# SHAil KUMARI DEVI & ANR v. KRISHAN

- **Citation:** [2008] 11 S.C.R. 386
- **Court:** Supreme Court of India
- **Decided:** 2008-07-28
- **Case number:** Civil Appeal No.4666 of 2008
- **Bench:** C.K. Thakker, D.K. Jain
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/shail-kumari-devi-anr-v-krishan-23588
- **Pages:** 28

## Headnote

)' ~
Code of Criminal Procedure, 1973 - s. 125:
Maintenance - Entitlement to - From date of applicac tion or from date of order- Held: Maintenance can be awarded
from the date of order, or, if so ordered, from the date of application for maintenance, as the case may be - For awarding
maintenance from date of application, express order is neeessary - No special reasons, however, are required to be reD corded by the Court - No such requirement can be read in
sub section (1) of s.125 in absence of express provision to
that effect.
Maintenance - Quantum of- Family Court granted mainE
tenance to wife as well as minor daughter at the rate of Rs. 20001
- and Rs. 10001- respectively from date of application i.e. July
21, 1997 - Challenge to - Held: Before amendment of 2001,
the ceiling was Rs. 5001- - Therefore, the Family Court could
not have granted maintenance exceeding Rs.5001- p.m eiF
ther to wife or minor daughter from 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 (amending
s. 125) came into force.
Interim maintenance - Grant of - Held: In absence of
G any express bar or prohibition, s. 125 can be interpreted as
conferring power by necessary implication to make interim
order of maintenance subject to final outcome in the application for maintenance - In the present case, Magistrate was
f
right and wholly justified in ordering interim maintenance -
H
286
SHAil KUMAR! DEVI & ANR. v. KRISHAN
387
BHAGWAN PATHAK@ KISHUN B. PATHAK
+-
Interim maintenance could have been granted by the MagisA
trate even before the amendment of s. 125 in 2001.
Appellant No.1 is the wife of Respondent. On July
21, 1997, a case for maintenance under s.125 CrPC was
filed whereunder Appellant No.1 claimed maintenance of B
Rs.500/- p.m. for herself and Rs.500/- p.m. for her minor
..
1
daughter, Appellant No.2. It was the case of Appellant No.1
that Respondent had neglected to maintain her as also
Appellant No.2. Subsequently, an application was filed by
Appellants requesting the Court to grant 'interim' maintenance during pendency of proceedings before the Court. c
The Trial Court allowed the said application and fixed interim maintenance at the rate of Rs.300/- p.m. for each of
the applicants. Later the case was transferred to the Family
Court, which finally disposed of the matter on November
29, 2006 by directing Respondent to pay maintenance of D
Rs.2,000/- p.m. to Appellant No.1 and Rs.1,000/- p.m. to
Appellant No.2 with effect from the date of application i.e.
July 21, 1997. Appellants filed Criminal Revision in High
Court, which reduced the amount of maintenance from
Rs.2,000/-to Rs.750/-for Appellant No.1 and from Rs.1,000/ E
- to Rs.750/- for Appellant No.2. The High Court also directed that the amount of maintenance would be payable
to the 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.
F
In appeal to this Court, the questions which arose
for consideration are: 1) Whether the Family Court erred
in granting maintenance to the Appellants from the date
of application made by them under s.125 CrPC and was
also wrong in allowing maintenance of more than Rs.500/ G
- either to Appellant No.1 or to Appellant No.2 before 2001
when the relevant provisions of law (s.125 CrPC as it then
-~
stood), allowed Rs.500/- p.m. as maximum amount of
maintenance; 2) Whether the High Court was justified in
H
388
SUPREME COURT REPORTS
[2008] 11 S.C.R.
A reducing the amount as also issuing direction to make
payment from the date of the order passed by the Family
Court; 3) Whether no 'interim' maintenance could have
been awarded before the amendment in CrPC in 2001 and
4) Whether even on merits, the Family Court was not jusB tified in ignoring the evidence on record and in granting
maintenance to Appellant No.1 by observing that she was
~
unable to maintain herself when the evidence clearly rer
vealed that some of

## Text

_Characters 0–39,785 of 55,007. This is a partial read: ask again with offset=39785 for what follows._

[2008] 11 S.C.R. 386
I
A
SHAil KUMARI DEVI & ANR.
~
\I.
KRISHAN BHAGWAN PATHAK @ KISHUN B. PATHAK
(Civil Appeal No.4666 of 2008)
B
JULY 28, 2008
[C.K. THAKKER AND D.K. JAIN, JJ.]
)' ~
Code of Criminal Procedure, 1973 - s. 125:
Maintenance - Entitlement to - From date of applicac tion or from date of order- Held: Maintenance can be awarded
from the date of order, or, if so ordered, from the date of application for maintenance, as the case may be - For awarding
maintenance from date of application, express order is neeessary - No special reasons, however, are required to be reD corded by the Court - No such requirement can be read in
sub section (1) of s.125 in absence of express provision to
that effect.
Maintenance - Quantum of- Family Court granted mainE
tenance to wife as well as minor daughter at the rate of Rs. 20001
- and Rs. 10001- respectively from date of application i.e. July
21, 1997 - Challenge to - Held: Before amendment of 2001,
the ceiling was Rs. 5001- - Therefore, the Family Court could
not have granted maintenance exceeding Rs.5001- p.m eiF
ther to wife or minor daughter from 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 (amending
s. 125) came into force.
Interim maintenance - Grant of - Held: In absence of
G any express bar or prohibition, s. 125 can be interpreted as
conferring power by necessary implication to make interim
order of maintenance subject to final outcome in the application for maintenance - In the present case, Magistrate was
f
right and wholly justified in ordering interim maintenance -
H
286
SHAil KUMAR! DEVI & ANR. v. KRISHAN
387
BHAGWAN PATHAK@ KISHUN B. PATHAK
+-
Interim maintenance could have been granted by the MagisA
trate even before the amendment of s. 125 in 2001.
Appellant No.1 is the wife of Respondent. On July
21, 1997, a case for maintenance under s.125 CrPC was
filed whereunder Appellant No.1 claimed maintenance of B
Rs.500/- p.m. for herself and Rs.500/- p.m. for her minor
..
1
daughter, Appellant No.2. It was the case of Appellant No.1
that Respondent had neglected to maintain her as also
Appellant No.2. Subsequently, an application was filed by
Appellants requesting the Court to grant 'interim' maintenance during pendency of proceedings before the Court. c
The Trial Court allowed the said application and fixed interim maintenance at the rate of Rs.300/- p.m. for each of
the applicants. Later the case was transferred to the Family
Court, which finally disposed of the matter on November
29, 2006 by directing Respondent to pay maintenance of D
Rs.2,000/- p.m. to Appellant No.1 and Rs.1,000/- p.m. to
Appellant No.2 with effect from the date of application i.e.
July 21, 1997. Appellants filed Criminal Revision in High
Court, which reduced the amount of maintenance from
Rs.2,000/-to Rs.750/-for Appellant No.1 and from Rs.1,000/ E
- to Rs.750/- for Appellant No.2. The High Court also directed that the amount of maintenance would be payable
to the 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.
F
In appeal to this Court, the questions which arose
for consideration are: 1) Whether the Family Court erred
in granting maintenance to the Appellants from the date
of application made by them under s.125 CrPC and was
also wrong in allowing maintenance of more than Rs.500/ G
- either to Appellant No.1 or to Appellant No.2 before 2001
when the relevant provisions of law (s.125 CrPC as it then
-~
stood), allowed Rs.500/- p.m. as maximum amount of
maintenance; 2) Whether the High Court was justified in
H
388
SUPREME COURT REPORTS
[2008] 11 S.C.R.
A reducing the amount as also issuing direction to make
payment from the date of the order passed by the Family
Court; 3) Whether no 'interim' maintenance could have
been awarded before the amendment in CrPC in 2001 and
4) Whether even on merits, the Family Court was not jusB tified in ignoring the evidence on record and in granting
maintenance to Appellant No.1 by observing that she was
~
unable to maintain herself when the evidence clearly rer
vealed that some of the properties of Respondent were
with Appellant No.1 and she also inherited land from her
c father.
Partly allowing the appeal, the Court
HELD: 1.1. The ceiling which was fixed under the
original enactment of 1973 (i.e. CrPC, 1973) of Rs.500/-
D 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'.
There is no substantial change so far as the date of pay-
~
ment is concerned. Under sub-section (2) as originally enacted, it was provided that such maintenance could be
E 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
F
be paid from that date, i.e. from the date of application.
[Paras 19, 20] [399-G, 400-A,B,C]
r1.2. The High Court, in the present case, was not right
in holding that as a normal rule, the Magistrate should grant
G 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. Duration of litigation is not within the
power or in the hands of the applicant and entitlement to
-r
H maintenance should not be left to the uncertain date of dis-
SHAil KUMAR! DEVI & ANR. v. KRISHAN
389
BHAGWAN PATHAK@KISHUN B. PATHAK
posal of the case. [Paras 44, 45] [410-G, 411-A,B]
1.3. 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
a legal duty cast upon the husband to maintain his wife.
Hence, whenever a wife does not stay with her husband 8
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 and if the reply is in the affirmative, she is
entitled to claim maintenance. It is, therefore, open to the C
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 CrPC in support of the
order passed by him. [Para 46] [411-C,D,E,F]
D
1.4. While deciding an application under Section 125
of CrPC, 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 E
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. No such requirement can be read in sub section (I) of Section 125 of the
F
Code in absence of express provision to that effect. [Para
47] [411-F,G, 412-A]
1.5. So far as 'interim' maintenance is concerned, it
is true that Section 125 of CrPC as it originally enacted G
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
H
390
SUPREME COURT REPORTS
[2008] 11 S.C,R.
A 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 scrapheap .of society so as to be tempted to commit crime or to
tempt others to commit crime in regard to them, the Mag8
istrate had 'implied power' to ma.ke such order. The jurisdiction of the Magistrate under Chapter IX (Order for Main-·
tenance 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
C 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. In absence of prohibiD tion 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,
E 2001 express provision has been made for the purpose.
The Magistrate in the present case was right and wholly
justified in ordering interim maintenance. There is no infirmity in that part of the order and interim maintenance
could have been granted by the Magistrate even before
F the amendment of s.125 in 2001. [Paras 21, 27, 45] (400C,D,E,F,G, 404-0,E, 411-8,C]
1.6. In the present case, the Family Court granted
maintenance to the appellants-wife as well as daughter-at the rate of Rs.2000/- and Rs. 1000/- respectively
G from the date of application i.e. July 21, 1997. Before the
amendment of 2001, the ceiling was Rs.500/-. 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
H most, such an order could have been made effective from
SHAil KU MARI DEVI & ANR. v. KRISHAN
391
..,..
BHAGWAN PATHAK@ KISHUN 8. PATHAK
the date the Amendment Act, 2001 came into force. To that A
extent, therefore, the order passed by the Family Court
was not in accordance with law. [Para 48] [412-B,C,D]
1.7. But even on merits, the Family Court was not
right in fixing the amount of maintenance. From the mate8
'
rial on record, it is clear that the appellant No.1-wife is re-
)j
siding in the house belonging to 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. It is true that Respondent could c
I
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. [Para 49] [412-D,E,F,G]
D
.....
1.8 In view of overall facts and circumstances, ends of
justice would be served if it is held that both the Appellants
are entitled to an amount of Rs.1000/- each per month as
maintenance. Appellants would be entitled to the said
E
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. [Para 50] [412-G, 413-A]
F
Savitri v. Govind Singh Rawat (1985) 4 SCC 337 - relied on.
K. Sivaram v. K. Mangalamba & Ors., 1990 CrLJ 1880
(AP) - approved.
Mohd. /naytullah Khan v. Sa/ma Bano, 1983 Jab LJ 55,
G
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
H
392
SUPREME COURT REPORTS
[2008) 11 S.C.R.
---f"
":-
A
(All), Nitha Ranjan Chakraborty v. Smt. Kalpana Chakraborty,
2002 CrLJ 4768 (Cal), Samaydin v. State of UP & Anr, 2001
CrLJ 2064 (All); Bijay Kapri v. Smt. Kanishta Devi & Anr,
(2000) 2 PLJR 241; Gnanaselvi & Ors. v. lllavarasan, (1999)
1 Crimes 22 (Mad); PN. Duda v. P Shiv Shankar, (1988) 3
B SCC 167 39; Amarjit Kaur v. Sartaz Zingh, 1996 CriLJ 4476
,,.
r
(P&H) and Krishna Jain v. Dharam Raj Jain, 1992 CriLJ 1028
(MP) - referred to.
Case Law Reference
c
(1985) 4 sec 337
relied on
Para 22·
1983 Jab LJ 55
referred to
Para 34
1987 CrLJ 1952 (MP)
referred to
Para 34
(1983) 1 Crimes 590 MP
referred to
Para 34
D
(1992) 1 WLC 305 (Raj)
referred tq
Para 34
>-
'1998 CrLJ 2704 (Raj)
referred to
Para 34
1998 CrLJ 280.3 (All)
referred to
Para 34
E
2002 CrLJ 4768 (Cal)
referred 'to
Para 34
2001 CrLJ 2064 (All}
referred to
Para 34
(2000) 2 PLJR 241
referred· to
Para 35
(1999) 1 Crimes 22 (Mad)
referred to
Para 38
F
}--
(1988) 3 sec 1 s1
referred to
Para.38
1996 CriLJ 4476 (P&H)
referred to
Para 39
1992 CriLJ 1028 (MP)
referred to
Para 40
G
1990 CrLJ 1880 (AP)
approved
Para 43
CJVILAPPELLATE JURISDICTION: Civil Appeal No. 4666
~,
of 2008 ·
From the final Judgment and Order dated 3.5.2007 of the
H
High Court of Judicature of Patna in C.R. No. 67 of 2007
SHAil KUMARI DEVI & ANR. v. KRISHAN
393
1"
BHAGWAN PATHAK @ KISHUN B. PATHAK [C.K. THAKKER, J.J
Abhinav Prakash and Kanhaiya Priyadarshi for the ApA
pellants.
Kumar Rajesh Singh and Niranjana Singh for the Respondent.
_.; ...
The Judgment of the Court was delivered by
B
1
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 ag- c
grieved 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,
D
'
~
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 beE
fore more than three decades. From the said wedlock, nine
children were born. Appellant No.2-KumartBabli is the youngest among all and she is the only child staying with her motherappellant No.1. At the time of filing of the application, she was
of twelve years.
F
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
G
Rs.500/- p.m. for appellant No.2. It was the case of the appel-
'i--
lant No.1 that her husband had neglected to maintain his wifeappellant 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 H
394
SUPREME COURT REPORTS
[2008] 11 S.C.R.
_...,..
A
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
.,..
B on September 3, 2001 and the case was adjourned for final
arguments. During the pendency of proceedings, however, Fam-
...
~
ily 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
c 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
D 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.
E
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
F
to pay arrears within three months of the order after deducting
the amount which had already been paid under the interim or-
>----
der passed by the Court earlier.
7. The appellant was dissatisfied with the order passed
G 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 modi-
~
fied the direction issued by the Family Court. The High Court
reduced the amount of maintenance from Rs.2,000/-to Rs.750/
H - to appellant No.1-wife and from Rs.1,000/- to Rs. 750/- to ap-
SHAil KUMARI DEVI & ANR. v. KRISHAN
395
BHAGWAN PATHAK@ KISHUN B. PATHAK [C.K. THAKKER, J.]
pellant No.2-daughter. The High Court also directed that the A
amount of maintenance would be payable to the applicantsappellants 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 adB
mission 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 C
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 D
"'""'
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 mainteE
nance 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
F
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 G
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
H
396
SUPREME COURT REPORTS
[2008] 11 S.C.R.
A
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
Courtwas not justified in ignoring the evidence on record and
in granting maintenance to wife observing that appellant No.1
8
was ·unable to maintain herself. The evidence clearly revealed,
s'ubmitted 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
C 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.
D
.
14. ,Three questions arise for our consideration; (i) whether
interi111 maintenance could be awarded in absence of specific
ancf express proyision jn the Code; (ii) whether the appli_cantyvife aod her daug,ht~r are entitled to maintenance from the date
of the order passed by the Family Court or from the date of
E 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
F
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) lf any person having sufficient means neglects
G ·
or refuses to maintainH
(a) . his wife, unable to maintain herself, or
(b)
his legitimate or illegitimate minor child, whether
married or not, unable to maintain itself. or
SHAil KUMARI DEVI & ANR. v. KRISHAN
397
~
BHAGWAN PATHAK @ KISHUN B. PATHAK [C.K. THAKKER, J.]
(c)
his legitimate or illegitimate child (not being a married
A
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 c
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
D
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, -
E
(a)
"minor" means a person who, under the provisions
of the Indian Majority Act, 1875( 9of1875) is deemed
not to have attained his majority;
(b)
"wife" includes a woman who has been divorced by,
F
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.
G
.......
(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 mainH
398
SUPREME COURT REPORTS
[2008] 11 S.C.R.
'""
--4_,.
A
tain 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 refusai, order such person to pay maintenance to his
wife or child(children) or parents, as the case may be. It is also
8
clear that maximum amount which could be ordered to be paid
y
"'"'
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
c 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
D sub-sections now read thus:
'12'5. Order for maintenance of wives, c17ildren and
~-
parents.- (1) If any person having sufficient means neglects
or refuses to maintainE
(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
F
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,
G
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
H
Magistrate may from time to time direct:
SHAil KUMARI DEVI & ANR. v. KRISHAN
399
BHAGWAN PATHAK@ KISHUN 8. PATHAK [C.K. THAKKER, J.]
+
Provided that the Magistrate may order the father of a 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
8
~ -..
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 c
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 D
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
E
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.
F
(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 G
may be.
(emphasis supplied)
i
--.,.
19. It is apparent that the ceiling which was fixed under the

original enactment of 1973 of Rs.500/- p.m. has been removed H
400
SUPREME COURT REPORTS
[2008] 11 S.C.R.
A
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 origiB
nally 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
r ~
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
c 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 bf the Code as it originally enacted did not
D 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
E
neglecte~ 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
F
(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
G 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.
-r
22. A direct question came up for consideration _before
!
H
SHAil KUMAR! DEVI & ANR. v. KRISHAN
401
BHAGWAN PATHAK@ KISHUN B. PATHAK [C.K. THAKKER, J.]
tthis Court in Savitri v. Govind Singh Rawat, (1985) 4 SCC 337 A
: 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.
8
...
""
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 c
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
D
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
E
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
F
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 G
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, putH
402
SUPREME COURT REPORTS
[2008] 11 S.C.R.
A
ting emphasis on the duty of a person liable to pay maintenance
+
I
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
B
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
r ~
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
c
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
D
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
E
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
F
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
G
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,
H
who may have no means to subsist until the final order is
SHAil KUMARI DEVI & ANR. v. KRISHAN
403
BHAGWAN PATHAK@ KISHUN B. PATHAK [C.K. THAKKER, J.]
passed. There is no room for the apprehension that the
A
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
B
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 c
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
0
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,
E
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
F
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".
G
(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
H
404
SUPREME COURT REPORTS
[2008] 11 S.C.R.
A
maintain herself may have to wait for 'several years' for getting
_..,.
8
c
D
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
E 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
F
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.
G
H
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)
SHAil KU MARI DEVI & ANR v. KRISHAN
405
BHAGWAN PATHAK@ KISHUN B. PATHAK [C.K. THAKKER, J.j
30. The Family Court thus exercised the power under subA
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.
B
31. The High Court, however, set aside that part of the
order of the Family Court. It, inter a/ia, observed;
"On a consideration of the aforesaid arguments of the
parties, this Court finds that the court below has not c
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 0
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
E
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
F
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
G
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
H
406
SUPREME COURT REPORTS
[2008] 11 S.C.R.
r
A
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
B
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
r
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
c
to raise debts, during the period when the application
had been pending.