Research › Search › Judgment

Rajasthan High Court · body

2006 DIGILAW 845 (RAJ)

Bachna Ram v. State of Rajasthan

2006-03-10

H.R.PANWAR

body2006
Judgment H.R. Panwar, J.-By the instant criminal revision petition under Section 397 read with Section 401 of Code of Criminal Procedure, 1973 (for short the Code hereinafter) the petitioner has challenged the order dated 012.2004 passed by Judge, Family Court, Jodhpur (for short the family Court hereinafter) in Criminal Original Case No. 97/2003 whereby the family Court allowed the application filed by Non-petitioner No. 2 under Section 125 of the Code and granted maintenance in favour of Non-petitioner No. 2 and against the petitioner at the rate of Rs. 1,000/-per month with effect from 19.06.2003. Aggrieved by the order impugned, the petitioner has filed the instant revision petition. 2. Heard learned Counsel for the petitioner. Perused the order impugned. I have also carefully gone through the order dated 012.1986 passed by Judicial Magistrate, Ist Class Phalodi in Criminal Misc. Case No. 162/1983 whereby the application filed by Non-petitioner No.2 under Section 125 of the Code was allowed and a maintenance at the rate of Rs. 200/-per month was granted in her favour and against the petitioner. I have also gone through the complaint filed by Non-petitioner No. 2 before the family Court under Section 125 of the Code being Criminal Original Case No. 97/2003. 3. It is contended by the learned Counsel for the petitioner that the Non-petitioner No. 2 earlier filed an application under Section 125 of the Code being Criminal Misc. Case No. 162/83 before Judicial Magistrate, Ist Class, Phalodi, which came to be allowed by order dated 012.1986 but without disclosing the fact that the Non-petitioner No. 2 had earlier filed an application under Section 125 of the Code seeking maintenance and the maintenance has been granted in the earlier proceeding in her favour, the Non-petitioner No. 2 again filed an application under Section 125 of the Code which also came to be allowed by family Court vide order impugned dated 012.2004. Learned Counsel submits that once an application under Section 125 of the Code has been allowed, thereafter any alteration or change in the maintenance awarded can only be made under Section 127 of the Code and not by a fresh application under Section 125 of the Code. 4. I have given my thoughtful consideration to the submissions made by the Counsel for the petitioner. 5. 4. I have given my thoughtful consideration to the submissions made by the Counsel for the petitioner. 5. From the perusal of the record, it appears that the successive complaint filed by the Non-Petitioner No. 2 nowhere discloses that Non-Petitioner No. 2 earlier filed an application under Section 125 of the Code which was allowed and maintenance was granted in her favour. The family Court considering the application under Section 125 of the Code filed in the instant case as first application, allowed the same without taking note of the fact that Non-Petitioner No. 2 earlier filed an application under Section 125 of the Code, which came to be allowed and maintenance was granted in her favour. 6. Any change/alteration in the maintenance allowance can only be made under Section 127 of the Code. Section 127 of the Code reads as under:-“127. Alteration in allowances.-(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. 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) Whereany 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) thewoman 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) thewoman has obtained a divorce from her husband and that she had voluntarily surrendered her rights to [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 [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 [as monthly allowance for the maintenance and interim maintenance or any of them, as the case may be, in pursuance of ] the said order.” 7. Keeping in view the provisions of Section 127 of the Code, in my view the family Court fell in error in entertaining successive application under Section 125 of the Code. Keeping in view the provisions of Section 127 of the Code, in my view the family Court fell in error in entertaining successive application under Section 125 of the Code. Sub-section (1) of the Section 127 of the Code provides that 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. On plain reading of this provision makes it clear that any person receiving under Section 125 of the Code monthly allowance for maintenance or interim maintenance may make an application under Section 127 of the Code seeking alteration including enhancement of maintenance with the change in the circumstances including increase in income of the party paying maintenance or inflation in market rate or showing that the person entitled for maintenance is unable to maintain by the amount awarded under Section 125 of the Code earlier to the application under Section 127 of Code. 8. Consequently, the revision petition is allowed. The order impugned dated 012.2004 passed by Judge, Family Court, Jodhpur in Criminal Original Case No. 97/2003 is hereby set aside. Stay application also stands disposed of . However, it is made clear that if the Non-Petitioner No. 2 feels that the maintenance amount awarded in her favour in earlier proceeding vide order dated 012.1986 in Criminal Misc. Case No. 162/1983 is insufficient to maintain herself , she is at liberty to file a petition under Section 127 of the Code seeking enhancement of the maintenance and if such application is filed, the family Court shall decide the same in accordance with law utmost expeditiously.