Shivanand S/O Karabasappa Gurannavar v. Basavva @ Laxmi W/O Shivanand Gurannavar 17 Feb 2022 , Karnatka High Court
Criminal Petition No.101378/2019
In a case where, under Section 127 of Cr.P.C., the Trial Court enhanced the maintenance granted by it to a wife in response to her petition Section 12 of the Protection of Women from Domestic Violence Act, 2005, the Karnataka High Court has held that without there being any determination of maintenance under Section 125 of the Cr.P.C., a petition under Section 127 of the Cr.P.C. is not maintainable.
“Section 125 of the Cr.P.C. enables the wife to seek maintenance at the hands of the husband inter alia. Invoking this provision, the learned Magistrate can award maintenance. Section 127 of the Cr.P.C. deals with alteration in allowance. Maintenance that is awarded under Section 125 of the Cr.P.C. can be varied in an application filed under Section 127 of the Cr.P.C. What is sine qua non is that an order of maintenance should precede a petition under Section 127 of the Cr.P.C., failing which, a petition under Section 127 of the Cr.P.C. seeking enhancement of maintenance is not available.”
In this case, the marriage between the couple took place in 2001, however, owing to marital disputes, the respondent-wife filed a petition invoking Section 12 of the Protection of Women from Domestic Violence Act, 2005 (‘Act’ for short). The Magistrate before whom the miscellaneous case was filed under the Act while entertaining the case awarded maintenance of Rs.1,000/-. After invoking the provisions of the Act, the respondent-wife filed a petition in invoking Section 127 of the Cr.P.C. for enhancement of the maintenance amount awarded under the Act. The petition was allowed and the respondent-wife was awarded maintenance of Rs.5,000/- from the date of the order. Feeling aggrieved by the order passed, the petitioner-husband filed a Criminal Revision Petition invoking Section 397 of the Cr.P.C. The Sessions Judge dismisses the said Revision Petition confirming the order passed by the Magistrate enhancing maintenance to the wife from Rs.1,000/- to Rs.5,000/-. It was these two orders that were called in question before the High Court petition.
After looking into the fact situation, the Court observed ( Para 11) that it is an undisputed fact that the respondent-wife invoked the provisions of the Act in which maintenance was awarded. It is also an admitted fact that there is no proceeding initiated by the respondent-wife invoking Section 125 of the Cr.P.C.
“Therefore, without there being any determination of maintenance under Section 125 of the Cr.P.C., petition under Section 127 of the Cr.P.C. is not maintainable,” asserted the Court.
The Court then opined that ( Para 12 ) the language employed in Section 127 of the Cr.P.C. is unequivocal as on a proof of a change in the circumstances of any person receiving an allowance under Section 125 of Cr.P.C. can maintain a petition under Section 127 of the Cr.P.C. A proceeding under Section 125 of the Cr.P.C., therefore, should precede a proceeding under Section 127 of the Cr.P.C.
Further, while observing that the fact that provisions of Act were invoked for grant of maintenance and provisions of Cr.P.C. are invoked seeking enhancement of maintenance could not be countenanced in law, the Court adjudged that the order passed by the learned Magistrate enhancing maintenance under Section 127 of the Cr.P.C. was without jurisdiction and a nullity in law.
“The foundation being a nullity in law, a super structure to it affirming the order of the learned Magistrate, by the learned Sessions Judge will have to follow suit- is to be declared a nullity in law,” the Court opined.