2025:HHC:20827 IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr.Rev. (FC) 2/2025 Decided on: 30.6.2025 Raksha Devi …..Petitioner Versus Kuldeep Kumar ….Respondent Coram: The Hon’ble Mr. Justice Tarlok Singh Chauhan, Judge. The Hon’ble Mr. Justice Sushil Kukreja, Judge. Whether approved for reporting?1Yes For the Petitioner: Ms. Tanu Sharma, Advocate. For the Respondent: Mr. Vinod Kumar Soni, Advocate. ____________________________________________________________ Justice Tarlok Singh Chauhan, Judge (oral) The limited question, which arises for consideration in this case, is whether the learned Family Court in the given facts and circumstances of the case was required to award, alter or enhance the amount of maintenance from the date of filing of application or from the date of the order as has otherwise been ordered in the instant case. However, before answering this question, certain brief facts need to be noted. 1Whether reporters of the local papers may be allowed to see the judgment? Yes. 2 2025:HHC:20827 2 The petitioner was initially awarded maintenance allowance @ Rs.900/- per month vide order passed by the learned Magistrate to this effect on 24.10.2007. Aggrieved by the said order, the petitioner filed an application for enhancement of maintenance and the same was increased to Rs.1400/- per month to her vide order dated 30.04.2010. 3 The petitioner thereafter filed another application for enhancement of maintenance and vide order dated 09.07.2013, an amount of Rs1000/- was granted to her and at the same time, an amount of Rs.900/- was granted to her son. 4. The application, out of which the present petition emanates, was thereafter filed for enhancement of maintenance on the ground that it has become difficult for the petitioner to maintain herself at meager amount of Rs.1900/-. It was also averred that the respondent was serving in a hotel (Manali) as a Manager and is earning Rs.25,000/- per month. 5 The other facts need not to be referred to as the findings recorded by the learned Family court as regards the respondent regarding the enhanced amount of maintenance herein have attained finality. Suffice it to say that the learned Family Court vide impugned order dated 29.12.2023 has awarded a sum of Rs.4500/- to the petitioner as against 3 2025:HHC:20827 Rs.1000/- towards maintenance allowance from the date of order i.e. 29.12.2023. 6 It is contended by Ms. Tanu Sharma, Advocate that the maintenance, which ought to have been granted from the date when the application was made, is based on the rationale that the primary object of maintenance laws is to protect a deserted wife and dependent children from destitution and vagrancy. If maintenance is not paid from the date of application, the party seeking maintenance would be deprived of sustenance, owing to the time taken for disposal of the application, which often runs into several years. 7 Strong reliance in this regard has been placed on the judgment passed by Hon’ble Supreme Court in Rajnesh versus Neha and another, 2021(2) Supreme Court Cases 324 wherein the Hon’ble Supreme Court after taking into consideration a number of judgments held that it is from the date of filing of the application that the maintenance is required to be awarded and not from the date of order. It would be apt to reproduce paras No. 109 to 113 of the judgment, which read as under:- “109. The judgments hereinabove reveal the divergent views of different High Courts on the date from which maintenance must be awarded. Even though a judicial discretion is conferred upon the Court to grant 4 2025:HHC:20827 maintenance either from the date of application or from the date of the order in S. 125(2) Cr.P.C., it would be appropriate to grant maintenance from the date of application in all cases, including Section 125 Cr.P.C. In the practical working of the provisions relating to maintenance, we find that there is significant delay in disposal of the applications for interim maintenance for years on end. It would therefore be in the interests of justice and fair play that maintenance is awarded from the date of the application. 110. In Shail Kumari Devi and Ors. v Krishnan Bhagwan Pathak, this Court held that the entitlement of maintenance should not be left to the uncertain date of disposal of the case. The enormous delay in disposal of proceedings justifies the award of maintenance from the date of application. In Bhuwan Mohan Singh v Meena, this Court held that repetitive adjournments sought by the husband in that case resulted in delay of 9 years in the adjudication of the case. The delay in adjudication was not only against human rights, but also against the basic embodiment of dignity of an individual. The delay in the conduct of the proceedings would require grant of maintenance to date back to the date of application. 111. The rationale of granting maintenance from the date of application finds its roots in the object of enacting maintenance legislations, so as to enable the wife to overcome the financial crunch which occurs on separation from the husband. Financial constraints of a dependant spouse hampers their capacity to be effectively represented before the Court. In order to prevent a dependant from being reduced to destitution, it is necessary that maintenance is awarded from the date on 5 2025:HHC:20827 which the application for maintenance is filed before the court concerned. 112. In Badshah v Urmila Badshah Godse, the Supreme Court was considering the interpretation of Section 125 Cr.P.C. The Court held: “13.3. …purposive interpretation needs to be given to the provisions of Section 125 CrPC. While dealing with the application of a destitute wife or hapless children or parents under this provision, the Court is dealing with the marginalised sections of the society. The purpose is to achieve “social justice” which is the constitutional vision, enshrined in the Preamble of the Constitution of India. The Preamble to the Constitution of India clearly signals that we have chosen the democratic path under the rule of law to achieve the goal of securing for all its citizens, justice, liberty, equality and fraternity. It specifically highlights achieving their social justice. Therefore, it becomes the bounden duty of the courts to advance the cause of the social justice. While giving interpretation to a particular provision, the court is supposed to bridge the gap between the law and society.” (emphasis supplied). 113. It has therefore become necessary to issue directions to bring about uniformity 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. The right to claim maintenance must date back to the date of filing the application, since the period during which the maintenance proceedings remained pending is not within the control of the applicant. 6 2025:HHC:20827 8 Noticeably, the aforesaid decision was though passed by the Hon’ble Supreme Court while dealing with a case under the Protection of Women From Domestic Violence Act and Section 125 (2) Cr.P.C., however, the legal position will have to be examined with another decision of the Hon’ble Supreme Court in S. Vijikumari vs. Mowneshwarachari C., AIR 2024 SC 5058, wherein the Hon’ble Supreme Court in paras 14 and 15 of the judgment observed as under:- “14. However, for the invocation of Section 25(2) of the Act, there must be a change in the circumstances after the order being passed under the Act. Alexander Sambath Abner vs. Miron Lede, 2009 SCC OnLine Mad 2851 is also to the same effect. Thus, an order for alteration, modification or revocation operates prospectively and not retrospectively. Though the order for grant of a maintenance is effective retrospectively from the date of the application or as ordered by the Magistrate, the position is different with regard to an application for alteration in an allowance, which may incidentally be either an increase or a reduction – to take effect from a date on which the order of alteration is made or any other date such as from the date on which an application for alteration, modification or revocation was made depending on the facts of each case. 15. The position is analogous to Sections 125 and 127 of the CrPC, 1973, wherein the legislature under Section 125(2) of the CrPC, 1973 had given power to the Magistrate to grant maintenance from the date of the application, but did not give any such power 7 2025:HHC:20827 under Section 127 of the CrPC, 1973. Therefore, under the Act, the order of alteration or modification or revocation could operate from the date of the said application being filed or as ordered by the Magistrate under Section 25(2) of the Act. Thus, the applicant cannot seek its retrospective applicability, so as to seek a refund of the amount already paid as per the original order.” 9 It is required to be noted that even in the decision in S. Vijikumari’s case (supra), it has been held that though the order for grant of a maintenance is effective retrospectively from the date of the application or as ordered by the Magistrate, the position is different with regard to an application for alteration in an allowance, which may incidentally be either an increase or a reduction to take effect from a date on which the order of alteration is made or any other date such as from the date on which an application for alteration, modification or revocation was made depending on the facts of each case. 10 The Hon’ble Supreme Court in its very recent judgment in Shahjahan versus The State of Uttar Pradesh, 2025 INSC 528 has reiterated legal position as held in Rajnesh’s case (supra) held as under:- “18. No doubt, Rajnesh (supra) was pronounced after the Family Court’s Order and Impugned Order were passed, but its enunciation of the law would entail that maintenance should be reckoned as awarded from the date of filing of the application in this behalf. Having 8 2025:HHC:20827 regard to the totality of the facts and circumstances, we direct the respondent no.2 to pay Rs.4,000/- (Rupees Four Thousand) per month as maintenance to the appellant, from the date of filing of the maintenance petition before the Family Court. The maintenance awarded to the children will also be payable from the date of filing of the maintenance petition before the Family Court. We take judicial notice that during the pendency of the appeal before this Court, the daughter Aatika has attained majority. Having due regard to the scheme of Section 125 of the Code, it clarified that the maintenance awarded in her favour will only be payable up to the date of her attaining majority. The entire amount of arrears shall be deposited by the respondent no.2 in the Family Court within four months from today, after adjustment of amount(s), if any, already paid/deposited by him.” 11 There is in fact specific authority of Hon’ble Supreme Court as regards the enhancement of maintenance in the cases falling under Section 127 Cr.P.C and it has been specifically held in Sau Suman Narayan Niphade versus Narayan Sitaram Niphade, 1995 Supp (4) SCC 243 that the question of granting enhanced maintenance from the date of the application or from the date of order is within the discretion of the Court. 12 This position is not different from the one as is envisaged under Section 125 Cr.P.C or Section 127 Cr.P.C. as it would be evident from the judgment of the Hon’ble Supreme 9 2025:HHC:20827 Court in Jaiminiben Hirenbhai Vyas versus Hirenbhai Rameshchandra Vyas, 2015(2) SCC 385. 13 Thus, the law appears to be well-settled that it is within the discretion of the Court to determine as to from which date the enhancement should take effect i.e. the date of the order or the date of the application or any other date depending on the facts of each case. 14 Judged in the light of aforesaid exposition of law, the records reveal that the proceedings remained pending before the learned Family Court for more than nine years i.e from 02.09.2014 to 29.12.2023 and it was mainly at the instance of the respondent herein, that such proceedings were delayed. Obviously, in such circumstances, the respondent cannot take an advantage of his own wrong by claiming that the order of enhanced maintenance should become operative only from the date of such order and not from the date of filing of application. 15 Since the proceedings have been delayed for nearly a decade that too at the instance of the respondent, therefore, we are of the considered opinion that the learned Family Court was not correct in awarding the enhanced maintenance from the date of the order rather the same in the given facts and circumstances was required to be granted from the date of filing of the application. 10 2025:HHC:20827 16 In view of aforesaid discussions and for the reasons stated here-in-above, we find merit in the instant petition and accordingly, the impugned order is modified to the extent that the enhanced maintenance shall be payable to the petitioner from the date of filing of the application as against the date of the order, as awarded by the learned Family Court. 17 The petition is allowed in the aforesaid terms, so also the pending application(s), if any, leaving the parties to bear their own costs. (Tarlok Singh Chauhan) Judge (Sushil Kukreja) 30.6.2025 Judge (pankaj)