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2010 DIGILAW 646 (ALL)

MAHENDRA SINGH v. STATE OF U. P.

2010-02-19

VIRENDRA SINGH

body2010
JUDGMENT Honble Virendra Singh, J.—Mahendra Singh, the revisionist, filed this revision against the impugned order dated 25.08.2000 passed by Judge, Family Court, Varanasi in Case Crime No. 615/1995 (Smt. Urmila v. Mahendra Pratap) under Section 125, Cr.P.C. by which the learned Trial Court has rejected the application of the revisionist moved by him under Section 128, Cr.P.C. regarding amendment in the order of payment of the maintenance allowance to OP No. 2, i.e. Urmila Devi, wife of the revisionist and payment of maintenance allowance to minor child was stayed till final disposal of the revisionist’s application. 2. At the time of hearing of this Revision, no one appeared on behalf of the revisionist as well as respondent No. 2, while the learned AGA remained present on behalf of State of U.P. who is heard in the light of the grounds taken by the revisionist in the memo of this revision. 3. As per grounds contained in the memo of this revision, the impugned order is said to have been erroneous in the eyes of law as well as on the facts of the case because pending a revision in respect of the order of maintenance allowance is no bar to decide the application of the applicant under Section 128, Cr.P.C. and the application under Section 127, Cr.P.C. afresh. 4. It is also mentioned in the grounds of this revision that while deciding the main application under Section 125, Cr.P.C., the Court below had not considered any legal ground taken by the revisionist and the learned Lower Court placed reliance only on a pair of photographs of the revisionist and respondent No. 2, which could be got prepared by photographic tricks, therefore, in this revision, such grounds may be considered for which the learned Lower Court failed to consider, like, the declaration filed by the revisionist before his department showing his family members, copy of the kutumbh register and copy of the voters list in which Smt. Asha Devi has been shown as wife of the revisionist and not Smt. Urmila Devi, OP No. 2. 5. Learned AGA contended that there is no illegality in the impugned order which has been passed by the learned Lower Court within the jurisdiction vested in the Lower Court and which is not erroneous, neither on the facts of the case nor on any point of law, in this regard. 6. 5. Learned AGA contended that there is no illegality in the impugned order which has been passed by the learned Lower Court within the jurisdiction vested in the Lower Court and which is not erroneous, neither on the facts of the case nor on any point of law, in this regard. 6. In the light of the contentions of both the parties, I have gone through the facts and circumstances on record and I find that this revision has no force as the Lower Court has rightly held that in an application under Section 128 CrPC and in any application under Section 127, Cr.P.C. moved by any of the parties, those grounds could not be reconsidered, which have already been considered and finally decided in an application moved under Section 125, Cr.P.C. 7. Sections 127 and 128, Cr.P.C. provides alteration in the maintenance allowance and enforcement of order of maintenance. On proof of a change in the circumstances of any person receiving maintenance under Section 125 CrPC, the Magistrate may make such alteration as he thinks fit in the allowance for maintenance. When it appears to the Magistrate that in view of any decision of a competent Civil Court, the order under Section 125, Cr.P.C. should be cancelled or the woman receiving maintenance has remarried or any other grounds if established on record could force any alteration in allowance, the Magistrate concerned either may cancel the order of maintenance allowance or may alter it as per the circumstances available and proved on record. Section 128, Cr.P.C. which is meant for enforcement of order of maintenance has no relevance in this case. 8. As per the impugned order, it is revealed that the revisionist had preferred a revision against the order of maintenance passed by learned Lower Court against him. Taking recource of Section 128 CrPC, moving an application for cancellation or alteration of the order of maintenance already sub-judice before High Court, was not very much perfect in the eyes of law and the Lower Court committed no error thereby holding that the alteration or cancellation of the maintenance allowance already ordered by the Lower Court shall amount to a Revision or Review of the same order passed by the Lower Court, which is sub-judice too before the High Court. 9. 9. So far as the question of consideration of declaration filed by the revisionist before his department showing his family members, kutumbh register and voters list showing the name of his wife as Smt. Asha Devi is concerned, I am of this view that these facts are not the new facts or subsequent events, which could be considered as per provisions under Section 127, Cr.P.C. by the Lower Court. Similarly, reliance placed by the Lower Court only on a pair of photographs of the revisionist and respondent No. 2 is also the fact which has been taken into consideration by the Lower Court at the time of passing the order for maintenance and that fact further may not be taken into account taking recourse of Section 127, Cr.P.C. by the revisionist. 10. Hence, I have come to this conclusion that since the earlier grounds taken at the time of decision of the application under Section 125, Cr.P.C. cannot be re-agitated taking recourse of Section 127, Cr.P.C. and since Section 127, Cr.P.C. is applicable merely in the changed circumstances and since there is no fact on record regarding changed circumstances, therefore this revision has no force and is liable to be dismissed and is hereby dismissed. ————