Judgment: Maintenance - Section 127

Court:Rajasthan High Court

Bench: JUSTICE S K Garg

Raj Kumar Vs. Mst. Shanta Bai On 14 February 2002

Law Point:
Petition under s. 127 of Crpc has to be filed before the Magistrate who has passed the first order of maintenance.

JUDGEMENT

1. This revision petition has been filed by the husband-pelitioner against the judgment dated 14.6.2000 passed by the learned Additional Sessions Judge No. 2, Chittorgarh in Criminal Revision No. 22/98 by which the learned Sessions Judge enhanced the maintenance of the respondent-wife to Rs. 400/- per month in place of Rs. 250 and maintenance of her children to Rs. 250/- each per month in place of Rs. 150/-each per month awarded by additional Chief Judicial, Kapasan by order dated 11.3.98.

2. The facts giving rise to this revision petition are as follows:

(i) The non-petitioner Smt. Shanta Bai who is wife of petitioner-husband filed an application under Section 125 Cr.P.C. before the learned Additional Chief Judicial Magistrate, Kapasan on 22.2.96 inter alia stating that their marriage took place on 30.6.90 and because of that marriage, two daughters were born and for maintenance of herself and for her children, she claimed maintenance.

3. The petitioner-husband filed a reply and after recording the evidence, the learned Additional Chief Judicial Magistrate through his order dated 11.3.98 accepted the application of respondent-wife and awarded maintenance to the tune of Rs. 250/-per month for herself and Rs. 150/- each for her two children totalling Rs. 550/- per month with effect from 6.3.1998.

4. Aggrieved from that order dated 11.3.98 the non-petitioner preferred a revision before the Additional Sessions Judge No. 2, Chittorgarh for enhancement of maintenance as according to her maintenance allowance awarded to her by order dated 6.3.98 was not proper and sufficient.

5. The learned Additional Sessions Judge No. 2, Chittorgarh through his judgment dated 14.6.2000 accepted that revision filed by the respondent-wife and modified and order dated 11.3.98 to the extent that the respondent-wife was awarded Rs. 400/- per month in place of Rs. 250/- per month and the two children were awarded Rs. 250/- per month in place of Rs. 150/- per month and further they were ordered to be paid with effect from 6.3.98, the date from which the learned Additional Chief Judicial Magistrate also allowed the maintenance to the respondent-wife and her children.

6. Aggrieved from the judgment dt. 14.6.2000 this revision petition has been filed.

7. In this revision petition, following two submissions have been raised by the learned counsel for the petitioner-husband:

(i) That the judgment dated 14.6.2000 passed by the learned additional Sessions Judge is illegal as the order of enhancement could only be passed by the Magistrate or by the Court who passed the earlier order i.e. in this case, only the Additional Chief Judicial Magistrate, Kapasan could have increased the amount of maintenance and the enhancement made by the Additional Sessions Judge in revision is perse illegal and without jurisdiction.

(ii) That the order of granting enhanced maintenance with effect from 6.3.98 is also illegal as it should have been allowed by the date when the impugned judgment was passed by the learned Additional Sessions Judge.

8. I have heard both.

9. For alteration in allowance, Section 127 Cr.P.C. may be referred to.

10. Section 127 Cr.P.C. makes a provision (1) for alteration of allowance on the proof of change in the circumstances of the parties, (2) for cancellation or variation of allowances in consequence of a decision of a competent civil Court, (3) for cancellation of allowance ordered after divorce and (4) for taking into consideration the amount of allowance ordered under Section 125 in a Civil Court.

11. Thus, in the above circumstances alteration of allowance can be made.

12. The next question that arises for consideration is which Court is competent to enhance the maintenance allowance.

13. A reading of Section 126 Cr.P.C. would show that it provides for procedure and the jurisdiction of the court where an application under Section 125 Cr.P.C. could be filed. Section 127 Cr.P.C. which is for alteration in the amount is completely different and for this Section 126, Cr.P.C. has no application. Section 127(1) Cr.P.C. provides a proof of change in the circumstances of any person, receiving under Section 125 a monthly allowance, or ordered under the same Section to pay a monthly allowance to his wife, child, father or mother, as the case may be, the Magistrate may make such alteration in the allowance as he thinks fit. The words “the Magistrate” would mean the Magistrate who had passed the first order of maintenance because Court is strengthened in this interpretation by the fact that Section 128 Cr.P.C. which is the section for enforcement order of maintenance specifically provides that such petition under Section 125 Cr.P.C. may be presented before “any Magistrate”. Therefore, in these circumstances, the petition under Section 127, Cr.P.C. wilt have to be filed before the Magistrate who has passed the first order of maintenance. Similar view has been taken by Andhra Pradesh High Court in the case of G. Balraj v. Smt. Mallamma (1)

14. Thus, the impugned judgment passed by the learned additional Sessions Judge No. 2 by which he enhanced the maintenance amount awarded to the respondent becomes perse illegal and cannot be sustained and is liable to be set aside.

15. Since the impugned judgment dated 14.6.2000 has been declared illegal therefore, second question is not to be answered by this Court. However for academic point of view, it can be answered here by observing that alteration of allowance can be made from the date of order and not from the date of application. The similar view has been taken by Andhra Pradesh High Court in the case of Pilli Venkanna v. Pilli Nookamma (2).

For the reasons mentioned above, this revision petition is allowed and the judgment dated 14.6.2000 passed by the learned Additional Sessions Judge No. 2, Chittorgarh is set aside.

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