In, Jumaila Beevi vs A. Nissar, the Division Bench of Kerala HC has held that maintenance allowance ordered under Section 125 Cr.P.c shall be payable either from the date of order, or if so ordered it can be from the date of application. Bench further held that, Till the order is altered, modified or cancelled, the earlier orders will remain effective. So the order of cancellation of maintenance always operates prospectively and not retrospectively.
Facts
The respondent-husband and the appellant-wife were married in 1990, and they were the parents of three children. The lady claimed that her husband often mistreated her during their marriage in exchange for more payment. She and her children were thrown out of the marital home in 2005 as the husband entered into a second marriage. The wife brought a plea before the Family Court under Section 125 Cr.P.c, alleging that her husband abandoned her and their children without even paying maintenance. The Family Court granted monthly allowances to the wife and the three kids separately after determining that the respondent, despite having considerable resources, was not purposefully supporting them. After the husband claimed that he had had a stroke and was unable to support them, the amount was reduced. A few years later, the respondent filed a new petition under Section 127 of the Cr.P.c asking for the maintenance order to be modified on the grounds that he lacked any assets or income. At this point, the Family Court determined that the husband was a man of no means and was unable to hold down any employment. It was decreed that starting on the date of the petition, the wife and kids had no right to maintenance payments from the husband.
Aggrieved by the cancellation order of maintenance, the appellant filed the current matrimonial appeal with the Kerala High Court, challenging the Family Court's findings that she and her spouse were not entitled to maintenance there.
Contention Made
Appellant: she was compelled to bring more dowries from her house based on factual circumstances. Latter, This Contention of the Appellant was dismissed by the Division Bench of Kerala HC.
Respondent; The respondent disowned his liability as he even doubted the paternity of the children and he lacked any assets or income to Continue Maintenances.
Court Observation
The Division Bench of Kerala HC, while deciding the question, whether the order of cancellation of maintenance operates prospectively or retrospectively?
The Hon’ble Bench Observed that; the Family Court had cancelled the maintenance order from the date of application, which means the cancellation, was ordered retrospectively. The Court Further observed the decision of Apex Court in Balraj Singh vs Balkar Singh (1983 (2) Crimes 506), the Punjab & Haryana High Court held that, The legislature under Section 125(2) Cr.P.c has given power to the Magistrate to date back the order of the application, but does not give any such power under Section 127(2) of the Code. We cannot read a power into the Code which is not there. The order of cancellation of maintenance always operates prospectively and not retrospectively.
Court Judgment
The Kerala HC while setting aside the order cancelling the maintenance awarded has held that, the cancellation order was only effective as of the order date; it could not go back to the application date. It was also explained that the wife and children have the right to receive the arrears of maintenance payments.
Case: Jumaila Beevi vs A. Nissar
Citation: Mat. Appeal No. 181 of 2013.
Bench: Hon’ble Mr. Justice A. Muhamed Mustaque & Hon’ble Mrs. Justice Sophy Thomas Monday.
Decided on: 1st August, 2022.
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