1 revn-134-06 mnm IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL REVISION APPLICATION NO. 134 OF 2006 Chandrakant Kisan Jagtap ..Applicant Vs. Sou. Vijaya Chandrakant Jagtap & Anr ..Respondents Mr. V. S.Kapse a/w Mr. Shailesh Chavan for the Applicant Mr. Milind Deshmukh for Respondent No.1 and 2 Mrs. A.A.Mane for State CORAM : SMT. ROSHAN DALVI, J. DATED : 28TH JULY, 2011 P.C. : 1. The application was filed under Section 127 of Cr.P.C. for variation of the order of maintenance granted under Section 125 of Cr.P.C. The variation has been allowed. There is no challenge to the order so far as the variation is concerned. However, the Petitioner challenges the date from which the variation could be allowed : from the date of the order or the date of the application. That question of law was kept open to be considered when rule was granted. 2. The Petitioner contends that the variation of the order of maintenance cannot be from the date of the application because the Petitioner was paying the earlier amount granted under Section 125 when the variation application was filed and because Section 125 relating to the payment of maintenance shows a specific provision made therein under Section 125(2) to allow the Magistrate to grant maintenance from the date of the application which provision is absent in Section 127. It may be mentioned that there is no such 2 revn-134-06 express provision even in other legislations as also in CPC with regard to suits granting express powers to courts to pass orders or decrees from a specified date being the date of the application of the proceeding or the date of the order made thereon. Whenever suits and proceedings are disposed of the cause of action or the grievance therein is seen as on the date of the suit and the monetary relief, if any, is granted from the date of the application or the suit. That is because the court take up time for disposal of the application/proceeding based upon their docket. Consequently the lack of express provision in Section 127 does not show that only in that provision the specific power has been exempted. 3. The Petitioner’s Advocate has relied upon 4 Judgments. The Respondent’s Advocate relied upon the Division Bench Judgment of this Court in the case of Hiralal Valvadas Vs. Bai Amba reported in AIR 1926 Bombay, 149, in which it is held that under Section 488 (equivalent to Section 125) a specific provision for grant of maintenance from the date of the application was made. The same power could be exercised also for increase in rate of maintenance under Section 489 despite the fact that there was no specific provision thereunder. 4. The Petitioner however, relied upon a Single Judge Judgments of the Courts of Calcutta and Andhra Pradesh. In the case of Joydeb Chakraborty Vs. Bharti Chakravarty II­1995(1) Crimes 493 (Calcutta). In the Calcutta case, the learned Judge has relied upon the Division bench of the Bombay High Court. He deferred therefrom. The Learned Judge has considered that since there is specific power under Section 488(1) and no specific power under Section 489, in the absence of special circumstances for delay in the 3 revn-134-06 inquiry pending before the Court, the increase in the rate of maintenance cannot be granted retrospectively. The Learned Judge has considered that the rate cannot be retrospectively varied because it was legal liability upon the Respondent. However, that reasoning is equally applicable to all civil suits and applications for which also no specific provision is made. 5. In the case of Pilli Venkanna Vs. Pilli Nookalamma reported in 1998 CRI.L.J. 1922 , the Andhra Pradesh High Court Single Judge has held that there was no discretion given to the Magistrate under Section 127. He must act within strict limitation set out by exercise of its jurisdiction and cannot overstep the same. The grant from the date of the application would not overstep the limits of the jurisdiction when the application remained pending before the Court for no fault of the Petitioner. 6. On that analogy this Court in the case of Gangadhar Narhari Kedare Vs. Sou. Sonyabai Gangadhar Kedare reported in 2005 ALL MR (Cri)2621 , has held that power of the Court under Section 127 is not distinct and separate from the power under Section 125 for considering the liability to pay maintenance which exists on the date of the application. If the application makes out a case of existence of change of circumstances on the date of making an application and merely because the Court took time to decide the application, the Applicant could not be made to suffer. 7. That analogy considering also the practice of the Courts in granting decrees and orders from the date of the suit and application, make this position very clear. 8. The Supreme Court in the case of Sau Suman Narayan Niphade Vs. Narayan Sitaram Niphade reported in 1995 Supp (4) Supreme 4 revn-134-06 Court Cases 243, held that it was in the discretion of the Court to grant such order from the date of the application. The discretion must be exercised judicially. Unless the application is disposed of on the date of the application itself or soon thereafter, it cannot be in the discretion of any Court to refuse the reliefs for the period of time that the application remains pending. It may be mentioned that it would always be in the interest of the Respondent to delay a petition for maintenance or change in maintenance; it would never be that the Petitioner herself or even himself (in case of applications for reduction of maintenance) would needlessly delay the hearing. The hearing would be delayed either by the Respondent in filing the required affidavits or documents or otherwise or by the Court in taking up the application for final disposal due to its own work­load. The Petitioner can never be made to bear the burden of either of these situations. If that is done, it would be an impetus to the Respondent to delay the hearing of the applications under Section 127 needlessly or malafide. 9. Hence the question of law sought to be raised by the Petitioner in this Writ Petition would not enable the Petitioner to successfully challenge the order impugned. The Writ Petition is, therefore, dismissed and Rule is discharged. 10.The order of interim stay, if any, granted in this Petition shall continue for two weeks. (SMT. ROSHAN DALVI, J.)