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Report No. 132

3.4. Ceiling.-

The Commission has examined, in the first instance, the problem arising in the context of the ceiling engrafted in the provision which disables a magistrate from awarding an allowance for maintenance at a rate exceeding Rs. 500 per month. It appears to the Commission that the fixation of the ceiling at the figure of Rs. 500 made in 1955, which had been retained in 1973, could hardly be said to be relevant any more after a passage of more than 30 years. The consumer price index in 1955 was 1051. The consumer price index in 1988 was 972.2 Thus, the cost of living index has risen nine times since the ceiling of Rs. 500 was devised. Taking into account this factor, the ceiling would have to be raised from Rs. 500 to Rs. 4,500.

This aspect has, therefore, been closely examined by the Commission. In the first place, should there be ceiling when the law does not provide for a floor. It would appear to be somewhat unreasonable to do so. It has not been possible to ascertain what weighed with the Legislature in engrafting a ceiling in the provision. A research made in the context of the Objects and Reasons of the Bill introduced in Parliament and in the parliamentary debates does not reveal the rationale of this provision. It would, however, appear that possibly the Legislature was desirous of engrafting a ceiling in view of the fact that what was being provided was a summary remedy by recourse to a court constituted under the Code of Criminal Procedure.

The recourse to civil court for claiming maintenance in a regular civil proceeding being available to a litigant, possibly it was considered expedient to engraft a ceiling. With the passage of time and change in the circumstances, the situation has undergone a sea change. Recourse to a civil court has become virtually out of reach of a wife, child or parent seeking maintenance. Because, the workload in the civil courts has increased to such a great extent that a claim for maintenance would remain unresolved for years in the trial court itself. It would take more than a decade to get the matter finally resolved through the hierarchy of the appellate courts in view of the position of arrears in the civil courts.

Under the circumstances, now a person claiming maintenance under section 125, Cr. P.C. scarcely approaches the civil court in order to establish such right in that forum. Besides, the litigation in the civil courts has become so costly that a person in need of maintenance can scarcely afford it. The court fees, the advocate's fees, the incidental expenses and the expenses required to be incurred in connection with appeals make it economically impermissible to approach the civil court. Most of the claimants for maintenance rest content with the order of the criminal court exercising jurisdiction under section 125, Cr. P.C. and do not make recourse to civil proceedings. Under the circumstances, the demand of the times and the demand of the situation is that the remedy under section 125, Cr. P.C. should be made as comprehensive as possible.

Thus, the conceivable rationale for incorporating a ceiling has disappeared. Secondly, the very fact that there is a ceiling operates on the mind of the magistrate in determining the quantum of monthly allowance required to be awarded for maintenance. It is a psychological deterrent. Since the maximum is Rs. 500, the magistrate tends to determine the maintenance allowance at 50% to 75% of the maximum even if there is justification for awarding a larger sum in order to enable the claimant to meet the economic needs. And, finally, having regard to the rise in the cost of living index, the ceiling has become altogether irrelevant with a 900% rise in the index in the interregnum.

The need of the claimant cannot even be satisfied in a small measure by an award of even the maximum sum of Rs. 500 today. The cost of housing accommodation has made it impossible to get accommodation without being required to pay exorbitant rent. And with the cost of articles of food and clothing having risen so much that the claimant cannot satisfy even the basic needs without having to spend a much larger amount for bare existence. It has also to be recognised that the incomes of the workers and the salaried classes as also of the other sections of the society have gone up on account of inflation and rise in cost of living. The resources of the persons liable to pay have been augmented and their economic condition has vastly improved.

This factor has also to be taken into account in considering the desirability or otherwise of retaining the provision as to ceiling. It cannot be overlooked that if a ceiling is retained, it would require to be revised from time to time taking into account the inflation and rise in cost of living. It would be extremely difficult to amend the prevision periodically, time and again, for it would result in investment of legislative time unnecessarily. The present experience reinforces this apprehension in as much as the ceiling of Rs. 500 has remained unrevised for 30 years without anyone (including women's activist groups) even becoming aware of the resultant anomaly and injustice.

When the Commission embarked on the examination of the issue, two options presented themselves before the Commission, namely, (1) to raise the ceiling taking into account the inflation and the rise in cost of living, and (2) to do away with the ceiling altogether, leaving it to the court to determine the quantum of monthly allowance required to be awarded from case to case depending upon the facts and circumstances of each case. Having accorded anxious consideration to the relevant factors, the Commission is firmly of the opinion that the appropriate course would be to do away with the ceiling altogether by eliminating the reference to the ceiling (as at present of Rs. 500) engrafted in the said provision. Consequently, the reference to the ceiling of Rs. 500 made in the first proviso to sub-section (1) of section 127 will also have to be deleted.

1. Indian Labour Statistics, 236 (1969)

2. 229 Indian Labour journal, 1771 (1988)

Need for Amendment of the Provisions of Chapter IX of the Code of Criminal Procedure, 1973 in order to Ameliorate the hardship and mitigate the distress of Neglected Women, Children and Parents Back

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