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2002 DIGILAW 601 (RAJ)

Budh Ram v. Sudesh Bala

2002-03-18

SUNIL KUMAR GARG

body2002
Case Law Referred 1. G. Balraj vs. Smt. Mallamma (1984 Cr.L.J. 1170) 2. Raj Kumar vs. Smt. Shanta Bai (S.B. Criminal Revision Petition No. 576/2001) Mahesh Bora, for Petitioner G.R. Goyal, for Respondent Honble GARG, J.–This revision petition has been filed by the petitioner against the order dated 23.9.1999 passed by the learned Additional Sessions Judge No.2, Sri Ganganagar in Criminal Revision No. 53/94 by which the he allowed the revision petition filed by the respondents and enhanced the maintenance allowance. (2). The facts giving rise to this revision petition are as follows:- i) Through order dated 26.10.94, the application of the respondents filed under Section 125 Cr.P.C. was accepted by the learned Judicial Magistrate, First Class No. 2, Sri Ganganagar and the learned Judicial Magistrate awarded maintenance to respondents in total Rs. 850/- (Rs. 300/- per month to respondent No. 1 and Rs. 200/, 200/ and 150/- per month to respondents No. 2 to 4, respectively. (3). Aggrieved from that order, the respondents filed a revision petition before the learned Additional Sessions Judge and prayed that the amount which was granted by the learned Judicial Magistrate No. 2 was not sufficient and the maintenance allowance may be increased. (4). The learned Additional Sessions Judge No. 2, Sri Ganganagar vide judgment dated 23.9.99 accepted the revision petition and enhanced the maintenance allowance to Rs. 2000/- from Rs. 850/- each to the respondents). (5). Aggrieved from this judgment, this revision petition has been preferred. (6). In this revision petition, the only contention raised by the learned counsel for the petitioner is that the Additional Sessions Judge has no power to enhance the maintenance as this power lies with the Magistrate who passed earlier order. (7). I have heard both. (8). For alteration in allowance, Sec. 127 Cr.P.C. may be referred to. (9). Section 127 Cr.P.C. makes a provision (1) for alteration of allowance on the proof of change in the circumstances of the parties, (2) for cancellation or variation of allowances in consequence of a decision of a competent civil Court, (3) for cancellation of allowances ordered after divorce and (4) for taking into consideration the amount of allowance ordered under Sec. 125 in a Civil Court. (10). Thus, in the above circumstances alteration of allowance can be made. (11). The next question that arises for consideration is which Court is competent to enhance the maintenance allowance. (12). (10). Thus, in the above circumstances alteration of allowance can be made. (11). The next question that arises for consideration is which Court is competent to enhance the maintenance allowance. (12). A reading of Section 126 Cr.P.C. would show that it provides for procedure and the jurisdiction of the Court where in application under Sec. 125 Cr.P.C. could be filed. Section 127 Cr.P.C. which is for alteration in the amount is completely different and for this Section 126, Cr.P.C. has no application. Sec. 127(1) Cr.P.C. provides a proof of 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 the case may be, the Magistrate may make such alteration in the allowance as he thinks fit. The words ``the Magistrate would mean the Magistrate who had passed the first order of maintenance because Court is strengthened in this interpretation by the fact that Sec. 128 Cr.P.C. which is the section for enforcement order of maintenance specifically provides that such petition under Sec. 125 Cr.P.C. may be presented before ``any Magistrate. Therefore, in these circumstances. the petition under Sec. 127, Cr.P.C. will have to be filed before the Magistrate who has passed the first order of maintenance. Similar view has been taken by Andhra Pradesh High Court in the case of G. Balraj vs. Smt. Mallamma (1). (13). This Court in Raj Kumar vs. Smt. Shanta Bai (2), decided on 14.2.2002 has also taken the similar view. Since in the present case, maintenance has been enhanced by the learned Additional Sessions Judge therefore the judgment becomes without jurisdiction and the same cannot be sustained and this revision petition is liable to be allowed. For the reasons mentioned above, this revision petition is allowed and the judgment dated 23.9.99 passed by the learned Additional Sessions Judge No. 2, Sri Ganganagar is set aside.