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2005 DIGILAW 1007 (PAT)

Sharda Devi v. State Of Bihar

2005-11-25

NAVIN SINHA

body2005
Judgment Navin Sinha, J. 1. Heard learned Counsel for the petitioner, learned Counsel for the State and learned Counsel appearing on behalf of the opposite party No. 2. 2. The petitioner is aggrieved by the order dated 5.6.2003 by which her claim for enhancement of the maintenance originally granted in exercise of powers under sec. 125, Cr. P.C has been declined. The claim for such enhancement would have been prepared on 4.2.2000. 3. Learned Counsel for the petitioner submitted that the Court would have erred in the impugned order by refusing to exercise jurisdiction. The petitioner would have preferred an application for enhancement of the maintenance allowance of Rs. 300 granted by order dated 31.1.1997. The fact that her claim against award of the aforesaid amount would have been rejected in Criminal Revision on 6.4.1999 as also by the Court in Cr. WJC No. 415 of 1999 on 28.10.1999 directing her to seek her remedies for enhancement before the Magistrate concerned, would not affect her statutory right to seek enhancement under Section, 127, Cr. P.C. The application for enhancement having been preferred on 4.2.2000, was an independent claim, de hors the rejection of her plea for enhancement of the maintenance granted on 31.1.1997. 4. Learned Counsel for the opposite party No. 2 sought to sustain the order to submit that both the Revisional Court and the High Court having found no irregularity or illegality in award of the maintenance of Rs. 300, there was no occasion for the petitioner to seek a re-consideration of the same in the form of an application for enhancement of the maintenance amount. 5. Having considered the facts and circumstances of the case, this Court would uphold the submission made on behalf of the petitioner. 6. The right to claim maintenance would be provided for in sec. 125, Cr. P.C. Learned Counsel for the petitioner rightly emphasises that sec. 125(1)(d) would vest the power in the Magistrate to direct payment of maintenance as he may deem fit from time to time. This would find its implementation in Section 127 of the Code of Criminal Procedure, which would vest a statutory right to claim enhancement of the original amount awarded u/s. 125 subject to the person concerned satisfying the Court of a chance in circumstances from the original order passed in sec. 125, Cr. This would find its implementation in Section 127 of the Code of Criminal Procedure, which would vest a statutory right to claim enhancement of the original amount awarded u/s. 125 subject to the person concerned satisfying the Court of a chance in circumstances from the original order passed in sec. 125, Cr. P.C. This Court would, therefore, find that claim for enhancement of maintenance is a statutory right to be considered in the manner provided. The fact that an earlier challenge to the award of maintenance of a certain amount would have been unsuccessful would not amount to the denial of the person concerned to exercise his or her statutory right under Sec. 127 of the Code of Criminal Procedure. 7. Learned Counsel for the petitioner would rightly submit that sec. 25(2) of the Hindu Marriage Act would be in puri materia with sec. 127(1) of the Code of Criminal Procedure. This Court would consider it appropriate to set out the same herein below: 25(2).If the Court is satisfied that there is a change in the circumstances of either party at any time after it has made an order under Sub-sec. (1), it may at the instance of either party, vary, modify or rescind any such order in such manner as the Court may deem Just. 27. Alteration in allowance.--(1) On proof of a change in the circumstances of any person, receiving, u/s. 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. 8. It would, thus, be significant that sec. 127 of the Code would vest of statutory right to claim enhancement of maintenance provided the Court was satisfied that there was a change in the circumstances subject to the aforesaid condition, the right would be absolute and unlimited in its duration. Learned Counsel has rightly relied upon a judgment of the Allahabad High Court reported in AIR 1991 Alld. 255, Rum Shunker Rastogi V/s. Smt. Vinay Rastogi, considering a similar plea u/s. 25(2) of the Hindu Marriage Act. This Court would only consider it appropriate to quote paragraph 10 of the aforesaid judgment. 10. Neither the provisions of sec. Learned Counsel has rightly relied upon a judgment of the Allahabad High Court reported in AIR 1991 Alld. 255, Rum Shunker Rastogi V/s. Smt. Vinay Rastogi, considering a similar plea u/s. 25(2) of the Hindu Marriage Act. This Court would only consider it appropriate to quote paragraph 10 of the aforesaid judgment. 10. Neither the provisions of sec. 11 of the Code of Civil Procedure nor the principles of res judicata will bar a suit for maintenance on an enhanced rate for a different period under altered circumstances even though on an earlier occasion a maintenance decree had been passed and a certain rate of maintenance had been fixed thereunder. The reason being that such a decree as to the rate of maintenance is not final. 9. Their Lordships then proceeded to hold in the relevant extract at paragraph 12 as follows: Judicial notice can be taken of rising prices with the result that the cost of bare existence is regularly rising, rather mercurially. In principle, it makes no difference between an agreement by a wife not to claim any alimony at all and an agreement not to claim any enhancement of the rate of maintenance allowance, whatever be the chance in the circumstances. 10. In view of the aforesaid discussion, this Court is satisfied that the impugned order is not sustainable, the Magistrate concerned would have erroneously refused to exercise his jurisdiction merely for the reason that the amount of maintenance awarded on the earlier occasion would have been contested unsuccessfully in revision and before this Court. This aspect of the matter would completely be de hors the right of the petitioner to claim enhancement of the same as a statutory right u/s. 127, Cr. P.C. There would be no estoppel against the petitioner to claim enhancement of maintenance for reasons as recorded in the impugned order. The Magistrate would be required to exercise his jurisdiction afresh in view of the law as incorporated in sec. 127, Cr. P.C. 11. In the circumstances this application has to be allowed. The order dated 5.6.2003 is, accordingly, set aside. The matter remanded to the Court below to decide the matter afresh in accordance with law. The Magistrate would be required to exercise his jurisdiction afresh in view of the law as incorporated in sec. 127, Cr. P.C. 11. In the circumstances this application has to be allowed. The order dated 5.6.2003 is, accordingly, set aside. The matter remanded to the Court below to decide the matter afresh in accordance with law. Since the matter relates to a claim of maintenance this Court would direct the Court below to decide the matter afresh within a period of three months from the date of receipt/production of a copy of this order before it.