though he must record reasons as envisaged by sub-section (6) of
Section 354 of the Code in support of the order passed by him.
47. We, therefore, hold that while deciding an application under Section 125
of the code, a Magistrate is required to record reasons for granting or
refusing to grant maintenance to wives, children or parents.
Such maintenance can be awarded from the date of the order, or, if so
ordered, from the date of the application for maintenance, as the case may
be. For awarding maintenance from the date of the application, express order
is necessary. No special reasons, however, are required to be recorded by
the Court. In our Judgment, no such requirement can be read in sub section
(l) of Section 125 of the Code in absence of express provision to that
effect.
48. The last question relates to quantum of amount of maintenance. The
Family Court granted maintenance to the appellants--wife as well as
daughter--at the rate of Rs.2000/- and Rs. 1000/- respectively from the date
of application i.e. July 21, 1997. We have reproduced the relevant part of
Section 125 as
originally enacted and as amended by the Amendment Act, 2001. Before the
amendment of 2001, the ceiling was Rs.500/-. In our opinion, therefore, the
Family Court could not have granted maintenance exceeding Rs.500/- p.m
either to appellant No.1 or appellant No.2 from the date of application i.e.
July 21, 1997. At the most, such an order could have been made effective
from the date the Amendment Act, 2001 came into force. To that extent,
therefore, the order passed by the Family Court was not in accordance with
law.
49. But even on merits, the Family court was not right in fixing the amount
of maintenance. The learned counsel for the respondent took us to the
evidence adduced by the parties. From the material on record, it is clear
that the appellant No.1-wife is residing in the house belonging to the
respondent-husband and such finding has been recorded even by the Family
Court. It is also in evidence that she was receiving income from the land in
her possession which belonged to her husband-respondent herein. It is true
that the respondent could not state as to the actual amount received by the
wife from the cultivation of the land. But it is also one of the
considerations which is relevant and material while fixing the amount of
maintenance. Moreover, appellant No.1 has inherited some land from her
father.

50. In view of overall facts and circumstances, in our opinion, ends of
justice would be served if we hold that both the appellants are entitled to
an amount of Rs.1000/- each per month as maintenance. As already clarified,
the appellants would be entitled to the said amount of maintenance from the
date the Amendment Act, 2001 came into force. i.e. September 24, 2001. So
far as the order of payment of `interim' maintenance passed by the
Magistrate is concerned, the same was in consonance with law and no
interference is called for.
51. For the foregoing reasons, the appeal deserves to be partly allowed and
is accordingly allowed to the extent indicated above.