In a very simple, straightforward, suave and significant observation, the Kerala High Court has in an extremely laudable, landmark, latest and learned judgment titled Jumaila Beevi v. A Nissar in Mat. Appeal No.181 of 2013 & R.P (F.C) No.41 of 2019 and cited in 2022 LiveLaw (Ker) 411 that was pronounced as recently as on August 1, 2022 has ruled explicitly that an order of cancellation of maintenance under Section 127(2) of the Code of Criminal Procedure (CrPC) always operates prospectively and not retrospectively. A Division Bench comprising of Justice A Muhamed Mustaque and Justice Sophy Thomas added that such cancellation orders cannot date back to the date of application and will operate only from the date the maintenance was cancelled. Very rightly so!
At the outset, this concise, commendable, composed and creditworthy judgment authored by Justice Sophy Thomas for a Division Bench of Kerala High Court comprising of Justice A Muhamed Mustaque and himself sets the ball rolling by first and foremost putting forth in para 1 that, “The appellant/wife filed Mat. Appeal No.181 of 2013 against the dismissal of O.P No.944 of 2005 on the file of Family Court, Thiruvananthapuram, and she along with her three children filed R.P (F.C) No.41 of 2019, challenging the order in M.C No.248 of 2010 dated 10.05.2017. In both cases, the respondent is her husband.”
To put things in perspective, the Division Bench while briefly mentioning the facts necessary for the appeal then envisages in para 2 that, “Brief facts necessary for the appeal could be stated as follows:
The appellant and the respondent are husband and wife. Their marriage was solemnised on 11.03.1990 as per Muslim rites and custom. Three children were born in their lawful wedlock. At the time of marriage, the appellant was given 50 sovereigns of gold ornaments and 42 cents of land from her family, apart from a gold chain weighing 2 sovereigns and a gold ring weighing 1 sovereign given to the respondent/ husband. By selling away her 50 sovereigns of gold ornaments, the husband purchased plaint ‘A’ schedule property having 25 cents in his name though it was agreed to be purchased in her name. Only later she could realise that the document was registered in the name of the respondent. The respondent constructed a house in plaint ‘A’ schedule property expending his own money. But the movables in that house were gifted to the appellant from her family. The respondent ill-treated the appellant demanding more dowry. Her brothers purchased six cents of land in her name, but the respondent compelled her to sell away that property for constructing shop rooms in ‘A’ schedule property. She sold away that property for Rs. 2,40,000/- and that amount was utilised for constructing five shop rooms in ‘A’ schedule property. In April 2005, the appellant and her children were ousted from the house in the ‘A’ schedule property, and thereafter he contracted a second marriage. The appellant and her children were abandoned by the respondent and he failed even to pay their maintenance. So, she filed O.P No. 944 of 2005, for declaring her title over ‘A’ schedule property and to get back ‘B’ schedule movables kept in the house in ‘A’ schedule. She along with her three children filed M.C No. 185 of 2005 for maintenance from the respondent.”
As it turned out, the Division Bench then mentions in para 3 that, “The respondent/husband filed counter affidavit denying the claim of the appellant/wife. According to him, the appellant was leading a wayward life and she misused and misappropriated the amounts he had given to her, while he was working abroad. No property was purchased by selling away her gold ornaments, and no property was purchased in her name by her brothers. The house as well as the shop rooms in ‘A’ schedule were constructed by the respondent using his own hard earned money. Regarding her maintenance claim also, the respondent disowned his liability as he was even doubting the paternity of the children.”
As we see, the Division Bench then states in para 4 that, “After formulating necessary issues by the Family Court, the parties went on trial. Both the O.P and M.C were tried together. PW1 was examined and Exts.A1 to A15 were marked from the side of the appellant/wife, and RW1 was examined and Ext.B1 was marked from the side of the respondent/husband.”
Simply stated, the Division Bench then specifies in para 5 that, “On an anxious consideration of the rival contentions put forward from either side, the Family Court dismissed O.P No.944 of 2005 and allowed M.C No.185 of 2005, awarding monthly maintenance allowance @ Rs.2,000/-, Rs.1,850/-, Rs.2,150/- and Rs.1,600/- respectively to petitioners 1 to 4.”
It is then disclosed in para 6 that, “Against the order in M.C No.185 of 2005, the respondent/husband preferred R.P (F.C) No.257 of 2009 challenging the quantum of maintenance awarded, as he had lost his job and suffered a stroke as well. This Court, as per judgment dated 18.03.2010, revised and fixed the monthly maintenance allowance @ Rs.2,000/- to the wife and Rs.1,500/- each to the children from 29.10.2005, giving liberty to the parties to move for variance, when circumstances exist under Section 127 of Cr.P.C.”
Furthermore, the Division Bench then reveals in para 7 that, “Later, the respondent/husband filed C.M.P No.229 of 2010 under Section 127 of Cr.P.C to modify the maintenance order, as he had no assets or source of income, after his return from Gulf. That C.M.P was converted into M.C No.248 of 2010. PWs 1 to 3 were examined and Exts.A1 to A14 were marked from the side of the husband and CPWs 1 and 2 were examined and Exts.B1 to B6 were marked from the side of the wife.”
Of course, it is then aptly mentioned in para 8 that, “The learned Family Court Judge, on analysing the facts and evidence, found that the husband is suffering from renal problem and he needs kidney transplantation and moreover a portion of his body was paralysed as he had suffered a stroke. Finding that the husband had no means to pay the maintenance, the order passed in M.C No.185 of 2005 was altered and it was ordered that the wife and children were not entitled to recover maintenance from the respondent/husband from the date of petition. Challenging that order dated 10.05.2017, the wife and children preferred R.P (FC) No.41 of 2019.”
It deserves mentioning that the Division Bench then observes in para 12 that, “The appellant is admitting that, at the time of marriage and even thereafter, the respondent was employed in Gulf countries drawing monthly income of Rs. 1 lakh. The appellant had no job or income of her own. In the absence of evidence either to show that, the appellant was having 50 sovereigns of gold ornaments at the time of marriage, or to prove entrustment of that gold with the respondent or his sister, we could not presume that ‘A’ schedule property was purchased in the name of the respondent, by selling away the gold ornaments of the appellant.”
It is worth noting that the Division Bench then points out in para 18 that, “The Family Court found that the respondent was suffering from kidney problem and a portion of his body was paralysed due to stroke. He was found to be a man of no means, incapable of doing any job also. There was no contra evidence from the part of the wife to show that he was having any income or assets in his name. Further she had no case that, he was physically fit to do any job to earn income therefrom. So, the finding of the Family Court that the order passed in M.C No.185 of 2005 requires alteration, is well founded. But, in fact, the maintenance allowance prevailing then was the one modified and fixed by this Court in R.P (F.C) No.257 of 2009. Since the parties were given liberty by this Court to move for variance, the Family Court was empowered to alter or modify that order, on being satisfied that circumstances exist under Section 127 of Cr.P.C.”
Be it also noted, the Division Bench then notes in para 20 that, “In the case on hand, the Family Court cancelled the maintenance order from the date of application, which means the cancellation was ordered retrospectively.
Section 125(2) of Cr.P.C reads thus:
“Any such allowance for the maintenance or interim maintenance and expenses for 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”.
So, 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.”
Most significantly, what constitutes the cornerstone of this notable judgment is then laid bare in para 21 wherein it is held that, “Section 127(1) of Cr.P.C empowers the Magistrate to alter the monthly maintenance awarded under Section 125 Cr.P.C, on proof of a change in the circumstances and Section 127(2) Cr.P.C gives the power to the Magistrate to cancel or vary the order. The legislature under Section 125(2) Cr.P.C has given power to the Magistrate to date back the order to the date of application, but such a power is not there under Section 127(2) of Cr.P.C. So, the order of cancellation shall be effective only from the date of order, and it cannot date back to the date of application. 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.”
While citing the most relevant case law, the Division Bench then hastens to add in para 22 that, “In Balraj Singh vs. Balkar Singh (1983 (2) Crimes 506), the Punjab & Haryana High Court held that, Section 127(2) of the Code of Criminal Procedure enjoins that where after an order for maintenance passed in favour of the wife under Section 125(2) of the Code, the husband obtains a decree necessitating the cancellation of the order, the court shall cancel or vary the order. 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. This position was reiterated by the Rajasthan High Court in Harikishan vs. Smt. Shantidevi (1989 Crl.LJ 439) as well.”
Finally, the Division Bench then concludes by holding in para 23 that, “So, the impugned order altering/cancelling the maintenance order in M.C No.185 of 2005 from the date of the petition, is not valid or proper in the eye of law. The cancellation order will take effect only from the date of cancellation i.e. from 10.05.2017. The R.P (F.C) is allowed to that extent. In the result, Mat. Appeal is dismissed and R.P (F.C) is allowed in part, setting aside the order cancelling the maintenance awarded in M.C No.185 of 2005 from the date of petition. It is further clarified that, the revision petitioners are entitled to recover the arrears of maintenance as ordered in M.C No.185 of 2005 and as modified in R.P (FC) No.257 of 2009 till 10.05.2017, and the cancellation order will take effect only from the date of order i.e. 10.05.2017. No order as to costs.”
All told, we thus see that the Kerala High Court has very rightly maintained that order cancelling maintenance under Section 127 of CrPC cannot operate retrospectively. The Court also has made it absolutely clear that such cancellation order of maintenance always operates prospectively and not retrospectively. It merits no reiteration that all the lower courts must definitely pay heed to what the Kerala High Court has held so very elegantly, eloquently and effectively in this leading case. There can be certainly just no denying it!
Sanjeev Sirohi