PARAMESWARA MOOTHAR Vs. BALAMEENAKSHI
HIGH COURT OF KERALA
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(1.) A short question devoid of many precedents under S.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 K. Sassoan ( AIR 1949 Cal. 581 ) 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, id other words, the enhancement could be only from the date of the order. An old decision in Parvatham v. Mutha (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 S.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 S.489 to award maintenance from the date of the application as was the position under S.488 of the Code, the increase of the allowance could not be retrospective.
(3.) In my opinion, S.489 is only consequent on S.488. Therefore, even if elaborate provisions are not made under S.489 on the same lines as under S.488, it cannot be said that a court acting under S.489 has not all the powers it has under S.488. The result is that if the magistrate has power under S.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. Lilawant'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 of that 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.;
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