Krishna Kumar Dhuri vs Santoshi Bai

Sanjay K. Agrawal, J.—This order shall govern disposal of above mentioned both the revisions as common questions of facts and law are involved and shall stand disposed of by this common order. That, non-applicant Santoshi Dhuri is the wife of applicant-Krishna Kumar Dhuri. In an application filed for maintenance under Section 125, Cr.P.C., on the basis of compromise entered into between the parties, the Family Court, by order dated 29.03.2007, granted Rs. 1000/- per month as maintenance allowance to the wife/non-applicant. The said amount was enhanced from Rs. 1000/- to Rs. 1500/- in exercise of power under Section 127, Cr.P.C. by order dated 29.09.2010. Thereafter, the present applicant-Husband filed an application under Section 127, Cr.P.C. for setting aside the order of maintenance on the ground that non-applicant has refused to accept sixteen cheques sent to her against the amount of maintenance for a period commencing from 21.09.2008 to 01.12.2010 amounting to Rs. 19,500/-, and claimed the said refusal to accept the cheque against the maintenance granted to her amounts to "change in circumstances" within the meaning of sub-section (1) of Section 127, Cr.P.C., and as such, order granting maintenance to the wife/non-applicant on 29.03.2007 be set aside.

The said application was opposed by the wife/non-applicant stating inter alia that the applicant has failed to demonstrate "change in circumstances" within the meaning of sub-section (1) of Section 127 of the Code of Criminal Procedure, therefore the application so filed by the applicant/Husband deserves to be rejected.

The family court, by order impugned, partly allowed the application holding that non-applicant/wife has deliberately refused to accept the maintenance amount and thereby, lost her right to get maintenance allowance to the extent of amount sent through cheques, i.e. Rs. 19,100/-, but declined to set aside the order granting maintenance and thus partly allowed and partly rejected the application under sub-section (1) of Section 127 Cr.P.C.

Criminal Revision No. 84/2012 has been filed by the applicant-Husband questioning the part of order by which his application for setting aside maintenance order in toto has been rejected, whereas Criminal Revision No. 163/2012 has been filed by the non-applicant-Wife, questioning the part of order by which it has been held that she is not entitled for the maintenance amount of Rs. 19,100/- sent through cheque and refused by her to accept. Above-stated both the revisions have been clubbed together and placed for consideration, this is how both the revisions have come up for hearing.

Shri Somnath Verma, learned counsel appearing for the applicant-Husband would submit that since the cheques sent against the amount of maintenance have been deliberately refused to accept by the non-applicant/wife, which would show she is able to maintain herself and such an act of his "Wife" would fall within the meaning of "change of circumstances" as enumerated under sub-section (1) Section 127, Cr.P.C., and therefore, the order granting maintenance to the non-applicant/wife deserves to be set aside in toto.

Shri Sameer Singh, learned counsel appearing for the non-applicant-wife would submit that the non-applicant has never refused to accept the cheques sent to her deliberately, apart from the fact there is no reason to refuse the amount of maintenance and would submit that the applicant has no ground whatsoever to seek annulling of order granting maintenance and the order refusing part of the maintenance amount be set aside while maintaining the other part of impugned order.

I have heard the counsel appearing for the parties and perused the order impugned including records carefully.

Section 127(1), Cr.P.C. provides as under-

"127. Alteration in allowance (1). On proof of a change in the circumstances of any person, receiving under Section 125 a monthly allowance for the maintenance or interim maintenance, or ordered under the same section to pay a monthly allowance for the maintenance, or interim maintenance, to his wife, child, father or mother, as the case may be, the Magistrate may make such alteration, as he thinks fit, in the allowance for the maintenance or the interim maintenance, as the case may be."

A close perusal of sub-section (1) of Section 127, Cr.P.C. would show that Magistrate has power to alter or modify the order of maintenance on account of change in circumstances on the party paying or receiving the maintenance. That "change in the circumstances" means change in the existence of circumstances and not change in proof of circumstances. The expression "alteration in the allowance" clearly refers to the change in the existence of circumstances necessitating increase or decrease in the amount of allowance. Change in circumstance covers change in primary circumstances as well as changes in other circumstances, such as compromise between the parties or the change of financial circumstances where wife has become an earning member and is able to maintain herself, which has to be established by leading appropriate legal evidence. In the instant case, the applicant has approached the family court merely by contending inter alia that non-applicant-wife has declined to accept the envelop containing Cheques of maintenance amount sent to her is an "change in circumstances", but the fact is otherwise, after grant of maintenance there is no change in existence of the circumstances necessitating filing of the application under sub-section (1) of Section 127, Cr.P.C. as still the-wife/non-applicant is unable to maintain herself and no other fact has been brought on record and proved which disentitles her for the maintenance already granted by the Family Court.

In a decision reported in Vimala (K.) Vs. Veeraswamy (K.), , their Lordships of the Supreme Court while considering the object and purpose of Section 125 of the Code have held that object is to prevent vagrancy and destitution, it provides a speedy remedy for the supply of food, clothing and shelter to the deserted wife.

Thereafter in Kirtikant D. Vadodaria Vs. State of Gujarat and Another, , while considering the main purpose of Section 125, Cr.P.C., the Supreme Court held as under:-

"While dealing with the ambit and scope of the provision contained in Section 125 of the Code, it has to be borne in mind that the dominant and primary object is to give social justice to the woman, child and infirm parents etc. and to prevent destitution and vagrancy by compelling those who can support those who are unable to support themselves but have a moral claim for support. The provisions in Section 125 provide a speedy remedy to those women, children and destitute parents who are in distress. The provisions in Section 125 are intended to achieve this special purpose. The dominant purpose behind the benevolent provisions contained in Section 125 clearly is that the wife, child and parents should not be left in a helpless state of distress, destitution and starvation".

Their Lordships of the Supreme Court in Chaturbhuj Vs. Sita Bai, , again reiterated the legal position and held as under:-

"Section 125, Cr.P.C. is, measure of social justice and is specially enacted to protect women and, a children and as noted by this Court in Captain Ramesh Chander Kaushal Vs. Mrs. Veena Kaushal and Others, falls within constitutional sweep of Article 15(3) reinforced by Article 39 of the Constitution of India. It is meant to achieve a social purpose. The object is to prevent vagrancy and destitution. It provides a speedy remedy for the supply of food, clothing and shelter to the deserted wife. It gives effect to fundamental rights and natural duties of a man to maintain his wife, children and parents when they are unable to maintain themselves. The aforesaid position was highlighted in Savitaben Somabhai Bhatiya Vs. State of Gujarat and Others, .

Thus, the Family Court has partly annulled the order granting maintenance without being alive to the objects and reasons of the Act and provisions contained in Section 125, Cr.P.C. as highlighted by the Supreme Court in abovestated cases even in absence of "change of circumstances" as provided in sub-section (1) of Section 127, Cr.P.C. and deprived the non-applicant/wife of her statutory right of maintenance without any valid and sufficient cause.

Such a statutory right of the non-applicant/wife validly granted by a family court cannot be annulled by that court merely on the ground of alleged non-acceptance of cheques by the wife. In the considered opinion of this Court, by no stretch of imagination such an act can be said to be a "change in circumstances" within the meaning of sub-section (1) of Section 127, Cr.P.C. requiring interference in exercise of jurisdiction under sub-section (1) of Section 127, Cr.P.C. to the order granting maintenance to non-applicant-wife.

Accordingly, part of order of Family Court, holding that the non-applicant is not entitled for the amount of maintenance Rs. 19,500/- is not sustainable in law, and as such that part of order impugned is set aside and in consequence thereof, the application filed by the applicant/Husband under sub-section (1) of Section 127, Cr.P.C. stands dismissed and it is held that non-applicant/wife is entitled for the aforesaid amount. It is directed that the applicant will pay the said amount by account payee demand draft drawn in her favour and be sent to her by registered post at the address given in this revision petition, within a period of two months from today.

Resultantly, Criminal Revision No. 84/2012 filed by the applicant/Husband is dismissed and Criminal Revision No. 163/2012 filed by the non-applicant/wife is allowed. No order as to cost(s). Copy of this order be placed on record of Cr.R. No. 1S372 012.