Saturday 2 April 2022

Whether Magistrate can enhance maintenance granted to wife under Domestic violence Act U/S 127 of CRPC?

 The marital life between the couple appears to have turned

sore, pursuant to which, among other proceedings the

respondent-wife files a petition in Crl.Misc.No.2/2009

invoking Section 12 of the Protection of Women from

Domestic Violence Act, 2005 (‘Act’ for short). The learned

Magistrate before whom the miscellaneous case was filed

under the Act while entertaining the case awards a

maintenance of Rs.1,000/-. After invoking the provisions of

the Act, the respondent-wife files a petition in

Crl.Misc.No.141/2015 invoking Section 127 of the Cr.P.C. for

enhancement of the maintenance amount awarded under the

Act. The petition is allowed and the respondent-wife is

awarded maintenance of Rs.5,000/- from the date of the

order.

Section 125 of the Cr.P.C. enables the wife to seek

maintenance at the hands of the husband inter alia.

Invoking this provision, the learned Magistrate can award

maintenance. Section 127 of the Cr.P.C. deals with

alteration in allowance. A maintenance that is awarded

under Section 125 of the Cr.P.C. can be varied in an

application filed under Section 127 of the Cr.P.C. What is

sine qua non is that an order of maintenance should precede

a petition under Section 127 of the Cr.P.C., failing which, a

petition under Section 127 of the Cr.P.C. seeking

enhancement of maintenance is not available.

11. It is an undisputed fact that the respondent-wife

invoked the provisions of the Act in which maintenance was

awarded. It is also an admitted fact that there is no

proceeding initiated by the respondent-wife invoking Section

125 of the Cr.P.C. Therefore, without there being any

determination of maintenance under Section 125 of the

Cr.P.C., petition under Section 127 of the Cr.P.C. is not

maintainable.

IN THE HIGH COURT OF KARNATAKA

DHARWAD BENCH

CRIMINAL PETITION No.101378/2019

Shivanand S/O Karabasappa Gurannavar v. Basavva @ Laxmi W/O Shivanand Gurannavar

BEFORE

THE HON’BLE MR. JUSTICE M.NAGAPRASANNA

DATED THIS THE 17th DAY OF FEBRUARY 2022

The petitioner-husband is before this Court praying to

quash the order dated 12.06.2019 passed in

Crl.R.P.No.14/2019 by the learned Sessions Judge, Dharwad

confirming the order passed by the learned Magistrate in

Crl.Misc.141/2015 dated 15.10.2018.

2. Heard Miss.Joshna P Dhanave, learned counsel for

the petitioner. Respondent is served and un-represented.

3. Sans details, facts in brief germane for a resolution

of the dispute in the lis are as follows:

The petitioner and the respondent are husband and

wife. Marriage between them takes place on 13.04.2001.

The marital life between the couple appears to have turned

sore, pursuant to which, among other proceedings the

respondent-wife files a petition in Crl.Misc.No.2/2009

invoking Section 12 of the Protection of Women from

Domestic Violence Act, 2005 (‘Act’ for short). The learned

Magistrate before whom the miscellaneous case was filed

under the Act while entertaining the case awards a

maintenance of Rs.1,000/-. After invoking the provisions of

the Act, the respondent-wife files a petition in

Crl.Misc.No.141/2015 invoking Section 127 of the Cr.P.C. for

enhancement of the maintenance amount awarded under the

Act. The petition is allowed and the respondent-wife is

awarded maintenance of Rs.5,000/- from the date of the

order.

4. Feeling aggrieved by the order passed in

Crl.Misc.No.141/2015, the petitioner-husband files Criminal

Revision Petition in Crl.R.P.No.14/2019 invoking Section 397

of the Cr.P.C. The learned Sessions Judge dismisses the said

Revision Petition by his order dated 12.06.2019 confirming

the order passed by the learned Magistrate enhancing

maintenance to the wife from Rs.1,000/- to Rs.5,000/-. It is

these two orders that are called in question in the subject

petition.

5. The learned counsel appearing for the petitionerhusband

Miss. Joshan P Dhanave would vehemently argue

and contend that the respondent once having invoked the

provisions of the Act could not have filed an application

seeking enhancement under Section 127 of the Cr.P.C. The

order passed by the learned Magistrate as affirmed by the

learned Sessions Judge are orders without jurisdiction. The

learned counsel would seek quashment of the said orders.

6. The respondent-wife is served and remains

unrepresented.

7. I have given my anxious consideration to the

submissions made by the learned counsel appearing for the

petitioner and perused the material on record. In

furtherance whereof, the only issue that falls for my

consideration is, “Whether the maintenance awarded

under the Domestic Violence Act can be sought to be

enhanced under the Cr.P.C.?”


8. The afore-narrated facts are not in dispute. The

respondent-wife invokes Section 12 of the Act seeking reliefs

that are available under Section 12. Section 12 reads as

follows:

“12. Application to Magistrate.—(1) An aggrieved

person or a Protection Officer or any other person on

behalf of the aggrieved person may present an application

to the Magistrate seeking one or more reliefs under this

Act:

Provided that before passing any order on such application,

the Magistrate shall take into consideration any domestic

incident report received by him from the Protection Officer or the

service provider.

(2) The relief sought for under sub-section (1) may

include a relief for issuance of an order for payment of

compensation or damages without prejudice to the right

of such person to institute a suit for compensation or

damages for the injuries caused by the acts of domestic

violence committed by the respondent:

Provided that where a decree for any amount as

compensation or damages has been passed by any court in

favour of the aggrieved person, the amount, if any, paid or

payable in pursuance of the order made by the Magistrate under

this Act shall be set off against the amount payable under such

decree and the decree shall, notwithstanding anything contained

in the Code of Civil Procedure, 1908 (5 of 1908), or any other law

for the time being in force, be executable for the balance amount,

if any, left after such set off.

(3) Every application under sub-section (1) shall be in such

form and contain such particulars as may be prescribed or as

nearly as possible thereto.

(4) The Magistrate shall fix the first date of hearing, which

shall not ordinarily be beyond three days from the date of receipt

of the application by the court.

(5) The Magistrate shall endeavour to dispose of every

application made under sub-section (1) within a period of sixty

days from the date of its first hearing.”

The relief that is granted by the learned Magistrate is

awarding of maintenance of Rs.1,000/- to be paid by the

husband-petitioner to the respondent-wife. Maintenance

under the said order was all along being paid.

9. Things standing thus, the respondent-wife files a

petition in Crl.Misc.141/2015 invoking Section 127 of the

Cr.P.C. seeking enhancement of an amount awarded under

the Act. The learned Magistrate allows the petition and

enhances the maintenance from Rs.1,000/- to Rs.5,000/-.

The learned Magistrate enhances the maintenance amount

awarded under the Act in a petition filed for enhancement

under the Cr.P.C. The Sessions Judge, in revision, affirms

the view taken by the learned Magistrate.

10. In order to resolve the issue, it is germane to notice

Sections 125 and 127 of the Cr.P.C. and they read as follows:

“125. Order for maintenance of wives, children and

parents.—(1) If any person having sufficient means

neglects or refuses to maintain—

(a) his wife, unable to maintain herself, or

(b) his legitimate or illegitimate minor child,

whether married or not, unable to maintain itself, or

(c) his legitimate or illegitimate child (not being a

married daughter) who has attained majority, where

such child is, by reason of any physical or mental

abnormality or injury unable to maintain itself, or

(d) his father or mother, unable to maintain himself

or herself,

a Magistrate of the first class may, upon proof of such neglect

or refusal, order such person to make a monthly allowance

for the maintenance of his wife or such child, father or

mother, at such monthly rate 66[* * *], as such Magistrate

thinks fit, and to pay the same to such person as the

Magistrate may from time to time direct:

Provided that the Magistrate may order the father of a

minor female child referred to in clause (b) to make such

allowance, until she attains her majority, if the Magistrate is

satisfied that the husband of such minor female child, if

married, is not possessed of sufficient means:

67[Provided further that the Magistrate may, during the

pendency of the proceeding regarding monthly allowance for

the maintenance under this sub-section, order such person to

make a monthly allowance for the interim maintenance of his

wife or such child, father or mother, and the expenses of such

proceeding which the Magistrate considers reasonable, and

to pay the same to such person as the Magistrate may from

time to time direct:

Provided also that an application for the monthly

allowance for the interim maintenance and expenses for

proceeding under the second proviso shall, as far as possible,

be disposed of within sixty days from the date of the service

of notice of the application to such person.]

Explanation.—For the purposes of this Chapter,—

(a) “minor” means a person who, under the provisions of

the Indian Majority Act, 1875 (9 of 1875), is deemed not to

have attained his majority;

(b) “wife” includes a woman who has been divorced by, or

has obtained a divorce from, her husband and has not

remarried.

68[(2) Any such allowance for the maintenance or interim

maintenance and expenses for proceeding shall be payable

from the date of the order, or, if so ordered, from the date of

the application for maintenance or interim maintenance and

expenses of proceeding, as the case may be.]

(3) If any person so ordered fails without sufficient cause

to comply with the order, any such Magistrate may, for

every breach of the order, issue a warrant for levying the

amount due in the manner provided for levying fines, and

may sentence such person, for the whole or any part of each

month's 69[allowance for the maintenance or the interim

maintenance and expenses of proceeding, as the case may

be,] remaining unpaid after the execution of the warrant, to

imprisonment for a term which may extend to one month or

until payment if sooner made:

Provided that no warrant shall be issued for the recovery

of any amount due under this section unless application be

made to the Court to levy such amount within a period of one

year from the date on which it became due:

Provided further that if such person offers to maintain his

wife on condition of her living with him, and she refuses to

live with him, such Magistrate may consider any grounds of

refusal stated by her, and may make an order under this

section notwithstanding such offer, if he is satisfied that there

is just ground for so doing.

Explanation.—If a husband has contracted marriage with

another woman or keeps a mistress, it shall be considered to

be just ground for his wife's refusal to live with him.

(4) No wife shall be entitled to receive an 70[allowance for

the maintenance or the interim maintenance and expenses of

proceeding, as the case may be,] from her husband under

this section if she is living in adultery, or if, without any

sufficient reason, she refuses to live with her husband, or if

they are living separately by mutual consent.

(5) On proof that any wife in whose favour an order has

been made under this section is living in adultery, or that

without sufficient reason she refuses to live with her

husband, or that they are living separately by mutual

consent, the Magistrate shall cancel the order.

127. Alteration in allowance.—73[(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.]

(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 74[maintenance or interim maintenance, as the case

may be,] 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 75[monthly allowance for the maintenance and interim

maintenance or any of them 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 76[as monthly allowance for the maintenance and

interim maintenance or any of them, as the case may be, in

pursuance of] the said order.”

Section 125 of the Cr.P.C. enables the wife to seek

maintenance at the hands of the husband inter alia.

Invoking this provision, the learned Magistrate can award

maintenance. Section 127 of the Cr.P.C. deals with

alteration in allowance. A maintenance that is awarded

under Section 125 of the Cr.P.C. can be varied in an

application filed under Section 127 of the Cr.P.C. What is

sine qua non is that an order of maintenance should precede

a petition under Section 127 of the Cr.P.C., failing which, a

petition under Section 127 of the Cr.P.C. seeking

enhancement of maintenance is not available.

11. It is an undisputed fact that the respondent-wife

invoked the provisions of the Act in which maintenance was

awarded. It is also an admitted fact that there is no

proceeding initiated by the respondent-wife invoking Section

125 of the Cr.P.C. Therefore, without there being any

determination of maintenance under Section 125 of the

Cr.P.C., petition under Section 127 of the Cr.P.C. is not

maintainable.

12. The language employed in Section 127 of the

Cr.P.C. is unequivocal as on a proof of change in the

circumstances of any person receiving allowance under

Section 125 of Cr.P.C. can maintain a petition under Section

127 of the Cr.P.C. A proceeding under Section 125 of the

Cr.P.C. therefore should precede a proceeding under Section

127 of the Cr.P.C.

13. The fact that provisions of Act was invoked for

grant of maintenance and provisions of Cr.P.C. are invoked

seeking enhancement of maintenance cannot be

countenanced in law. Therefore, the order passed by the

learned Magistrate enhancing maintenance under Section

127 of the Cr.P.C. was without jurisdiction and a nullity in

law. The foundation being a nullity in law, a super structure

to it affirming the order of the learned Magistrate, by the

learned Sessions Judge will have to follow suit – is to be

declared a nullity in law.

14. Therefore, on a coalesce of the aforesaid provisions

that falls for consideration in the case at hand and the

undisputed facts, would lead to an unmistakable inference

that both the orders of the learned Magistrate and the

learned Sessions Judge are to be obliterated.

15. For the aforesaid reasons, the following:

ORDER

(i) The Criminal Petition is allowed.

(ii) The order passed by the learned Magistrate in

Crl.Misc.141/2015 dated 15.10.2018 and the

order dated 12.06.2019 passed by the learned

Sessions Judge in Crl.R.P.No.14/2019 stand

quashed.

(iii) Quashment of the aforesaid orders will not

preclude the respondent-wife in initiating any

such proceeding in a manner known to law.

Sd/-

JUDGE


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