In the case of Pradeep Kumar Pradhan (supra) while granting maintenance to the wife in a proceeding under Section 9 of the Hindu Marriage Act, there was a controversy as to whether the said maintenance would be payable from the date of the application or from the date of the order. Relying on the ratio of Susmita Mohanty's case the Court observed that normally alimony is to be granted from the date of filing of the application and so the maintenance awarded would be payable from the date of the application. In Susmita Mohanty's case adopting the principle that award of maintenance is a mode of preventing vagrancy or its consequence the Court said that the maintenance awarded should be computed from the date of the application and not from the date of the order, as protracted litigation may deprive the needy party of availing the maintenance
Orissa High Court
Sri Fani Bhusan Nanda vs Kshiti Sundari Nanda on 2 August, 2006
Equivalent citations: I (2007) DMC 751, 2006 II OLR 490
1. The present Revision is against an order dated 11.09.2003 passed by the learned Judge, Family Court, Rourkela in Execution Proceeding No. 22 of 2003 rejecting the objection raised by the petitioner- J. Dr. under Section 47 of the C.P.C. to the execution filed for recovery of the maintenance amount by the Opposite party-D.Hr.
2. The opposite party, who is the widow of Jagamohan Nanda filed a case under Section 22 of the Hindu Adoption and Maintenance Act in O.S.No. 54 of 1994 against the present petitioner, who happens to be the brother of the aforesaid Jagamohan Nanda. The Court after hearing the parties rejected the petition where after the present opposite party carried the matter to this Court in Civil Appeal No. 5 of 1996 and this Court while allowing that appeal directed the petitioner to pay a monthly maintenance of Rs. 2,000/- to the opp. party till her death. Pursuant to that order, the opposite party as D. Hr. filed the Execution Case for recovery of the maintenance dues from the date of the application in Original Suit No. 54 of 1994. The petitioner-J.Dr. raised objection indicating that the order of maintenance is silent about the date from which the maintenance is to be paid and in that event the execution for realization of the maintenance amount cannot be made with effect from the date of filing of the suit. According to the petitioner-J.Dr., when the order is silent about the date from which the maintenance amount is to be paid, the maintenance amount can be realized only from the date of the order and not from the date of filing of the application. After hearing learned Counsel for the partfes and relying on the ratio laid down by this Court in the case of Susmita Mohanty v. Rabindra Sahu 1996 (10) OCR 410 : 1996 (I) OLR 361 the Executing Court held that the maintenance is to be realized from the date of filing of the application and accordingly rejected the objection of the petitioner-J.Dr. Challenging the said order the petitioner has filed this revision.
3. Mr. D. P. Mohanty, learned Counsel appearing for the petitioner submits that normally maintenance would be effective from the date of the order and not from the date of the application. So unless a specific direction is there from the Court granting the maintenance effecting from the date of the application, the Executing Court has to realize the maintenance from the date of the order and not from the date of the application. In support of his contention, Mr. Mohanty relies on an observation made in the case of Susmita Mohanty (supra) where in the context of maintenance under Section 125(2) of the Cr. P.C. an observation was made that if the Court does not specifically indicate the date from which the maintenance shall be payable, it should be taken as payable from the date of the order. As against this, Mr. S.J. Pradhan, learned Counsel appearing on behalf of Mr. B.P.Roy, submits that in the matter maintenance granted under the provision of the Hindu Marriage Act as well as the Hindu Adoption and Maintenance Act, the ratio is totally different and that in all cases where maintenance is granted under such law, it shall be payable from the date of the application and not from the date of the order irrespective of whether the Court mentions specifically about the date from which the order is to take effect. In support of his contention, Mr. Pradhan relies on the cases of Susmita Mohanty (supra), Pradeep Kumar Pradhan v. Dalimba Sahu, Sarojini Sarangi v. Dr. Biswanath Sarangi 66 (1988) CLT 593 and Bhanwar Lal v. Smt. Kamala Devi .
4. In the case of Pradeep Kumar Pradhan (supra) while granting maintenance to the wife in a proceeding under Section 9 of the Hindu Marriage Act, there was a controversy as to whether the said maintenance would be payable from the date of the application or from the date of the order. Relying on the ratio of Susmita Mohanty's case the Court observed that normally alimony is to be granted from the date of filing of the application and so the maintenance awarded would be payable from the date of the application. In Susmita Mohanty's case adopting the principle that award of maintenance is a mode of preventing vagrancy or its consequence the Court said that the maintenance awarded should be computed from the date of the application and not from the date of the order, as protracted litigation may deprive the needy party of availing the maintenance. In that case several previous decisions of the Apex Court and High Courts were referred. In the case of Sarojini Sarangi (supra) the interim maintenance under Section 24 of the Hindu Marriage Act was granted in favour of the wife basing on a subsequent petition. After the order the wife came up with a petition to give effect to that order of maintenance from the date of her filing of the first application which was still pending in the Court. Without considering that application the Court turned down her request indicating that the issue has been settled in the subsequent petition. The matter came up before this Court and on consideration of the facts and circumstances, this Court observed that in a case of interim maintenance the date of filing of the first application is relevant and therefore, the maintenance should be computed from the date of the first application. In the case of Bhanwar Lal (supra) Hon'ble Single Judge of Rajasthan High Court while dealing with a matter of delay occasioned due to lapse of the Court observed that for the act of the Court no party should suffer and accordingly ruled that the interim maintenance to the wife should be awarded from the date of the application. A close reading of all these case laws would lead to simple conclusion that in the matter of maintenance the date of application should always be regarded as the starting point for payment of maintenance as otherwise a party seeking maintenance may be deprived of such maintenance due to delay in disposal of her petition, which may occasion by the act of the Court or act of one of the parties. The ratio of the above noted cases satisfy judicial conscience and there is no reason not to concur to the said view. The conclusion, therefore, on the subject would be that whenever there is no contrary direction of the Court in the order of maintenance, the normal inference should be that the order of maintenance would be effective from the date of the application. Learned Executing Court, thus, did not commit any error in rejecting the objection of the J.Dr-petitioner to the executability of the order of maintenance from the date of the application. The impugned order, therefore, does not call for any interference and accordingly, the revision is dismissed.
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