Whether son can seek enhancement of maintenance U/S 127 of CRPC if he is not entitled to get maintenance?

 It is, thus, clear that the provisions of Section 127 are not independent as they provide for a consequential order upon proof of a change in the circumstances of any person receiving maintenance or directed to pay maintenance u/s. 125. The change in the circumstances of the concerned person, therefore, has to be judged in the light of the provisions of Section 125 and a Court, considering an application for alteration u/s. 127, cannot say goby to the provisions of Section 125, which are basic provisions for grant of maintenance to the person concerned.

 In Jagir Singh v. Ranbhir Singh & Ors. MANU/SC/0097/1978 : (1979) 1 SCC 560, considering the scope of Section 484(2)(b) of the old code of 1898 and Sections 125 and 127 of the Code of 1973, it was held that "Section 125 of the new Code corresponds to Section 488 of the old Code notwithstanding the fact that under the new Code a child who has attained majority and who does not suffer from any infirmity is not entitled to be maintained by the father. Once an order under Section 488, Cr.P.C., 1898, is deemed to be under Section 125, Cr.P.C., 1973 it will also be subject to Section 127 of the new Code. The change in the law in respect of maintenance, as much as other factual change of circumstances, are circumstances to be considered under Section 127".

13. It is, therefore, clear that provisions of Section 127 are always subject to the provisions of Section 125 and if a person ceases to be entitled to receive maintenance u/s. 125, he cannot seek an order of enhancement u/s. 127.

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

Special Criminal Application (Maintenance) No. 5202 of 2015

Decided On: 18.03.2016

Nitaben Dineshkumar Oza Vs. Dineshkumar Ishwarlal Oza and Ors.

Hon'ble Judges/Coram:

J.B. Pardiwala, J.

Citation: AIR 2017 Guj 1

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Whether issue of suppression of first marriage can be raised in proceeding U/S 127 of CRPC?

 There is yet another ground of challenge raised by the petitioner and it
is regarding his marriage with the respondent being unlawful, as the
respondent suppressed the fact at the time of her marriage with the applicant
that she was already married and her marriage with her first husband was in
subsistence. This ground would not be available under section 27(1) of Cr.P.C
and in order to resort to this ground, the petitioner would be required to seek
necessary orders from the competent court regarding cancellation of his
marriage and then a resort can be made to the provisions contained in Section
127(2) of Cr.P.C. In fact the learned Magistrate has already found no merit in
this ground and this finding of the learned Magistrate now has attained
finality after the appeal against such finding came to be dismissed.
IN THE HIGH COURT OF BOMBAY AT GOA
CRIMINAL WRIT PETITION NO.133 OF 2015
Shri Akbar Hussain Khan,

V 
Smt. Saira Khan,

 CORAM: S. B. SHUKRE, J.
 DATE: 28TH JANUARY, 2016.
Citation: 2017 ALLMR(CRI)1058

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Whether divorced wife who has voluntarily surrendered right to claim maintenaince can claim maintenaince u/s 127 of CRPC on proof of change in circumstances?

Under Section 127 of the Code, even though a divorced women had voluntarily surrendered to claim maintenance from her divorced husband on proof of change in the circumstances, she can maintain a petition under Section 127 of the Code, and as long as the divorced wife has not been remarried and or not living in adultery, husband cannot shirk from his responsibility to maintain a divorced wife. Section 127 can be pressed into service only for cancellation of maintenance ordered in favour of a wife under Section 125 if she had voluntarily surrendered her right to claim maintenance from the divorced husband while obtaining a divorce. But the same cannot be made applicable to a divorced woman who is claiming maintenance considering the changed circumstances in her life.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT NAGPUR, NAGPUR.

CRIMINAL APPLICATION NO. 1588 /2010

 Dr. Shahid Rizwan Khan 

v e r s u s

 Dr. Smt. Masoor 

CORAM: A.P.BHANGALE , J.

DATE OF PRONOUNCEMENT: 7/7/ 2011

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