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Madhya Pradesh High Court · body

2019 DIGILAW 861 (MP)

Juhi Chawla v. Gangandeep Singh

2019-12-12

S.K.AWASTHI

body2019
ORDER 1. This criminal revision filed under section 397/401 of the Code of Criminal Procedure, 1973 read with section 19(4) of the Family Courts Act, 1984 is directed against order dated 4.8.2019 passed by Principal Judge, Family Court, Indore in Criminal MJC No. 121/2017, in which the application filed by the respondent under section 125(5) of the CrPC read with section 127 of the CrPC has been allowed and earlier interim maintenance amount granted to the applicant to the tune of Rs. 15,000/- per month, vide order dated 7.12.2018 has been reduced to Rs. 7,500/- and subsequently Rs. 5,500/- per month. 2. The necessary facts for the disposal of the instant petition are that the applicant is a legally wedded wife of the respondent and she is residing separately with the respondent regarding which the allegation of the applicant is that the respondent was persistently making demand of dowry and ill treated her, therefore, she was forced to leave her matrimonial house. Then applicant has filed an application for grant of maintenance from the respondent under section 125 of the CrPC. The said application is still pending. During the pendency of the proceedings, the applicant filed an application for grant of interim maintenance. After hearing the parties, the trial Court by order dated 7.12.2018 awarded interim maintenance to the respondent to the tune of Rs. 15,000/- per month. 3. During pendency of the case, respondent filed an application under section 127 of the CrPC seeking alternation in interim maintenance allowance by contending that he is not having financial condition to pay Rs. 7,500/- per month to the applicant as interim maintenance. He has also filed the copy of income tax return of the year 2016-2017 to 2018-2019, according to which his annual income is Rs. 1,55,380/- and submitted that he could not file the aforesaid documents earlier before the trial Court. The respondent also preferred Criminal Revision No. 6145/2018 before this Court against order dated 7.12.2018, which was dismissed by this Court, vide order dated 19.3.2019 granting liberty to the respondent to file an application under section 127 of the CrPC before the trial Court. After that, considering the income tax return of the respondents, the trial Court has reduced the interim maintenance amount from Rs. 15,000/- per month to Rs. 7,500/- per month from 7.12.2018 to 4.8.2019 and then Rs. After that, considering the income tax return of the respondents, the trial Court has reduced the interim maintenance amount from Rs. 15,000/- per month to Rs. 7,500/- per month from 7.12.2018 to 4.8.2019 and then Rs. 5,500/- per month from 5.8.2019 to till disposal of the case, vide order dated 14.8.2019. This order is a subject matter of challenge in the present revision petition. 4. Learned counsel for the applicant submitted that according to provision of section 127 of the CrPC any order made under such provision is effective from the date of order of such application and the trial Court has committed error of law by allowing the application of the respondent from 7.12.2018 i.e. from the order of interim maintenance. It is also submitted that the criminal Court is not having any power to review its own order, therefore, the trial Court has also committed error in reducing the interim maintenance amount. It is further submitted that during the pendency of petition under section 125 of the CrPC, respondent moved an application under section 127 of the CrPC before the learned trial Court for modification of the amount of interim maintenance and the trial Court without affording opportunity to lead evidence to both the parties, reduced the interim maintenance amount, therefore, the impugned order suffers from illegality and impropriety, hence, is liable to be set aside. 5. On the other hand, learned counsel for the applicant opposed the prayer by contending that the trial Court can modify its own order regarding grant of interim maintenance, therefore, it cannot be said that the trial Court review its own order. It is also submitted that after considering the income of the respondent, the trial Court has reduced the interim maintenance amount and this order is peremptory and does not warrant any interference. Hence, learned counsel for the respondent prays for rejection of the revision petition. 6. Having considered the arguments advanced by the learned counsel for the parties and perused the record. 7. Proviso II to section 125(1) provides that the Magistrate can grant reasonable interim maintenance and expenses of such proceedings. Hence, learned counsel for the respondent prays for rejection of the revision petition. 6. Having considered the arguments advanced by the learned counsel for the parties and perused the record. 7. Proviso II to section 125(1) provides that the Magistrate can grant reasonable interim maintenance and expenses of such proceedings. Thus, for ascertaining the amount of interim maintenance or the expenses of proceedings, the Magistrate is not required to record any evidence and considering the status of the parties as well as other relevant factors, any reasonable amount can be fixed by the Magistrate for the subsistence of the wife during the pendency of the application filed under section 125 of the CrPC. However, for alteration in allowance, the person seeking alteration has to prove that there is change in circumstances because the opening words of section 127(1) of the CrPC are "on proof of a change in the circumstances.” therefore, the person seeking alteration in allowance has to prove that the amount fixed by the Magistrate by way of interim maintenance is required to be altered in the light of charge of circumstances. The word 'proof' denotes that it has to be proved by leading evidence. Thus, the submission made by learned counsel for the applicant is having force that the allowance cannot be altered under section 127 of the CrPC without recording of any evidence. 8. The Income Tax Return of the respondent cannot be treated a public document and the Court cannot take judicial notice of the same and the Income Tax Return of the respondent is required to be proved like by any other document. Furthermore, whether the respondent has correctly disclosed his income in the Income Tax Return or not is also a question of fact which requires to be considered by the Magistrate/trial Court. The Income Tax Return is a matter between the assesse and the revenue and the Income Tax Return filed by the applicant is not binding on the Magistrate and the Magistrate after considering the circumstances may adjudicate upon the income of the applicant, therefore, the Court cannot take judicial notice of the same while considering the application under section 125 of the CrPC and the respondent is required to prove his income by leading evidence. 9. 9. Since the application under section 125 of the CrPC is already pending, therefore, it would not be feasible for the family Court to first record the evidence for the purpose of deciding the application under section 127 of the CrPC and thereafter to record the evidence afresh for the purpose of deciding the proceedings under section 125 of the CrPC. It is pertinent to note that the interim maintenance amount awarded by the Magistrate is not the final amount, the same can be redetermined by the trial Court/Magistrate while deciding the application under section 125 of the CrPC. Under these circumstances, this Court is of the considered view that the application filed by the respondent under section 127 of the CrPC is premature, therefore, learned Principal Judge, Family Court, Indore has committed error in reducing the maintenance amount from Rs. 15,000/- per month to Rs. 7,500/- per month and Rs. 5,500/- awarded to the applicant under section 125 of the CrPC. Accordingly, the present revision petition is allowed and order dated 4.8.2019 passed by Principal Judge, Family Court, Indore in Criminal MJC No. 121/2017 is hereby set aside meaning thereby the respondent is directed to pay interim maintenance of Rs. 15,000/- per month to the applicant instead of Rs. 7,500/- or Rs. 5,500/- per month. 10. Let a copy of this order be sent to the concerned Family Court, Indore for information and necessary compliance. .................