ORDER
L.S. Mehta, J.
1. This is a reference dated May 3, 1972 submitted by learned Additional Sessions Judge No. 1. Jodhpur, re-commending that the stay granted under Sub-section (5) of Section 488 Cr.P.C. by Sub-Divisional Magistrate Jodhpur, on July 3, 1971 be ordered to be cancelled.
2. The short facts of this case are that an application had been filed under Section 488 Cr.P.C. by Mst. Patasi. wife of Ganesh Sargara resident of Bilara, against her husband in the court of Sub-Divisional Magistrate. Jodhpur, for award of suitable maintenance. Learned Sub-Divisional Magistrate Jodhpur had issued an order of subsistence on January 20. 1969 to the effect that non-petitioner Ganesh would pay Rs. 40/- p.m. to his wife Mst. Patasi, with effect from January, 1969. Subsequently an execution application had been moved by Mst. Patasi for the recovery of subsistence money from January 1969 to July 1969. Whatever amount had stood due for that period had been paid to her, Later on another application had been moved for realising alimony from August 1969 to June 1970, and attachment warrant had been issued on July 27. 1970 for the recovery of Rs. 440/-. Again Mst. Patasi had made another application for levying her maintenance allowance from July 1970 to May 1971. The Sub-Divisional Magistrate had issued attachment warrant for the purr pose on June 21, 1971, on July 1, 1971, on an application dated October 28, 1970 made by Ganesh maintenance order was cancelled. Later on i.e. on July 3, 1971 Ganesh applied for the stay of the attachment order and that very day learned Sub-Divisional Magistrate suspended the same. Against that order a revision petition was taken in the court of learned Sessions Judge, Jodhpur. That application it appears, was transferred to the court of Additional Sessions Judge No. 1 Jodhpur for its disposal. Learned Additional Sessions Judee confides in the view that no recovery of the maintenance amount for the period prior to the cancellation of the order under Sub-section (5) of Section 488 Cr.P.C. could have been staved, as such an order could not have any retrospective operation. He, therefore, recommends, that the order, dated July 3, 1971 of the Sub-Divisional Magistrate Jodhpur being illegal, should be quashed.
3. The only question that merits Consideration for the disposal of this reference is whether the stay order, passed by learned Sub-Divisional Magistrate, Jodhpur dated July 8, 1971 can look back upon the previous proceedings. In this case the order for the grant of. the subsistence allowance was passed on January 20, 1969, by learned Sub-Divisional Magistrate Jodhpur. That order was cancelled on July 1, 1971. Ganesh then moved an application for the stay of the initial order passed on July 3, 1971. The stay application would be operative from July 3, 1971 and not with retrospective effect upon the presumption that order which has already been given would hold good till it is stayed. It is a fundamental rule of law of our country that no order shall be construed to have retrospective operation unless such a construction appears very clearly in the terms of the statute or arises by necessary and distinct implication. Retrospective operation is not to be given to an order so as to impair an existing right or obligation, otherwise than as regards the matter of procedure, unless that fact cannot be avoided without doing violence to the language of the enactment. If the enactment is expressed in the language which is fairly capable of either interpretation, it ought to be construed as prospective only. Under Sub-section (2) of Section 488, Criminal Procedure Code order for the grant of allowance can be operative from the date of the order or is so ordered from the date of the application for maintenance. Sub-section (5) of Section 488, Criminal Procedure Code does not envisage that whatever had been paid to the grantee would have to be refunded by her if the order of maintenance is subsequently cancelled on the ground that she was living in adultery, or that without sufficient reason she refused to live with her husband, or that they are living separately by mutual consent. Such an order would hold good from the date of Its issue. In other words, an offer made to maintain a wife on the condition of her living with the husband does not operate retrospectively so as to provide a justification for the earlier breach of the order made under Section 488(1) Cr.P.C. The husband can resist enforcement of the order under certain changes in the situation between the husband and the wife, which may be classified as sufficient cause under proviso 1 to Sub-section (3) of Section 488 Cr.P.C. or he can get the order cancelled under Sub-section (5) of Section 488 Cr.P.C. for the reasons mentioned therein. A subsequent change in the position in conformity with proviso 1 to Sub-section (3) of Section 488 or Sub-section (5) of that section will not have the effect of doing away with the earlier breach.
4. It is no doubt true that in Smt. Kalvani v. Nirmal Kumar : AIR1957Cal115 a contrary view has been taken. In that case it has been observed by the Calcutta High Court that where an order of maintenance is cancelled, it must mean as though the order of maintenance was never made and where such is the position, there is no question of any order of maintenance, being enforced, for there is really nothing to enforce after the order has been cancelled. Similar view was taken in Rukmini Bai v. Suraj Bhan Singh : AIR1963AP407 . These authorities do not appear to be sound. An order under Sub-section (1) of Section 488 Cr.P.C. can be cancelled under Sub-section (5) of Section 488 Cr.P.C. or rendered ineffective under proviso V to Sub-section (3) for the reasons mentioned therein. When these reasons have come in to existence after the order under Section 488(1) Cr.P.C. has been passed, the order passed under Sub-section (1) of Section 488 Cr.P.C. does not cease to exist. In short the order issued under Sub-section (1) of Section 488 Cr.P.C. would be enforceable till it is cancelled at a subsequent stage for the reasons given under the aforesaid provisions of law. If the observation made by the Calcutta or Andhra Pradesh High Court in the above authorities is taken to be sound, it would result in startling proposition. Assuming that an. order under Sub-section (1) of Section 488 Cr.P.C. is passed in the year 1971 In favour of a wife and that order is implemented for a period of say about, 4 years, after the lapse of 4 years. on an application made by the husband, that order is rendered unenforceable or is cancelled and if the subsequent order is given retrospective effect, then whatever amount had been given to the wife would be recoverable from her at a posterior stage. I do not think such a position was ever contemplated by the Legislature.
5. With that approach to the matter I will like to cite a Division Bench case of the Allahabad High Court, Mehrunnisa v. Noor Mohammad : AIR1971All138 . In that case the Court succinctly set out:
The view that once the order under Section 488(1) is cancelled it would not be enforceable even for the period prior to that when such a change in situation took place which led to the cancellation of the order under Section 488(5) is not correct. If In proceedings for recovery of arrears, the husband makes an offer to maintain her provided she lives with him and it is found that the refusal by the wife to live with the husband is not reasonable and the order under Section 488(1) is cancelled on that ground, it would not affect the proceedings for enforcement of the order prior to the date of the offer.
Similarly, His Lordship Jagan Mohan Reddy J. in B. Satteyya v. Malsoor A.I.R. 1954 Hyd 53 : 1954 Cri.L.J. 444 in giving the judgment of the Court, said:
Order of cancellation of maintenance always operates prospectively and not retrospectively.
Without referring to a number of other cases. I turn to the observations made by His Lordship Govinda Menon J. in Bhargavi Amma v. Kuttikrishnan : AIR1967Ker54 . Its head note (B) is in these terms:
Although a Magistrate has power under Section 488 (2) to take back the order of maintenance in. the first instance to the date of application, an order of cancellation of maintenance can always operate prospectively and not retrospectively.
6. In the light of the above discussion it is plain that I cannot read a power into the Code of Criminal Procedure which is not there. Therefore, the stay order passed by the Sub-Divisional Magistrate Jodhpur, on July 3, 1971 is without jurisdiction, as no such order could have, under the law effected the previous proceedings retrospectively.
7. In the result, I accept the reference made by learned Additional Sessions Judge No. 1 Jodhpur and direct Sub-Divisional Magistrate. Jodhpur to enforce the order made under Section 488(1) Cr.P.C. in accordance with law, for the period for which the enforcement is sought' The application made by Ganesh on July 3, 1971, should not stand in the way of execution of the attachment orders passed on July 27, 1970 and June 21. 1971 and the money realised thereunder should be paid to Mat. Patasi.