T.P. Naik, J.
1. The petitioner is the married wife of the non-applicant. On 3-2-1964, she obtained an order of maintenance in her favour from the Magistrate, First Class, Jabalpur, under Section 488 of the Code of Criminal Procedure at the rate of Rs. 100.00 per month.
2. On or about 9-1-1964, the non-applicant husband filed a petition for judicial separation against his wife, the petitioner, under Section 10 of the Hindu Marriage Act on the allegeation that she had deserted him without sufficient cause. The petition was dismissed by the trial Court; but, on appeal, First Appeal No. 48 of 1965, the High Court on 8-9-1969 allowed the petition and granted to the non-applicant husband a decree for judicial separation holding that the petitioner wife had deserted her husband without reasonable cause.
3. The non-applicant husband, therefore, on or about 16-2-1970, applied in the Court of the Magistrate under Section 489 (2) of the Code of Criminal Procedure for cancellation of the order of maintenance dated 3-2-1964. The learned Magistrate by his order dated 25-2-1971 cancelled the order of maintenance with retrospective effect holding, inter alia, that the finding of the High Court in First Appeal No. 48 of 1965 implied that the petitioner wife had 'no reasonable ground for not living with the husband', which attracted the provisions of Sub-section (4) of Section 488 of the Code of Criminal Procedure. On revision, the aforesaid order has been affirmed by the Fourth Additional Sessions Judge, Jabalpur. The Petitioner wife has, therefore, come up in second revision.
4. The revision has been admitted on the question: whether the cancellation of an order of maintenance under Section 489 (2) of the Code of Criminal Procedure can be made to operate retrospectively as ordered by the Courts below, or should it operate prospectively from the date of its cancellation?
5. Sub-section (2) of Section 489 of the Code says-
Where it appears to the Magistrate that, in consequence of any decision of a competent Civil Court, any order made under Section 488 should be cancelled or varied, he shall cancel the order or, as the case may be, vary the same accordingly.' The word 'cancel', according to 'The Concise Oxford Dictionary', means: 'obliterate, cross out, annul, make void, abolish, countermand, neutralize, balance, make up for.
6. On a plain reading oi we Sub-section, therefore, it appears that it contemplates and permits prospective cancellation. It is settled law that where the statute would prejudicially affect vested rights or the legal character of past transactions, it has to be construed prospectively and not retrospectively. In the instant case, the provision does not in terms say that the cancellation may be with retrospective effect. It does not even say that the cancellation may be from the date of the application for cancellation. This is significant because Sub-section (2) of Section 488 of the Code, says: 'Such allowance shall be payable from the date of the order, or if so ordered from the date of the application for maintenance'.
It is also to be noted that in the Code of 1898, there was a change in the wording of the Sub-section because whereas in the earlier Code, maintenance allowance was payable from the date of the order, the Legislature when it intended that, in suitable cases, the payment may be made from the date of the application for maintenance, it expressly said so in the present Code. It has, therefore, been held that no payment of maintenance can be granted to a child from the date of its birth, i. e., for the period from date of its birth to the date of the application : See Janamma v. Kuttappa Panicker, ILR 1959 Kerala 157 : (1959 Cri LJ 1328).
Any application of the provision retrospectively would entail the refund of the maintenance allowance already earned and spent by the petitioner wife on her maintenance which would not only work oppressively on her but would also entail the taking away of her rights of property in the maintenance allowance already accrued due and eithef paid to and received by her or is recoverable by her as of right in terms of a legal order which was operative in her favour till the date of its cancellation. It would also mean that a maintenance-holder would be in a precarious position because she would always be wondering whether a retrospective order may any day not only deprive her of her maintenance allowance but may even order her to disgorge what was given to her and meant for her maintenance.
7. In Parvatham v. Mutha Pillai, (1885) 2 Weir 650 where the prayer was to reduce the rate of maintenance allowance under Section 489 (2) of the Code, Turner, C. J. said:
The Magistrate had no power to reduce the rate of maintenance which had accrued due. He should have enforced payment of the arrears at the rate originally awarded, and the reduction should have been limited to payments accruing due after the date of the order.
8. In Hiralal v. Bai Amba AIR 1926 Bom 419 : (27 Cri LJ 940), a case in which only the applicant was represented, the question was whether an increase in the maintenance allowance under Sub-section (2) of Section 489 of the Code could be granted from the date of the application for its increase or from the date of the order of the Court; and a Division Bench of the Bombay High Court said:
It has been argued that the Magistrate had no jurisdiction to make the order. Under Section 488, the Magistrate has power to make the maintenance payable from the date of the application. We cannot see why he should not have the same power to direct, if he thinks fit, when an application is made to vary the order as regards the maintenance payable, that maintenance at the increased rate should be paid from the date of the application.
On the other hand, in J. H. Amroon v. R. Sassoon AIR 1949 Cal 584 : (50 Cri LJ 1006) a contrary view was held, Blank, J. saying-
The Bombay decision is based on a consideration of Sections 488 and 489 as they now stand but this decision is not binding on me and with all respect to the learned Judges I am not prepared to adopt it for the short reason that the Legislature had thought fit to amend Section 488 (2) as it now stands with the result that the Magistrate has the power to make the allowance payable either from the date of the order or from the date of the application for maintenance. Section 489 contains no such power. The powers of the learned Magistrate are to be sought within the four corners of the Code. The Legislature has given the Magistrate a power to date back the order for maintenance in the first instance to the date of the application. It has not given the Magistrate the corresponding power on the alteration in the allowance. It is not for the Court, in my opinion, to read a power into Code which is not there.
Both the aforesaid cases were considered by the Mysore High Court in T. K. Thayuma-nuvar v. Asanambal, (AIR 1958 Mys 190) : (1958 Cri LJ 1522) and the learned Judge sought to reconcile the two sections, Sections 488 and 489 of the Code. He said:
Coming to the question as to whether the order can be made effective from the date of the petition, it is urged on behalf of the petitioner that whereas under Section 488 (2), Criminal P. C. maintenance could be made payable if so ordered by the Court from the date of the application for maintenance, there is no such provision in Section 489, Criminal P. C. Consequently it is urged that the Magistrate has no jurisdiction to give retrospective effect to his order.
In this connection, reliance is also placed on the decision in AIR 1949 Cal 584 : (50 Cri LJ 1006). In the said case Blank, J. held that the Magistrate had no power to order the increased allowance to be paid with effect from the date of the application but only from the date of the order increasing the allowance. But it is urged on behalf of the respondent that Section 489, Criminal P. C. should be read with Section 488, Criminal P. C.
Section 489, Criminal P. C. by itself has no independent existence. The procedure to be followed and effect of the order passed are all provided in Section 488, Criminal P. C. In other words, it is contended that Section 489, Criminal P. C. is merely a proviso to Section 488 (1). There is force in this contention. It will be seen that Section 488 (3) provides for the mode in which the order is to be enforced. Similarly under Section 488 (4) the wife will become disentitled to maintenance under certain circumstances.
Section 488 (6) provides for the mode in which the evidence has to be taken. Section 488 (8) specifies the place where the proceedings should be taken. There are no corresponding provisions in Section 489, Criminal P. C. Unless Section 489 is read with Section 488, Criminal P. C. and is considered as a part of the same, it is difficult to visualise how the same can be worked out or enforced. In my judgment the appropriate way to consider Section 489, Criminal P. C. is to read the same as a proviso to Section 488 (1), Criminal P. C.
So read the other parts of Section 488 will become applicable to the proceeding under Section 489, Criminal P. C. In the case reported in Hiralal Valavdas v. Bai Amba AIR 1926 Bom 419 : (27 Cri LJ 940) their Lordships Macleod, C. J. and Shah, J. held that a Magistrate has power to increase the rate of maintenance once awarded, and to direct that the increased rate of maintenance be paid from the date of the application asking for the increase. It is true that no reasons were given in support of that judgment.
Their Lordships merely remarked that under Section 488, Criminal P. C. a Magistrate has power to make the payment payable from the date of the application, and they do not see why he should not have the same power under Section 489, Criminal P. C. Though the reasons given may be open to challenge, I am in agreement with their conclusion for the reason mentioned by me earlier. But ordinarily an order of this type should be effective only from the date of the order. In order to give retrospective effect to it, there must be special circumstances.
No such circumstances have been brought to my notice in this case. The mere fact that there was some delay in the enquiry of this case is not a sufficient ground to direct the petitioner to pay maintenance at the increased rate from the date of the application. Hence that part of the order of the learned Magistrate is unsustainable and the same is set aside.
9. I need not enter into this controversy in this case because even if the two sections are read together, there must be special circumstances to warrant the order of cancellation being made effective from the date of the application and the fact that the High Court in proceedings under Section 10 of the Hindu Marriage Act has taken a different view on the question of desertion on the evidence before it is not such a circumstance.
10. It is, however, to be noted that no Court has so far gone to the extent of saying that the order of cancellation can be made effective from the date of its inception.
11. Reliance is, however, placed by the learned Counsel for the non-applicant husband on a decision of Krishnan, J. in Sadashiv v. Parubai : AIR1967MP85 wherein on the question whether the cancellation by the Magistrate under Section 488 (4) and (5) of the Code of Criminal Procedure of an order granting maintenance under Section 488 of the Code operates ipso facto from the date of the original order itself and thereby disentitles the maintenance-holder to getting anything by way of arrears during the period between the original making -of the order and the date of its cancellation, the learned Judge preferred what he calls 'Lahore-Hyderabad view' contained in Mst. Bhag Sultan v. Muhammad Akbar Khan AIR 1930 Lah 99 (1) : (30 Cri LJ 719) and Basvarala Satteyya v. Malsoor AIR 1954 Hyd 53 - (1954 Cri LJ 444) in preference to the Bombay, Madhya Bharat and Calcutta view contained in Sangawa Gulappa v. Gulappa Kariyeppa AIR 1942 Bom 258 : (43 Cri LJ 826); Hari Narain v. Mt. Rani Devi AIR 1952 Madh Bha 53 : (1952 Cri LJ 574) and Sm. Kalyani Debi v. Nirmal Kumar : AIR1957Cal115 , the Lahore Hyderabad view being:-
The order of cancellation by the Magistrate could not be given a retrospective effect. The wife is entitled to the allowance that was due to her before the order under Sub-section (4) of Section 488, Criminal P. C. had been made against her.' (Lahore)
Order of cancellation of maintenance order always operates prospectively and not retrospectively. (Hyderabad)
Giving his reasons the learned Judge said:
It would be remembered that the basic purpose of Section 488 is to see that a woman living separately from the husband is not tempted on account of poverty into ways of crime. On that view a maintenance due under a valid order has to be paid till it is cancelled. To hold that a cancellation under Sub-section (5) would ipso facto nullify the order from the very date on which it is made would be to frustrate that purpose and make it penal. Certainly, when there is a disentitle-ment incurred under Sub-section (4) even during the period before the cancellation the woman, may not get the allowance. But that would be not because of the cancellation under the later Sub-section but on the dis-entitlement itself which would have to be proved with reference to the earlier period like any other fact. It may even be that the disentitlement is mentioned in the cancellation order; but that by itself cannot operate retrospectively.
I do not see how the aforesaid decision, which is under Sub-sections (4) and (5) of Section 488 of the Code of Criminal Procedure helps the non-applicant husband in his contention that under Sub-section (2) of Section 489 of the Code an order of cancellation can be passed retrospectively to operate from the date of the original order.
12. In my opinion, neither on principle nor on authority can the view taken by the courts below be supported. Their orders are, therefore, hereby set aside in so far as they said that the cancellation of the order granting maintenance shall be operative as from 3-2-1964, the date of the original order. The result would be that the order of cancellation of the original order granting main=tenance shall be operative only from the date of the order of cancellation, i. e., from 25-2-1971