The Madras High Court recently held that the award of maintenance in matrimonial disputes should ordinarily be from the date of the application by the woman-claimant and not from the date of the order awarding maintenance (Mohamed Nisha Banu v. Mohamed Rafi and ors). An award from the date of the order can be made only if there are sufficient supporting reasons for the same, Justice K Murali Shankar ruled
Right to claim maintenance must date back to date of filing of application, not date of court order: Madras High Court
The Madras High Court recently held that the award of maintenance in matrimonial disputes should ordinarily be from the date of the application by the woman-claimant and not from the date of the order awarding maintenance (Mohamed Nisha Banu v. Mohamed Rafi and ors).
An award from the date of the order can be made only if there are sufficient supporting reasons for the same, Justice K Murali Shankar ruled.
The order passed last week by the Madurai Bench reasons:
“The right to claim maintenance must date back to the date of filing of the application, since the period during which maintenance proceedings remained pending is not within the control of the applicant.”
Notably, the High Court placed substantial reliance on the case of C Rajnesh v. Neha and another, whereing the Supreme Court had noted that even though a court is granted the discretion to grant maintenance either from the date of application or from the date of award under Section 125, CrPC, “it would be appropriate to grant maintenance from the date of application in all cases including the Section 125 Cr.P.C.”
The Supreme Court had reasoned,
“In the practical working of the Provisions relating to maintenance, (we) find that there is a significant delay in disposal of the applications for interim maintenance for orders an end and it would therefore be in the interest of justice and fair play the maintenance is awarded from the date of application.”
The Court was dealing with a plea to enhance a maintenance award of Rs 5,000 moved by an estranged wife. The case involved allegations of domestic violence, of forcibly taking custody of minor children by the husband and of the wife being shut out of the matrimonial home.
On a perusal of facts on record, the High Court did not find any reason to enhance the maintenance already awarded. However, the Judge took note that the lower court had directed that the maintenance would be payable only from the date of the court’s order and not from the date of filing the application.
The High Court observed further that the lower court had not assigned any reason for not granting the maintenance from the date of the application or for granting the relief only from the date of the order. In this case, the claimant had filed the maintenance application in 2014, whereas the award of maintenance was made only in 2017.
Justice Shankar acknowledged that there is no provision in the Protection of Women from Domestic Violence Act, 2005 nor the Hindu Adoption and Marriage Act with respect to the date on which a maintenance order would take effect.
However, Section 125 of the Code of Criminal Procedure (CrPC), (which deals with maintenance of wives, children and parents) contemplates that “the Magistrate may award maintenance either from the date of order or from the date of application.”
While so, the Court took note of the Supreme Court’s ruling in Jaiminiben Hirenbhai Vyas and another Vs. Hirenbhai Rameshchandra Vyas wherein the top court said that Section 125, CrPC impliedly requires the court to decide on when the award of maintenance should take effect (either on date of application or on date of award) after having regard to the relevant facts.
While the court may direct that the maintenance award would only run from the date of the order for good reasons, it was cautioned that
“It is neither appropriate nor desirable that a Court simply states that maintenance should be paid from either the date of order or the date of the application in matters of maintenance.“
Justice Shankar also made a reference to Section 354(6), CrPC (orders under Section 125, CrPC shall contain the point or points for determination, the decision thereon and the reasons for the decision) to observe,
“… the Court should record reasons in support of the order passed by it, in both eventualities and that the purpose of the provision is to prevent vagrancy and destitution in society and the Court must apply its mind to the options having regard to the facts of the particular case.”
In this backdrop, and particularly in view of the Supreme Court’s ruling in the C Rajnesh case whereby the Supreme Court had “categorically directed that all the Courts to award maintenance from the date of application”, the High Court has now ruled:
“It has therefore become necessary to issue directions to bring about the unity and consistency in the orders passed by all Courts, by directing that maintenance be awarded from the date on which the application was made before the concerned Court.”
With these observations, the High Court partly allowed the plea before it and directed that the maintenance award be paid to the petitioner from the date of filing the application.
Advocate SM Jinnah appeared for the petitioner.
