MEHTA, J.—This is a reference, dated May 3, 1972, submitted by learned Additional Sessions Judge No. 1, Jodhpur, recommending that the stay granted under sub sec. (5) of S. 488, Cr.P.C., by Sub-Divisional Magistrate, Jodhpur, on a July 3, 1971, be ordered to be cancelled. 2. The short facts of this case are that an application had been filed u/s. 488, Cr. P.C., by Mst. Patasi, w/o Ganesh Sargara, r/o 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 sustenance on 20-1-1969, 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 sustenance 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 purpose on June 21, 1971. On July 21,1971. 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 Judge confides in the view that no recovery of the maintenance amount for the period prior to the cancellation of the order under sub-sec. (5) of sec. 488, Cr. P. C. could have been stayed, 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, 3. 1971, can look back upon the previous proceedings. 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, 3. 1971, can look back upon the previous proceedings. In this case the order for the grant of the sustenance 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 on prospective only. Under sub-sec. (2) of sec. 488, Cr. P. C order for the grant of allowance can be operative from the date of the order, or, if so ordered, from the date of the application for maintenance. Sub-sec. (5) of sec. 488, Cr.P.C., 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 docs not operate retrospectively so as to provide a justification for the earlier breach of the order made under sec. 488(1) Cr. 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 docs not operate retrospectively so as to provide a justification for the earlier breach of the order made under sec. 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 one to sub-sec. (3) of sec. 488, Cr. P.C., or he can get the order cancelled under sub-sec. (5) of sec. 488, Cr. P. C., for the reasons mentioned therein. A subsequent change in the position in conformity with the proviso one to sub-sec. (3) of sec. 488 or sub-sec. (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. Kalyani vs. Nirmal Kumar(l), 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 in 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 vs. Suraj Bhan Sing(2). These authorities do not appear to be sound. An order under sub-sec. (1) of sec. 488, Cr. P. C. , can be cancelled under sub-sec. (5) of sec. 488, Cr. P. C., or rendered ineffective under proviso one to sub-sec. (3), for the reasons mentioned therein. When these reasons have come into existence after the order under sec. 488(1), Cr. P. C. has been passed, the order passed under sub-sec. (1 of S. 488. Cr. P. C. does not cease to exist. In short, the order issued under sub-sec. (1) of sec. 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 starting proposition. Assuming that an order under sub-sec. (1) of sec, 488, Cr. 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 starting proposition. Assuming that an order under sub-sec. (1) of sec, 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 vs. Noor Mohammed(3). In that case the Court succinctly set out : "The view that once the order under sec. 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 sec. 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 S. 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 vs. Malsoor(4) 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 vs. Kuttikrishnan(5). Its head note (B) is in these terms : "Although a Magistrate has power under sec. 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 retrospetcively. " 6. Its head note (B) is in these terms : "Although a Magistrate has power under sec. 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 retrospetcively. " 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 sec. 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 Mst. Patasi, |