IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Criminal Revision No. 62 of 2009 Date of Decision: 17th September, 2010 __________________________________________________________ Jagan Nath ….Petitioner. Versus Shanta Devi & another ….Respondents. ___________________________________________________________ Coram The Hon’ble Mr. Justice Dev Darshan Sud, J. Whether approved for reporting?1 Yes. ___________________________________________________________ For the Petitioner: Mr. Ajay Sharma, Advocate For the Respondent: Mr. Ajay Kumar Sood, Advocate. __________________________________________________________ Dev Darshan Sud, J (oral). The petitioner, who is the husband, challenges the order for enhancement of maintenance granted to the respondents, who are his wife and daughter. Vide order dated 15.1.1997 learned Chief Judicial Magistrate, Shimla awarded a sum of Rs. 400/- and Rs. 300/- per month respectively to Smt. Shanta Devi and Kumari Shalini. This petition was instituted in the year 1994. 2. An application under Section 127 of the Code of Criminal Procedure was filed in the year 2008 by the respondents herein claiming enhancement of maintenance pleading that due to inflation, it was impossible for them to eke out a living with the meager maintenance 1 Whether Reporters of Local Papers may be allowed to see the judgment? Yes 2 awarded to them. They also pleaded that salary of the petitioner herein was Rs. 18,000/- per month besides the fact that he was having income from his orchard. 3. In reply, the petitioner resisted the application on a number of grounds. One of them is on jurisdiction, second is that the petitioner has to look after his elder son and mother. I find from the pleadings that some strange pleas have been urged by using slang which practice can not but be deprecated. The respondent pleads: That the present petition is filed just to harass the respondent with malafide intention and to fulfill the ill full design. However, it is pertinent to mention here that there is no ground to alter/enhance the maintenance amount against replying respondent. The petitioners have had big bucks. The siblings of the petitioner No. 1 are dam rich. That is why petitioners have filed this petition against 11 years.” 4, Shanti Devi appeared as her own witness and stated that the petitioner was earning handsome income of Rs. 18,000/- per month as salary and in addition, he has an apple orchard from which he has a substantial income. She states in evidence that in the maintenance granted, she faces difficulty even in buying enough food for herself and her daughter. 5. The second witness produced by the respondents is Kalam Singh, states that the petitioner is employed with the Himachal Pradesh State Cooperative Bank where he is earning 18,000/- per month as salary and he has orchard of 15 bighas and is having income of approximately Rs. 5 lacs per year. He states that he knows the parties and that the wife and daughter of the petitioner (respondents) are living separately from him. 6. The petitioner has appeared as his own witness and states that he belongs to a poor family and is looking after his aged mother and his elder son. The petitioner has denied the allegations made 3 by the respondents. Ext.PA is the copy of jamabandi for the year 2004-05 of the land of the petitioner and Ext.PB the salary certificate, which has been issued by the Himachal Pradesh State Cooperative Bank Limited. According to the certificate, the total gross monthly salary/emoluments of the petitioner are Rs. 31,175/-. 7. On the evidence, the learned trial Court allowed the application and increased maintenance allowance at Rs. 3500/- and Rs.3000/-, payable to the respondents. The petitioner has now instituted the revision petition against the said order. 8. First point urged by learned counsel appearing for the petitioner is that Court at Rampur Bushehr has no jurisdiction to pass the order and it can be varied only by the Court which had passed first order of maintenance i.e. the Court at Shimla. In particular, he placed reliance on the judgment of the Andhra Pradesh High Court in G. Balraj vs. Smt. Mallamma and another, 1984 Cri.L.J. 1170 where the Court holds:- “2. Mr. Sundararaja Rao, the learned Advocate appearing on behalf of the petitioner-husband contended that the petition which is filed under S. 127 Cr.P.C. ought to have been filed before the same Magistrate who had passed the orders in the prior petition viz., M.C. No. 4/75. He contends that a reading of S. 126, Cr.P.C. would show that where the proceedings under S. 125 Cr.P.C. are to be taken against any person, then the petition should be filed as to where the husband resides or where the husband or wife resides or where the husband last resided with his wife or as the case may be with the mother of the illegitimate child. Submits the learned advocate that S. 127 Cr.P.C. is an independent proceeding and therefore S. 126 Cr.P.C. has no application thereto and that the petition for enhancement of maintenance will have to be filed before the same Magistrate who had passed orders of maintenance in the first instance. In support of this contention, the learned advocate has cited a decision reported in Vithalrao Marotrao v. Smt. Ratna Prabha 1978 Cri LJ 1406 (Bom.)…….” “5. Hence, this revision is allowed and the order of the lower court is set aside. The petition filed by the wife, who is the respondent before me, may be transferred to the court of the VI Metropolitan 4 Magistrate, Hyderabad within three weeks from the date of receipt of the order of this court and the proceedings will continue from the place where they were, before the III Metropolitan Magistrate, Hyderabad.” (at pp. 1170-1171) 9. Learned counsel for the petitioner places reliance on judgment of the Gujarat High Court in Kailashben Arvindkumar Joshi vs. Arvindbhai Ratilal Joshi and another, 1986 (1) Crimes 556 holding: “5. The objects and reasons for amendment of section 488 as recommended by the Law Commission are as under: “Under sub-section (8), the place where the wife resides after desertion by the husband is not material and regards the vague of the proceedings, though the place where the husband resides even temporarily is relevant; often deserted wives are compelled to live with their relation far away from the place where the husband and wife last resided together. They would be put to great harassment and expenditure unless the venue of the proceedings is enlarged so as to include the place where they may be residing on the date of the application. With reference of sub-section (8) there is the following controversy. Is it sufficient if the husband resides in the district in which the proceedings are instituted must itself be one having jurisdiction over the place where the husband resides. The Bombay view is that a proceeding under section 488 instituted in any competent Court within the district in which the husband resides, or is, or in which he last resided with his wife. This is also the Patna view and Kerala view. The Madras High Court has, however, taken a different view. In our opinion the Bombay view is correct, as the wording of the sub-section does not seem to justify the addition of any further restriction. We think the language is clear and needs no amendment on this points.” Now from these objects and reasons it is clear that to avoid the harassment to the deserted wives who are compelled to live with their relatives far away from the place where the wife and husband last resided together and also the expenditure, under section 126(1) it is provided that the wife is entitled to file an application where she resides. The aforesaid quotation further says that the Bombay High Court has taken the view that the proceedings under section 488 can be instituted in any competent Court within the district in which the husband resides and it was not necessary that the application should be 5 filed only before the Magistrate at the place where the husband resides and the view of the Bombay High Court was also approved by the Law Commission by observing that the wording of sub- section does not seem to justify the addition of any further restriction and the language is clear and needs no amendment on that point.” (at p. 558) 10. Adverting in detail to the provisions of Section 125, 126 and 127 of the Code of Criminal Procedure, the Court, while considering the amendment made under Section 488 of the Code of Criminal Procedure, the entire case law was discussed and the judgment of Andhra Pradesh High Court in G. Balraj vs. Smt. Mallamma and another, 1984 Cri.L.J. 1170 was distinguished. The Court further elaborated the provisions of Section 126 and 127 of the Code of Criminal Procedure, holding that even if the order is passed by a particular Magistrate, it can be enforced by any Magistrate in a place where the person against whom it is made, can be bound. There is no restriction for execution of the order or bar to any Magistrate to implement this order. The Court then proceeds to consider the provisions of Section 127 as to whether the application under this provision can be filed only before the Magistrate, who has passed the order of maintenance. Relying upon the judgment of Bombay High Court in In re Palavanti Bai, AIR 1953 Bom. 366, the Supreme Court in Bai Tajira v. Ali Hussain Pissall AIR 1979 SC 362 and Sirajmohmedkhan v. Hafimunnisa Yasinkhan, AIR 1981 SC 1972, amongst others the Gujarat High Court held that no separate procedure is required to decide the application under Section 127 Cr.P.C. In conclusion, the Court holds: “6. Section 127 provides that the application for alteration in the allowance can be filed by the wife, child, father or the mother. Sub-section (2) provides that the Magistrate may cancel or very any order under section 125 in consequence of any decision of a competent civil court. Sub-section (3) provides that the order under section 125 can be cancelled in certain set of circumstances such as 6 divorce or remarriage. Sub-section (4) provides that the Civil Court shall take into account the sum which has been paid to or recovered by way of maintenance. 7. Section 128 provides that a copy of the order of maintenance shall be given without payment to the person in whose favour the order is made and such order can be enforced by any Magistrate in any place where the person against whom it is wife may be, on such Magistrate being satisfied as to the identity of the parties and the non-payment of allowance due. Section 128, therefore, empowers that even if the order is passed by any Magistrate the maintenance order can be enforced by the Magistrate in a place where the person against whom it is made, is bound. So far as the execution is concerned, there is no restriction and it empowers any Magistrate to execute the said order wherever the person against whom it is made resides. Therefore, the limited question is whether under section 127 an application can be filed before the Magistrate who had not passed maintenance order under section 125. 8. As stated above under section 128 of the Code any Magistrate is entitled to execute the award of maintenance and as such there is no restriction that execution application could be filed only before the Magistrate who passed the said order. In the case of In re Palavanti bai, AIR 1953 Bom. 366, the Bombay High Court has interpreted the provisions of Sections 484 and 490 of the Criminal Procedure Code and held that even in an execution application under section 489 the Magistrate is entitled to enhance or alter the maintenance amount on proof of change in the circumstances of any person receiving the maintenance. The Court further observed as under: “If in the consideration of an application under section 490 the Magistrate is satisfied that there has been a change of circumstances which justifies him in exercising his jurisdiction under section 489, in my view, it is open to him to modify the order after taking into account the change of circumstances and to award such maintenance as may be just. I am unable to accept the view of the learned Magistrate that once one of the dependents for whose benefit the order was passed died the whole order must be deemed to be vacated. If the jurisdiction to modify or amend the order in view of the change of circumstances be granted, it is difficult to understand why in the case where a consolidated order has been passed, death of one of the beneficiaries may not be regarded as a change of circumstances inviting the exercise of the jurisdiction under section 489. In my view there is no justifiable reason for holding that the application for enhancement would 7 be maintainable only before the Magistrate who passed the said order. Under section 127 of the Code there is no specific bar lying down that the application under section 127 would be maintainable only before the Magistrate who passed the said order. 9. There is also no reason for holding that the word “Magistrate” used in section 127 should be interpreted narrowly by holding that the Magistrate who has decided the application under section 125 only would have jurisdiction to decide the application under section 127. 10. As stated above the object of amending section 488(8) is to see that there is no harassment and expenditure to the wives who are compelled to live with their relatives far away from the place where they last resided together with their husbands. If narrower meaning is given by holding that the venue of enhancement application would be the Court which passed the award of maintenance under section 125. The object of the amendment would be frustrated. 11. Further under section 127 no other procedure is prescribed for deciding the application which may be filed for alteration or enhancement or cancellation of maintenance order. Chapter IX which consists of four sections which provides for complete procedure for deciding maintenance application nowhere provides that under section 127 the Magistrate is not required to follow the procedure prescribed under section 126. While deciding the application under section 127 the Magistrate is, therefore, required to follow the procedure prescribed under section 126 and once it is held that the Magistrate is required to follow the procedure prescribed under section 126 it would follow as a necessary consequence that the wife is entitled to file an application for enhancement under section 127 in the district where she resides as per section 126(1)(b). 12. It is further well settled by the series of decisions that the provisions of section 125 of the Criminal Procedure Code are for the welfare of the neglected wife, children and parents and the object is to prevent the harassment and that provisions should be construed liberally…………………………….. The learned advocate for opponent No. 1 has also relied upon the decision in the case of G. Balrai v. Mallamma, 1984 Cri.L.J.1170 where the Court has held that section 127 of the Code which is for alteration in the amount is completely different and for this section 126 has no application. The court held that the words “the Magistrate” would mean the Magistrate who had passed the first order of maintenance. The court further held that the 8 interpretation given by it was strengthened by the provisions of section 128 which is the section for enforcement of the order which specifically provides that such petition may be presented before any Magistrate. As discussed above and as held by the Bombay High Court in A.I.R. 1953 Bombay page 366 (supra), in an application for execution or enforcement of the order under section 125, the Court has jurisdiction to enhance the maintenance if there is change of circumstances. Apart from this, in my view, as discussed above, there is no provision which provides that the application under section 127 would be maintainable only before the Magistrate who had passed the order under section 125 or that section 126 has no application to it. This would be too narrow interpretation. 13. As discussed above, section 127 does not provide for any other separate procedure for deciding the application. The procedure provided in section 126 is the only procedure applicable to the proceedings under section 127 of the Code. Further there is no specific bar that the application for enhancement or alteration of maintenance award cannot be filed before the court where the wife resides. In any set of circumstances by giving interpretation to the provisions of section 127 by holding that for modification or alteration the wife is entitled to file application where she resides as provided under section 126 of the Code, no violence is caused to the statutory provisions and as this Chapter IX is for the welfare of deserted and neglected wife, children or parents there is no reason to give narrow interpretation to the said provisions as contended.” (at p. 560-561) I am in respectful agreement with the law laid down by Gujarat High Court. The submission made on behalf of the petitioner is therefore rejected. 11. The second submission made by the petitioner is that amount is excessive and the salary of the petitioner has not been proved in accordance with law. I cannot accept this submission. It is in evidence that Ext.PB has been issued by the employer of the petitioner herein and it is not disputed with the veracity of the certificate. So far as the amount is concerned, considering the fact that petitioner has not only the source of income from his salary, but he has the income from his apple orchard, I do 9 not find that the amount, which has been awarded, is excessive. There is no merit in this revision petition. It is accordingly dismissed. (Dev Darshan Sud) Judge September 17th , 2010(ms)