Maintenance – when to be started
• Introduction : Marriage is the base of formation of family, the basic unit of society.It is the union of two tied with love, purity, emotions and sentiments.There are various rights and obligations of both as husband and wife towards each other which are arisen out of the marriage.Where wife is obliged to take care of house, family and children of both of them and husband is obliged to maintain all of them through his earnings.These both are supposed to play their roles with dedication to keep their union or family happy and satisfied.But if any of the union is not performing its duties then their is the possibility of conflicts and dissatisfication to the other part of union or partner of person.One of the situations is when husband refuses to maintain his wife.Then wife is entitled to get maintained by his husband through the court of law.
• Question of law : But When it’s comes to law there is a controversial question as to when the maintenance is to be started, from the date of order or from the date of application.
• Provisons of law : In Indian law there are some provisions related to maintenance of wife, these are as follows:
– Code of Criminal Procedure : Section 125(1) of CrPc states that
“If any person having sufficient means neglects or refuses to maintain his wife, unable to maintain herself.” Then 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.
And Section 125(2) states that Such allowance shall be payable from the date of the order, or, if so ordered, from the date of the application for maintenance.
– Hindu Marriage Act, 1955 : Section 24 states that
Maintenance pendente lite and expenses of proceedings-Where in any proceeding under this Act it appears to the court that either the wife or the husband, as the case may be, has no independent income sufficient for her or his support and the necessary expenses of the proceeding, it may, on the application of the wife or the husband, order the respondent to pay to the petitioner the expenses of the proceeding, and monthly during the proceeding such sum as, having regard to the petitioner’s own income and the income of the respondent, it may seem to the court to be reasonable.
[Provided that the application for the payment of the expenses of the proceeding and such monthly sum during the proceeding, shall, as far as possible, be disposed of within sixty days from the date of service of notice on the wife or the husband, as the case may be.]
– The Protection of Women from Domestic Violence Act, 2005 : Section 20(1) of the Act states that the Magistrate may direct the respondent to pay monetary relief to meet the expenses incurred and losses suffered by the aggrieved person and any child of the aggrieved person as a result of the domestic violence.
Clause (d) states that the maintenance for the aggrieved person as well as her children, if any, including an order under or in addition to an order of maintenance under section 125 of the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force.
Section 12(5) of the Act states that The Magistrate shall endeavour to dispose of every application made under sub-section (1) within a period of sixty days from the date of its first hearing.
– Hindu Adoptions and Maintenance Act, 1956 : Section 18 of the Act provides for maintenance of wife and Clause (1) states that Subject to the provisions of this section, a Hindu wife, whether married before or after the commencement of this Act, shall be entitled to be maintained by her husband during her life time.
But there is no clarification of moment from when maintenance shall start.
– Concluding the provisions of law, General Rule as per Section 125 of CrPC is that maintenance shall be given from the date of order but in exceptional cases, magistrate may order it to be payable from the date of its application.
• Conflicting views of various High Courts on this question of law :
– Allahabad High Court in case Bina Devi V. State of Uttar Pradesh (2010)
Held that If the order is silent, it will be effective from the date of order. For which reason need to be recorded. The court held that Section 125(2) CrPC is prina facie clear that maintenance shall payable from the date of order. In exceptional cases magistrate may order it to be payable from the date of application with reason recorded.
– Madhya Pradesh High Court In case Sameer Banerjee V. Sujata Banerjee
Held that Section 24 of HMA is silent so court can use its discretion and award the maintenance from the date of service of summons.
– Orisa High Court In case Kalpana Das V. Saral Das Held that wife is entitled to get maintenance from the date when husband entered appearance.
And In case Arun Kumar Nayak V. Urmila Jena (2010) Held that dependants entitled to get maintenance from the date of application.
– Delhi High Court In case Lavlesh Shukla V. Rukmani (2019) Held that when wife is unemployed the maintenance shall be payable from the date of application.
• Judicial review (View of Supreme Court)
– In case Shail Kumari Devi And Ors. V. Krishnan Bhagwan Pathak (2008) Held that according to normal rule maintenance shall be payable from date of order but when it made payable from the date of application special order should be passed and there is no need to give reasons by court.
– In case Rajnesh V. Neha and Ors. Held that maintenance should be payable from the date of application.
The view of supreme court on the point was changed in various judgements from time to time.
• Conclusion : It can be concluded that as per judicial review Maintenance shall be payable from the date of application so that the dependant shall not suffer till the passing of order which may take years.The sole object should be ‘the timely justice and help’
Author : Bhawna, a student of BALLB (3rd year) at Punjabi University, Patiala
