THANU PILLAY GANGADHARAN PILLAY Vs. THANKAMMA RADHAMMA
HIGH COURT OF KERALA
THANU PILLAY GANGADHARAN PILLAY
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(1.) THIS case has come before this Bench on a reference by one of us to resolve the divergence of views reflected in the two decisions of this court, one in Bhargavi Amma v. Kuttikrishnan (1966 KLT. 194) by Govinda menon, J. and the other in Parameswara Moothar v. Balameenakshi (1968 KLT. 761)by Raghavan J. (as he then was ). The short question that needs to be decided is whether a Magistrate, in varying or cancelling under S. 489 Cr. P. C. , a maintenance allowance already granted under S. 488 Cr. P. C can direct the order to take effect from the date of the petition.
(2.) IN this case, on an application by the wife, maintenance was originally awarded at Rs. 15 per month, which was reduced to rs. 10 per month by this court in Crl. R. P. No. 241 of 1967. Subsequently, an application was made under S. 489 Cr. P. C. on 7th October 1971, which was disposed of ex parte on 31st January 1972, enhancing the amount of maintenance to Rs. 17 per month. The husband filed an application to set aside the ex parte order. Evidence was taken and the amount was further enhanced to Rs. 20 payable from the date of the petition. The petitioner before us, questions the jurisdiction of the Magistrate in directing the enhancement to take effect from the date of the petition and also the quantum of maintenance.
It is under S. 488 (1) Cr. P. C. that applications are made for maintenance allowance. As to when the order under S. 488 (1) should take effect is provided for in S. 488 (2), which reads as follows: "such allowance shall be payable from the date of the order, or if so ordered from the date of the application for maintenance. " Under this section, the Magistrate is given power to direct the order to take effect either from the date of the order or from the date of the application for maintenance. Alteration in allowance is provided for under S. 489, which has two sub-sections, which are extracted below: "489 (1) On proof of a change in the circumstances of any person receiving under S. 488 a monthly allowance, or ordered under the same section to pay a monthly allowance to his wife or child, the Magistrate may make such alteration in the allowance as he thinks fit: Provided that if he increases the allowance the monthly rate of five hundred rupees in the whole be not exceeded. (2) Where it appears to the Magistrate that, in consequence of any decision of a competent civil court, any order made under s. 488 should be cancelled or varied, he shall cancel the order or, as the case may be, vary the same accordingly. " Sub-s. (I) deals with alteration of allowances, either enhancement or reduction. Sub-s, (2) deals with the variation or cancellation of the order in consequence of any decision of a competent civil court.
The new Code of Criminal Procedure, which came into force on 1st April 1974, although has incorporated changes in other respects, has not materially changed the scope of these sections. S. 125 (2) corresponds to S. 488 (2) and S. 127 (1) and (2) corresponds to S. 489. "
(3.) THE argument on behalf of the petitioner is that S. 488 (2) clearly authorises the Magistrate, to direct the order to take effect from the date of the application. This enabling provision was introduced by an amendment, while the 1883 Act did not contain such a provision. S. 489 did not contain such a provision at any time. It is therefore contended that an order under S. 489 can take effect only from the date of the order and not from an earlier date.
The contention on behalf of the respondents on the other hand is that S. 489 is not an independent section but is in effect only a proviso or corollary to S. 488. The provisions in S. 488 can be made applicable to all orders passed under S. 489 also.;
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