The Karnataka High Court in its order dated February 17, 2022 has held that maintenance awarded to an estranged wife under the provisions of Protection of Women from Domestic Violence Act, 2005, cannot be enhanced on an application made by her under section 127 of the Criminal Procedure Code (CrPC).
A single judge bench of Justice M. Nagaprasanna said,
A 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 couple married in April 2001. After turmoil in the marriage, the wife filed an application invoking Section 12 of the Protection of Women from Domestic Violence Act, 2005. The magistrate court awarded a maintenance of Rs 1,000 in 2018.
Later the wife filed a petition invoking Section 127 of the Cr.P.C. for enhancement of the maintenance amount awarded under the Act. The petition came to be allowed and the magistrate court increased the maintenance amount to Rs 5,000, from the date of the order in 2019.
The husband challenged the order before sessions court; the court confirmed the order of the magistrate court. Following which he approached the High Court.
Karnataka High Court
The bench hearing the matter was of the opinion,
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.
Following which the court held,
The fact that provisions 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. Therefore, 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.
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