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Parameswara Moothar Vs. Balameenakshi - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKerala High Court
Decided On
Case NumberCriminal Revn. Petn. No. 178 of 1968
Judge
Reported inAIR1969Ker108; 1969CriLJ484
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 488, 489 and 489(2)
AppellantParameswara Moothar
RespondentBalameenakshi
Appellant Advocate K. Chandrasekharan and; T. Chandrasekhara Menon, Advs.
Respondent Advocate T.L. Viswanatha Iyer and; E.R. Venkiteswaran, Advs.
DispositionRevision dismissed
Cases ReferredBasvarala Satteyya v. Malsoor.
Excerpt:
- .....code of criminal procedure is raised in this case. the question is whether an enhancement of the maintenance allowance can be made to take effect from the date of the application for enhancement instead of from the date of the order.2. mr. t. chandrasekhara menon, the counsel of the petitioner (the husband),invites my attention to the decision of the calcutta high court in j. h. amroon v. miss r. sasoon, air 1949 cal 584 by blank, j. that was a case where the maintenance allowance was raised from rs. 12/- to rs. 50/- per month; and blank, j., held that the enhancement could not be made retrospective from the date of the application, in other words, the enhancement could be only from the date of the order. an old decision in parvatham v. muthu pillai, 2 weir 650 was cited before blank,.....
Judgment:
ORDER

T.C. Raghavan, J.

1. A short question devoid of many precedents under Section 489 of the Code of Criminal Procedure is raised in this case. The question is whether an enhancement of the maintenance allowance can be made to take effect from the date of the application for enhancement instead of from the date of the order.

2. Mr. T. Chandrasekhara Menon, the Counsel of the petitioner (the husband),Invites my attention to the decision of the Calcutta High Court in J. H. Amroon v. Miss R. Sasoon, AIR 1949 Cal 584 by Blank, J. That was a case where the maintenance allowance was raised from Rs. 12/- to Rs. 50/- per month; and Blank, J., held that the enhancement could not be made retrospective from the date of the application, in other words, the enhancement could be only from the date of the order. An old decision in Parvatham v. Muthu Pillai, 2 Weir 650 was cited before Blank, J. That was a case where the maintenance allowance was reduced; and the learned Chief Justice held that since the allowance had already accrued at the original rate till the date of the order of enhancement, the same could not be reduced retrospectively. Another decision cited before Blank, J., was Hiralal Valavdas v. Bai Amba, AIR 1926 Bom 419. That was a Division Bench ruling dealing with enhanced maintenance allowance. Their Lordships of the Bombay High Court held that if under Section 488 the magistrate had power to make the allowance payable from the date of the application, he had the same power to award increased allowance also from the date of the application for enhancement. Yet another decision cited before Blank, J., was Mt. Lilawanti v. Madan Gopal, AIR 1935 Lah 24. In that case the maintenance allowance was reduced; and the Lahore High Court held that the reduction of the allowance retrospectively was improper. Blank, J., disagreed with all the three decisions and held that since no power was given to the magistrate under Section 489 to award maintenance from the date of the application as was the position under Section 488 of the Code, the increase of the allowance could not be retrospective.

3. In my opinion, Section 489 is only consequent on Section. 488. Therefore, even if elaborate provisions are not made under Section 489 on the same lines as under Section 488, it cannot be said that a Court acting under Section 489 has not all the powers it has under Section 488. The result is that if the magistrate has power under Section 488 to award maintenance from the date of the application, he must have the same power to award increased allowance also from the date of the application for enhancement. But, there is a distinction between an order reducing the maintenance allowance and an order increasing the allowance. In the case of an order of the former category, the principle enunciated by the two decisions already discussed (Parvatham's case and Mt. Lilawanti's case), that amounts already accrued cannot be retrospectively varied, has to be applied. In the other case of an enhancement of the allowance, there is no scope for the application ofthat principle; and the magistrate is free to enhance the allowance either from the date of the application for enhancement or from the date of the order.

4. Lastly, Mr. Chandrasekhara Menon draws my attention to a decision of our High Court by Govinda Menon, J., in Bhargavi Amma v. Kuttikrishnan, 1966 Ker LT 194 = (AIE 1967 Ker 54). In that case the learned Judge has followed the Calcutta decision of Blank, J. But, I find that that was a case of cancellation of the allowance under Section 489 (2) in consequence of the decision of a Civil Court. Before Govinda Menon, J., the decision of the Allahabad High Court in Brij Pal Singh v. Sukhbiri Devi, 1962 (1) Cri LJ 681 (All) was cited; but the learned Judge has disagreed with the view expressed therein. And Govinda Menon, J., has followed the decision of the Hyderabad High Court in Basvarala Satteyya v. Malsoor. AIR 1954 Hyd 53 laying down that 'the order of cancellation always operates prospectively and not retrospectively'. In my opinion, in a case falling under Sub-section (2) of Section 489, the cancellation order should take effect from the decision of the Civil Court and not from the date of the order or from the date of the application for cancellation. In the decision of the Hyderabad High Court, I do not find any discussion of the question; and the only observation that appears therein is the sentence extracted above, In principle, it is evident that the order should take effect from the date of the decree of the Civil Court; and I doubt the correctness of the decision of Govinda Menon, J., om this point. For myself, I am inclined to agree with the Allahabad view. However, since the case before me does not fall under Sub-section (2) of Section 489, I need not place the case before a Division Bench.

5. In the aforesaid view, I regret I cannot agree with the view of Blank, J.

6. The order of the lower Court is confirmed; and the revision petition is dismissed.


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