Ramaji vs Shanti Bai

S.C. Sharma, J. - Mr. M.M. Bohra, learned counsel for the applicant,

Ms. Mamta Shandilya, learned counsel for the respondents-State.

The present petition has been filed against the order dated 12-5-2014 passed by learned Judicial Magistrate First Class, Petlawad by which an application preferred under section 127 of the Criminal Procedure Code has been allowed.

Facts in short reveals that initially the wife was granted maintenance to the tune of Rs. 800/- by an order dated 17-1-2003. Thereafter an application was preferred under section 127 for alteration in allowance and the learned Judicial Magistrate First Class, Petlawad has passed an order on 12-5-2014 enhancing the amount to the tune of Rs. 3000/- per month. Thereafter, Revision was preferred by the petitioner and by order dated 28-11-2014 Revisional Court in Cr.R No. 50/2014 and Cr.R No. 61/2014 has upheld the order passed by the J.M.F.C. Petlawad granting maintenance to the tune of Rs. 800/-. However, the amount has been awarded from the date the application was preferred under section 127 of the Code of Criminal Procedure, 1973.

Learned counsel for the appellant Mr. Bohra has vehemently argued before this Court that the alteration in allowance can only be done from the date of the order and not from the date of the application. Meaning thereby, the amount can be enhanced only with effect from 12-05-2014. To bolster his submissions he has placed reliance upon a judgment passed in the case of <&Atilde;�><&Atilde;�>Pilli Venkanna v. Pilli Nookdlamma and another reported in 1998 Cri.LJ. 1922.

On the other hand, learned counsel for the respondent has argued before this Court that the Revisional Court was justified in granting maintenance with effect from 11-10-2011 i.e. the date on which an application was preferred under section 127 of Criminal Procedure Code, 1973.

Heard learned counsel for the parties and perused the record.

The relevant statutory provisions governing the field as contained under section 127 of the Criminal Procedure Code, 1973 reads as under :-

"<&Atilde;�>127. Alteration in allowance. - (1) On proof of a 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 case may be, the Magistrate may make such alteration in the allowance he thinks fit:

Provided that if he increases the allowance, the monthly rate of five hundred rupees in the whole shall not be exceeded.

(2) Where it appears to the Magistrate that, in consequence of any decision of a competent Civil Court, any order made under section, 125 should be cancelled or varied, he shall cancel the order or, as the case may be, vary the same accordingly.

(3) Where any order has been made under section 125 in favour of a woman who has been divorced by, or has obtained a divorce from, her husband, the Magistrate shall, if he is satisfied that -

(a) the woman has, after the date of such divorce, remarried, cancel such order as from the date of her remarriage;

(b) the woman has been divorced by her husband and that she has received, whether before or after the date of the said order, the whole of the sum which, under any customary or personal law applicable to the parties, was payable on such divorce, cancel such order, -

(i) in the case where, such sum was paid before such order, from the date on which such order was made,

(ii) in any other case, from the date of expiry of the period, if any, for which maintenance has been actually paid by the husband to the woman;

(c) the woman has obtained a divorce from her husband and that she had voluntarily surrendered her rights to maintenance after her divorce, cancel the order from the date thereof.

(4) At the time of making any decree for the recovery of any maintenance or dowry by any person, to whom a monthly allowance has been ordered to be paid under section 125, the Civil Court shall take into account the sum which has been paid to, or recovered by, such personal monthly allowance in pursuance of the said order."

The Andhra Pradesh High Court has considered the issue of alteration of maintenance allowance with respect to the date of the application and the Andta Pradesh High Court in the case of <&Atilde;�><&Atilde;�>Pilli Venkanna v. Pilli Nookalamma (supra) in paragraph 4 held as under :-

"4. At the time of making any decree for the recovery of any maintenance of dowry by any person to whom a monthly allowance has been ordered to be paid under Section 125. The Civil Court shall take into account the sum which has been paid to, or recovered by, such person as monthly allowance in pursuance of the said order. This section, on its plain reading, furnishes the grounds on which the Court passing an Order Under section 125. Criminal Procedure Code can modify that order and enhance the maintenance on proof of a change in the circumstances, but such an order for alteration of allowance can be made only from the date of order passed under this Section and not from the date of application seeking alteration. Under sub-clause (2) to section 125, Criminal Procedure Code the Legislature has left it to the discretion of the Magistrate to award maintenance from the date of application for maintenance though normally it shall be payable from the date of the order in the petition, But under Section 127. Criminal Procedure Code no such discretion is left to the Magistrate to pass such order in the application seeking alteration of enhanced maintenance, from the date of filing of that application, since the Legislature itself did not provide under section 127, Criminal Procedure Code that the Magistrate could date back the order or alteration to the date of application. Hence it is so open to the Magistrate or the Revisional Court to exercise such, jurisdiction and enhance the compensation from the date of filing of that application. The Courts have to act within the strict limitations set out for the exercise of its jurisdiction and they cannot overstep the same on an equitable grounds. I have been fortified in my opinion by the decision the High Court of Jammu and Kashmir in <&Atilde;�><&Atilde;�>Bansilal v. Pushpa Devi, 1982 Cri.LJ. 1081."

This Court has carefully gone through the section 127 of the Code Criminal Procedure, 1973. The enhancement order was passed on 12-5-2014 and, therefore, wife shall be entitled for enhancement with effect from 12-5-2014.

Resultantly, the petition preferred under section 482 of the Criminal Procedure Code is partly allowed. The order dated 28-11-2014 is modified to the extent as stated above and the wife shall be entitled for the enhanced maintenance allowance to the tune of Rs. 3000/-, with effect from 12-05-2014.

The petitioner has deposited a sum of Rs. 47,300/- on account of interim order passed by this Court. Thus, the aforesaid amount shall be adjusted toward the maintenance amount granted to the wife.

Certified copy as per rules.