Report No. 132

3.5. The date from which the order for payment of monthly allowance by way of maintenance should be made effective.-

Sub-section (2) of section 125, as at present fashioned, provides that the monthly allowance shall be payable from the date of the order, or from the date of the application for maintenance, if so ordered, by the magistrate. The provision is capable of being construed as implying that ordinarily the maintenance amount is payable from the date of the passing of the order disposing of the proceeding by the magistrate unless the magistrate incorporates an express ,direction to the contrary and provides for payment of monthly allowance from the date of the institution of the petition for maintenance.

In case the order is silent as to the date from which the order for maintenance is to become effective, the order would become operative only from the date of the final order disposing of the proceeding. There is no conceivable principle in denying the allowance for maintenance for the interregnum during which the proceeding remained pending in the court if the right to claim maintenance is ultimately upheld at the conclusion of the proceedings. The provision appears to be unwittingly loaded against the claimant for monthly allowance for, the claimant being interested in an expeditious disposal of the matter, the delay in disposal of the proceeding can scarcely be laid at the door of the claimant.

In fact, indirectly it encourages the person liable to pay the allowance to prolong the litigation and thereby compound the injustice resulting to the claimant. The person liable to pay the maintenance allowance would have a vested interest in the prolongation of the proceeding. For, the longer the delay, the longer he can retain the amount with himself and keep the wife or the claimant away from his or her claim. Such a person would also have the sadistic satisfaction of causing harassment to the claimant with impunity. Besides, once a claimant has established that the person liable to pay maintenance allowance has refused or neglected to discharge his obligation, it would be adding insult to injury to deprive the claimant of the rightful claim by denying maintenance with effect from the date of instituting the petition.

The right to claim maintenance existed on the date on which the petition was instituted. It did not come into existence years later, on the date on which the magistrate could dispose of the proceeding. It is a matter of common knowledge that the workload in courts has increased tremendously. The courts are not able to dispose of even vital, urgent and sensitive matters within a reasonable time. This reality has to be faced. It often takes 3 to 4 years to dispose of a proceeding in the court of the first instance.1 The claimant is in no way responsible for the delay in the disposal of the matter. It is not the fault of the claimant that the courts are overworked and their dockets are overcrowded. If at all, possibly it is the fault of the system.

There is no reason why a wife, a child or a parent who is in need of maintenance and is held to be entitled to claim maintenance under the law should be denied such a right for the interregnum during which the application remained pending in the court of the magistrate. There is, therefore, no escape from the conclusion that sub-section (2) of section 125 requires to be amended so as to provide that the amount of maintenance shall be payable from the date of the making of the application by the claimant.

1. B. Das Effect of Interim Maintenance Order passed under section 125 of the Code of Criminal Procedure, 93 Cr LJ (1987).