125 CrPC | Mandatory Grant of Interest on Maintenance Cannot Be Overlooked:  Bombay High Court

“It is now mandatory to award interest on the amount of maintenance... Courts are expected to award interest so that weaker sections get maintenance expeditiously” — Bombay High Court (Bench of Justice Firdosh P. Pooniwalla) delivered a significant judgment allowing a review application under Section 125 CrPC and granting interest on maintenance arrears which was previously omitted. The Court held that failure to apply the binding precedent of Prakash vs. Vithabai, 2024 SCC OnLine Bom 1487, mandating interest on maintenance amounts, constituted an "error apparent on the face of the record."

The Family Court had earlier awarded maintenance to the applicants but did not include interest. Although the Bombay High Court, in its earlier order dated 29.11.2024, enhanced maintenance, it failed to direct interest on arrears due to the omission of the binding judgment of Prakash vs. Vithabai, which was brought to the Court’s notice only after the pronouncement. This prompted the applicants to seek a review.

Justice Pooniwalla acknowledged, “The judgment in Prakash (supra) clearly lays down that it is mandatory to award interest on the amount of maintenance granted. This was not considered by this Court while delivering the earlier judgment... the same would clearly amount to an error apparent on the face of the record.”

The Court clarified that despite the bar under Section 362 CrPC (now Section 403 BNSS), review is maintainable in proceedings under Section 125 CrPC as they are "quasi-civil in nature." Citing Sanjeev Kapoor vs. Chandana Kapoor [(2020) 13 SCC 172], the Court stated, “The embargo under Section 362 CrPC is expressly relaxed in proceedings under Section 125 CrPC.”

The Court emphatically reinforced that non-consideration of binding precedents warrants review jurisdiction: "When the clear legal position established by a binding authority is overlooked... it becomes an error apparent on the face of the record", the Court quoted from the Calcutta High Court's decision in Tinkari Sen vs. Dulal Chandra Das.

Moreover, the judgment echoed the social justice purpose behind Section 125 CrPC:

"Maintenance of wives, children, and parents is a continuous obligation... courts must bridge the gap between law and society" as reiterated from Badshah vs. Urmila Badshah Godse.

The Court held that the Family Court’s failure to award interest violated the spirit of Prakash where it was emphasized: "Husbands or fathers are many a times not depositing arrears of maintenance for years together... They have no fear or burden to pay interest. It is a serious legal mischief... Therefore, Courts are expected to award interest so that these weaker sections get their maintenance amount expeditiously."

Accordingly, the Bombay High Court reviewed its judgment and directed that the wife and child (applicants) be paid interest at 9% per annum on the maintenance amount from 07.06.2024 till realization. The rest of the judgment remained unaltered.

Justice Pooniwalla concluded, "To secure the rights of the weaker sections fully, effectively, and speedily, which is the object of justice, interest must be awarded which is rationally expected."

Date of Decision:01.04.2025