Karnataka High Court: M. Nagaprasanna, J. allowed the criminal petition and quashed both the orders by the Magistrate and the Sessions Judge.
The facts of the case are such that the petitioner and the respondent are husband and Wife and the marital life between the couple have turned sore, pursuant to which respondent-wife filed a petition invoking Section 12 of the Protection of Women from Domestic Violence Act, 2005. The Magistrate awarded maintenance of Rs.1,000/-. After invoking the provisions of the Act, the respondent-wife filed a invoking Section 127 of the Cr.PC. 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, Criminal Revision Petition invoking Section 397 Cr.PC was filed. The Sessions Judge dismissed 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 is these two orders that are called in question in the subject petition.
Counsel for the petitioner submitted that the respondent once having invoked the provisions of the Act could not have filed an application seeking enhancement under Section 127 of the Cr.P.C. The order passed by the learned Magistrate as affirmed by the learned Sessions Judge is orders without jurisdiction.
The Court observed that 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.
The Court further observed 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. The language employed in Section 127 of the Cr.P.C. is unequivocal as on a proof of change in the circumstances of any person receiving 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. The fact that a provision of Act was invoked for grant of maintenance and provisions of Cr.P.C. are invoked seeking enhancement of maintenance cannot be countenanced in law.
The Court thus held “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.”
[Shivanand v. Basavva, Criminal Petition No. 101378 of 2019, decided on 17-02-2022]