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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