IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.MMO No. 131 of 2008 Decided on: 4.3.2009. _________________________________________________ Master Raja minor through his mother. Petitioner Versus Vivek Kumar Tandan. Respondent Coram The Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting ? Yes. For the petitioner :Mr. R.L. Sood, Senior Advocate with Mr. Vikas Rajput, Advocate. For the respondent :Mr. Adarsh K. Vashisth, Advocate with Mr. H.S. Upadhaya, Advocate. Surinder Singh, J (oral). The minor petitioner has preferred the present application through his mother, his natural guardian under Section 482 of the Code of Criminal Procedure, against the order dated 28.8.2008, passed by the learned Sessions Judge (Forests), Shimla, in Criminal Revision Petition No.8-S/10 of 08/07, whereby he affirmed the order passed by the learned trial court allowing the application of the petitioner under Section 127 of the Code of Criminal Procedure for enhancing the amount of _____________________________________________________ Whether reporters of Local Papers may be allowed to see the Judgment ?.Yes. - 2 - maintenance from Rs.500/- to Rs.2500/- from the date of order and not from the date of application. The admitted facts are that Smt. Madhu Chauhan was married on 12.11.1990 to respondent No.1. From this wedlock, she gave birth to Master Raja on 27.3.1992. It is alleged that the respondent chucked out the minor petitioner along with his mother from the matrimonial home on the demand of dowry. Consequently, Smt. Madhu Chauhan filed a petition for maintenance and also filed a separate application for the maintenance of the minor aforesaid, which was allowed in the year 1997. The learned trial court awarded the monthly amount of Rs.500/- which was assailed in revision petition before the learned Sessions Judge, only on the point of inadequacy. Vide order dated 8.11.2002, the learned Additional Sessions Judge dismissed the revision petition. Thereafter on 14.1.2003, an application for seeking enhancement of the maintenance amount was preferred on behalf of the minor, under Section 127 of the Code of Criminal - 3 - Procedure, on the grounds that the amount of Rs.500/- awarded by the learned trial court for his maintenance was not sufficient even to bear the minimum requirement. At that time, the minor petitioner was aged about 10 years and studying in 5th standard in “Chalet Day School”, Shimla and details of expenses were calculated to the tune of Rs.2337/- per month, which inter-alia included the school fee, dress etc. The respondent resisted and contested the petition, on the ground that the mother of the petitioner was an employee in the hotel and she was earning hand and that she was paid Rs.2,50,000/- towards her maintenance and also for maintenance of the minor son along with jewelry of the equal amount. After paying a total amount of Rs.5 lacs (cash + Jewelry) and the matter was fully and finally settled, which fact has been categorically denied in the rejoinder filed for and on behalf of the minor. Both the parties led their evidence and learned trial court vide its detailed judgment passed on 25.5.2007 enhanced the maintenance amount from Rs.500/- per month to Rs.2500/- per month only from the date of order, which - 4 - was affirmed in revision petition by the learned Sessions Judge, in revision filed on behalf of the minor on the ground that it should have been from the date of application, which has been assailed in the petition under Section 482 Cr.P.C. I have heard the learned counsel for the parties and have carefully gone through the record of the case. The question for determination before this court is whether the enhancement of maintenance allowance is to take effect from the date when it is asked for or that it can be awarded only prospectively. There is no dispute that the Magistrate has power to increase rate of the maintenance allowance once awarded, as per the provisions of Section 127 of the Code of Criminal Procedure, but it is also within the powers of the Magistrate to direct that the increased rate of maintenance allowance be paid from the date of application asking for the increase, if the circumstances so warrant. In the instant case, the petitioner has asked for the enhancement of the amount by filing a petition, in the court on 14.3.2001 when he was a student of 5th standard and his - 5 - expenses were assessed around Rs.2337/- as detailed in the order. The Magistrate took note of the said expenditure and on the evidence on record found it justified its increase and finally vide order dated 25.5.2007 i.e. after about two years ordered for the payment of enhancement of maintenance @ Rs.2500/- per month from the date of order when he was in 7th standard. In fact with the development of age and going to the higher classes, the expenditure would increase. Thus in the circumstances of the case, the maintenance amount which was needed in 5th standard should have been ordered to be paid from the date of application and not from the date of order. No reasons has been assigned by the Magistrate below as to why the petitioner was not found entitled for the maintenance from the date asked for. I also do not concur with the reasons given by the revisional court for not accepting to the prayer. In fact, Section 127 of the Code of Criminal Procedure is only consequent to Section 125 of the Code of Criminal Procedure which empowers a Magistrate to award maintenance amount to the wife or to the children. Therefore, even if elaborate - 6 - provisions are not made under Section 127 of the Code of Criminal Procedure on the same lines as under Section 125 of the Code i.e. from the date of application, it cannot be said that a Court acting under Section 127 Cr.P.C. has no powers as it has under Section 125 of the Code. Thus, on the harmonious reading of both the sections, I am of the view that if the Magistrate has powers under Section 125 of the Code of Criminal Procedure to award the maintenance from the date of application, he must have the same powers to award the increased allowance also from the date of application for enhancement on justifiable grounds. But, however, there is a distinction between an order reducing the maintenance allowance and an order increasing the maintenance allowance, but in the case of an order of the former category, the amount already accrued cannot be retrospectively varied. Therefore, for the reasons aforesaid, the petition is accepted and the order of enhancement of the amount of maintenance of Rs.2500/- per month from the date of petition is allowed in the facts and circumstances of the case. - 7 - The record of the learned court below be returned forthwith. The matter stands accordingly disposed of. March 04, 2009. (Surinder Singh), (Pds) Judge.