IN THE HIGH COURT OF JUDICATURE AT PATNA CR. REV. No.128 of 2008 SMT.MEERA DEVI W/O SATYA NARAIN ROY --- PETITIONER Versus 1. THE STATE OF BIHAR 2. SATYA NARAIN ROY SON OF LATE SWARUP LAL ROY --- OPP. PARTIES. ----------- 04 01.10.2010 Heard learned counsels for the petitioner/wife, and the opposite party no.2/husband. Petitioner is aggrieved by order dated 1st November 2007, passed in Misc. case no. 04 of 2007 (Smt. Meera Devi vrs. Satya Narain Roy) whereby her application filed under Section 128 of the Code of Criminal Procedure ( hereinafter referred to as the „Code‟),has been considered and disposed of in the following manner:- “3. With above mentioned reasoning and finding, the instant application filed under section 128 Cr.P.C. for enforcement of order passed under section 125(1) Cr.P.C. in Misc. Case No. 11 of 1990, is disallowed and the order passed in Misc. Case no. 11/1990, under Section 125(1) Cr.P.C. for maintenance allowance in favour of applicant Meera Devi, is hereby cancelled under Section 125(5) Cr.P.C. due to adulterous life of applicant Meera Devi.As such, the applicant Meera Devi is not entitled to get any sum for her maintenance due to her adulterous life. Accordingly, the case is disposed of.” A brief background of the case may be set out for appreciation of the submissions raised by the parties and the issues involved. Petitioner/wife Meera Devi filed an application in the year 1992, seeking maintenance for herself and her daughter. Learned Magistrate, on a consideration of the materials brought on record by the parties, 2 allowed the said claim by order dated 24.11.1992, whereby the wife and her daughter were granted maintenance at the rate of Rs. 300/- (Three hundred) each. Subsequently in the year 1995, the wife again approached the Court for enhancement of the maintenance amount. On a consideration of the materials brought on record, the same was allowed, and the quantum of maintenance was increased from Rs.300/- (Three hundred) each to Rs. 450/- (Four hundred fifty) each to the wife and the daughter. Subsequently the wife again moved the Court for enhancement of quantum of maintenance which was enhanced to Rs. 500/- (Five hundred) each to the wife and the daughter. By filing the present application petitioner/wife made a grievance that the amount of maintenance allowed under different orders was not being paid to her. Let it be recorded that in the year 2002, the daughter of the petitioner/wife and opposite party no.2/ husband was already married. The petitioner, therefore, raised a grievance by filing the aforesaid application (Misc. case no. 4 of 2007) that the amount of maintenance was not being paid to her after 2005. On notice, the husband appeared. Learned Court below permitted both the parties to adduce evidence. Consequently evidence was adduced on behalf of the wife and the husband. On a consideration of the materials on record, particularly, the evidence of the applicant/wife/petitioner learned Court below found that she was living in adultery with one Ram Baran Mandal since last few decades. It has also been found that the daughter had already attained majority and was married. Learned trial Court under the order impugned found that the applicant/wife was not entitled to get any sum for her 3 maintenance due to her adulterous life. Accordingly, the prayer for execution of order was refused, and the matter was disposed of. Learned counsel appearing on behalf of the petitioner submits that the wife had approached the Court under Section 128 of the Code seeking enforcement of the order. No application by any of the party was filed under Section 125 (5) of the Code. It is the contention that refusal to execute the order under the impugned was erroneous and contrary to law in view of the fact that previous orders granting her maintenance was not interfered with at the instance of any of the parties in terms of provisions contained under Section 125 of the Code. Before this Court proceeds further, it would be appropriate to take notice of the provisions of the Code. Section 125(5) of the Code reads as under:- 125(5). “On proof that any wife in whose favour an order has been made under this section is living in adultery, or that without sufficient reason she refuses to live with her husband, or that they are living separately by mutual consent, the Magistrate shall cancel the order.” Section 127 of the Code provides alteration in allowance. Section 128 is captioned as „enforcement of order of maintenance‟ and reads as under: 128. “Enforcement of order of maintenance:- A copy of the order of maintenance shall be given without payment to the person in whose favour it is made, or to his guardian, if any, or to the person to whom the allowance is to be paid ; and such order may be enforced by any Magistrate in any place where the person against whom it is made may be, on such Magistrate being satisfied as to the identity of the parties and the non-payment of the allowance due.” 4 Learned counsel appearing on behalf of the opposite party no.2, on the other hand, submits that prior to filing of the present application by the applicant/wife/petitioner giving rise to Misc. case no. 04 of 2007, the petitioner/wife had filed Misc. case no. 96 of 2005, for enforcement of the previous order by which she was granted maintenance along with her daughter. The same stood dismissed for non-prosecution on 03.04.2006 (Annexure-A to the counter affidavit) thereafter the petitioner/wife again filed Misc. case no. 10 of 2006, for enhancement of the quantum of maintenance under Section 127 of the Code which was rejected by order dated 24.11.2006. Learned counsel for the petitioner, referring to the provisions contained under Section 125(5) of the Code, submits that whenever an application is filed either for enhancement or enforcement, the Court has to consider as to whether the applicant/petitioner/wife is entitled to such enhancement or enforcement. It is the contention of learned counsel that the jurisdiction conferred on the Court under Section 125(5) of the Code is not dependent upon filing any application before the Court seeking relief in terms of the said provision. Once an application has been filed either for modification/alteration/execution, the Court, if materials have been brought on record, is satisfied that the applicant is not entitled to the maintenance appropriate orders can be passed thereon in terms with the provisions of the Code. Referring to the operative portion of the order, it is contended that learned Court below, on a consideration of the materials on record, has concluded that the applicant/wife was leading an adulterous life, and as such she 5 was not entitled to get any sum for her maintenance and accordingly the application seeking execution of the order was disposed of. I have considered the submissions advanced on behalf of the parties. Learned counsel for the petitioner/wife has laid emphasis on one aspect of the matter. It has been submitted that husband had not approached the Court seeking relief in terms of Section 125(5) of the Code. This application was filed on behalf of the applicant/wife seeking enforcement of the order. The previous order granting her maintenance existed as there was no challenge made to the order, and as such, the Court was obliged to execute the order. To this, learned counsel for the opposite party has argued that whenever an application is filed seeking any relief, and evidence is brought on record by the parties, the applicant/petitioner/wife has to first demonstrate that applicant/petitioner/wife is still entitled to maintenance, and thereafter only the Court would proceed further and issue appropriate direction(s) for execution of the order. This Court finds from the order that parties were allowed to lead evidence. In fact, the parties led evidence. From the evidence brought on record, learned Court below has found that the applicant/wife was leading an adulterous life. Having found so, learned court below has refused to exercise its jurisdiction conferred under Section 128 of the Code. This issue can be appreciated from yet another angle. Section 125(5) of the Code is not dependent upon filing of any application before the Court. It is apparent and clear that as and when any party files an application for execution/alteration/modification of the order of maintenance and appropriate evidence is adduced in connection therewith, and the 6 Court, from the materials on record, comes to the conclusion that the applicant/wife is/was not entitled to maintenance, in view of the materials available on record, the Court is vested with the power to refuse the prayer. This Court, in view of the discussions made above, is convinced that the impugned order is in accordance with law and requires no interference. The application lacks merit. Dismissed. Sym ( Kishore K. Mandal, J.)