1. This Revision arises from an order of the learned Chief Presidency Magistrate of Calcutta raising maintenance from Bs. Vi to Es. 60 per month with effect from the month of September 1948, the application for alteration of the allowance having been made on 31et August 1948. It appears that the petitioner had an illegitimate child and that in the proceedings in the Presidency Magistrate's Court in 1935 he was ordered to pay Rs. 10 per month for the ncaintenance of the child as from the date of fling of that case. The allowance was afterwards raised to Bs. 12 per month, it is said, by the petitioner as an act of grace. The opposite prirty, the mother of the child, applied for increase of the amount of maintenance to Bs. 60 per month on the ground that she was not in a position to maintain the child with the amount grarted, The child is said to be a be y now at school.
2. The learned Chief Presidency Magistrate went into the allegations of the parties as to the circumstances of the petitioner and held that considering that the be y was being educated, the school fees amounting to Rs. 18-8 per month, and considering the rise in the cost of living daring the last few years, Rs. GO 'is just sufficient for the bare needs of the bay.' He also considered the evidence as to the properties belonging to the petitioner and found that the petitioner's wife and the children by his wife were not dependant on the petitioner and have not been for the last 3 or 4 years. He also held that there had been a change in the circumstances be to from the point of view of the child's requirements and the capacity to pay of the opposite-party and fixed the amount of maintenance at Bs. 60 per month with effect from the month of September 1948 as already stated. The date of the order IS 8th November 1948.
3. In argument here Mr. S, C. Talukdar for the petitioner raised the question of the means of the petitioner but did not pursue it at all strenuously. On the findings o Mae learned Chief Presidency Magistrate it is clear that the amount of maintenance at us. so per month should not be interfered with by this Court.
4. Mr. Talukdar however raised the point that the order of 'retrospective payment at the fixed rate' is illegal. By 'retrospective' is meant an order taking effect from a date prior to the order of the learned Chief Presidency Magistrate. He states that there is no decision on the point in this Court and neither am I aware of any. The authorities elsewhere are scanty. The annotated edition of Criminal P. C, quotes the case of Parvatham v. Mutha, a weir 650 as an authority for the proposition that
an order of alteration of allowance under this section cannot take effect retrospectively. The Magistrate has no power to reduce the rate of maintenance which has already accrued due; his order will take effeot In respect of the allowance that will fall due after the date of the order. The arrears which have (alien due will be enforced at the rate originally fixed.
On referring to the original volume it appears that the decision was that of the then Chief Justice sitting singly, the complainant was Parvatham and the defendant Mutha Pillai, apparently wife and husband respectively. The order is quoted as it stands:
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. But as no application has been made by the wife for the amendment of the order, the Court considers it inexpedient to interfere.
5. The only other authorities traceable are the case of Hiralal Valavdas v. Bai Amba : AIR1926Bom419 and the ease of Mt. Lilawanti v. Madan Gopal A.I.R. (13) 1935 Lah. 24 : 37 Cr. L. J. 68), In the former case a Division Bench of the be mbay High Court 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 foe the inorease. The report shows that only the applicant was represented. The reasons given by the Bench are as follows:
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 Bee why he should not have the same power to direct, if be 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.
6. The application appear from the report to have been an application in revision against the order of a Magistrate increasing a maintenance allowanoe under Section 488, Criminal P. 0., the order to take effeot retrospectively from the date of the application. The basis of the decision appears to be that as Section 488, giving the power to award maintenance, contained provision enabling the Magistrate to make the maintenance payable from the date of the application, the learned Judges could not see any objection, in principle, to the learned Magistrate having the corresponding power under Section 489 of the Code, the auction dealing with alteration in allowances.
7. The Lahore decision is a decision of a single Judge. In that case the petitioner was granted a monthly allowance for the maintenance of herself and her children. The petitioner applied for executing the order of maintenance and collecting the arrears. Her husband represented that the amount fixed was too heavy for his reduced income. The learned Magistrate reduced the allowance from Bs. 25 to Rs. 20 per month on the ground that although the husband's income had undergone no change the wife had obtained an employment at a rate of us. 6 per month. The order of the Court was as follows:
The order reduoing the rate for the months of December to March retrospectively appears to me to be clearly Improper. There had been no application by the husband under Section 489 for the reduction of the maintenance.
The petitioner had two children when the maintenanoe order was passed in April 1932, one child was nine and the other was only a few months old. Their expenses have presumably increased. The income of the respondent is what it was. In the oirounistanoeB the Magistrate had no justification for reducing the rate of maintenance. I...sot aside the order of the Magistrate that payment is to be made...at the rate of Rs. 20 per mensem and 1 make the warrant of attachment issued by him one for Bs. 100 instead of Rs. 80.
8. It will be seen that the main question before the learned Judge was the question of reduction of the maintenance and the reasons given by him in the order refer to this question. Nothing in the order deals with the matter of retrospective effect as a substantive issue. The result of the authorities is not therefore con-elusive. The cage reported in P'arvatham v. Mutha, S weir 650, gives the decision but no reasons, and that on the Code of Criminal Procedure as it stood in 1883, The be mbay 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.
9. It is not for the Court, in my opinion, to read a power into the Code which is not there. Apart from the technical aspect of construction, of the statute, it seems to me reasonable that where an applicant for maintenance is getting nothing the Court should, if in its judicial discretion it thinks fit, be able to order maintenance from the date of the application but that the position is different with regard to an application for alteration in an allowance, viz., that at any rate, the applioant for alteration is getting something and there is no pressing necessity for the altered amount-which may incidentally be either an increase or a reduction-to take effeofc from any date other than the date on which the order of alteration is made. The Lahore case does not seem to carry the matter very muoh further. It is clear that it holds that the reduction Should be limited to payments accruing due after the date of the order. No reasons are given but it is relevant to note that in the year 1888 B. 488, Criminal P. C. oontained the provision 'such allowance shall be payable from the date of the order' while the present Sub-section (a) gives a Magistrate a discretion to make the allowance payable from the date of the application for maintenance if he thinks fit.
10. On the foregoing considerations I hold that the learned Magistrate had no jurisdiction to order the increased allowance to be paid with effect from the month of September 1948. I have already held that there is no reason to interfere with his order increasing the allowance to Ea. 60 per month and the result is that his order will stand subject to the modification that the increased allowance will be payable with effect from the date of the order of the learned Chief Presidency Magistrate, viz., 8th November 1948. Save for this modification the rule is made absolute.