Order Cancelling Maintenance U/S 127 CrPC Cannot Operate Retrospectively: Kerala High Court

The Kerala High Court on Monday ruled that an order of cancellation of maintenance under Section 127(2) of the Code of Criminal Procedure (CrPC) always operates prospectively and not retrospectively.

A Division Bench of Justice A. Muhamed Mustaque and Justice Sophy Thomas added that such cancellation orders cannot date back to the date of application and will operate only from the date the maintenance was cancelled. 

"The order of cancellation shall be effective only from the date of order, and it cannot date back to the date of application. Till the order is altered, modified or cancelled, the earlier orders will remain effective. So the order of cancellation of maintenance always operates prospectively and not retrospectively." 

The appellant-wife had married the respondent-husband in 1990 and they had three children in their wedlock. The wife contended that during their marriage, her husband regularly ill-treated her for more dowry.

In 2005, she and her children were ousted from the matrimonial house while the husband contracted a second marriage. Alleging that her husband abandoned her and their children without even paying maintenance, the wife moved a plea before the Family Court under Section 125 CrPC.

The Family Court awarded monthly allowance to the wife and the three children respectively finding that they have no means for their sustenance, and the respondent despite having sufficient means, was not maintaining them willfully. 

The quantum was reduced after the husband alleged that he had suffered a stroke and had no means to maintain them. 

A few years later, the respondent preferred another plea under Section 127 of CrPC to modify the maintenance order citing that he had no assets or source of income.  At this juncture, the Family Court found that the husband was suffering from several diseases and that a portion of his body was paralysed after the stroke.

Finding him to be incapable of doing any job, the maintenance order was cancelled. It was ordered that the wife and children were not entitled to recover maintenance from the husband from the date of the petition.

The Bench discarded the appellant's argument that she was compelled to bring more dowry from her house based on factual circumstances. 

However, it was noted that the Family Court had cancelled the maintenance order from the date of application, which means the cancellation was ordered retrospectively. 

The Court emphasised that the maintenance under Section 125 CrPC is payable from the date of order, or if so ordered, it can be from the date of application. It highlighted that while the legislature has empowered the Magistrate to date back the order to the date of application under Section 125, no such power was there under Section 127.

"We cannot read a power into the Code which is not there. The order of cancellation of maintenance always operates prospectively and not retrospectively." 

Therefore, it was found that the order of cancellation was effective only from the date of order and that it cannot date back to the date of application.

As such, the order cancelling the maintenance awarded from the date of the petition was set aside. It was further clarified that the wife and children were entitled to recover the arrears of maintenance as modified till 2017 and that the cancellation order will take effect only from the date of order i.e. 10.05.2017.

Advocates N. Mahesh and P. Rahim appeared for the wife while the husband was represented by Advocates S. Vinod Bhat and Anagha Lakshmy Raman. 

Case Title: Jumaila Beevi v. A. Nissar 

Citation: 2022 LiveLaw (Ker) 411

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