IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No. 98 (M/S) of 2006 Smt. Khimuli Devi … Petitioner Versus Mohan Singh Karayat & another … Respondents Mr. U.S. Bhakuni, Advocate for petitioner Mr. Dinesh Chauhan, Advocate for respondent no. 1 Dated: September 5, 2008 Hon’ble B.C. Kandpal, J. By way of this writ petition petitioner-Smt. Khimuli Devi, who is the wife of respondent no. 1- Mohan Singh Karayat, has challenged the judgment and order dated 29.10.2005 passed by Sessions Judge, Bageshwar in Criminal Revision No. 9 of 2005, which is contained in Annexure-1 to the writ petition. Brief facts of the case are that petitioner-Smt. Khimuli Devi moved an application under Section 125 of Cr.P.C. before Judicial Magistrate, Bageshwar and initially she was granted the maintenance for a sum of Rs.500/- per month. The respondent no. 1-Mohan Singh Karayat was directed to pay the amount of Rs.500/- per month to his wife-Smt. Khimuli Devi (petitioner). The order granting the maintenance for a sum of Rs.500/- was passed by the court on 12.3.1999. On account of price hike the petitioner-Smt. Khimuli Devi, in the year 2005, moved an application under Section 127 of Cr.P.C. for 2 enhancement of maintenance allowance from Rs.500/- to Rs.2000/- per month. The application under Section 127 of Cr.P.C. moved by the petitioner was opposed by her husband Mohan Singh Karayat-respondent no. 1. The learned Civil Judge (J.D.)/Judicial Magistrate, Bageshwar after having considered the entire evidence available on record and hearing learned counsel for the parties, partly allowed application under Section 127 of Cr.P.C. and enhanced the maintenance allowance to the tune of Rs.800/- per month, vide judgment and order dated 13.7.2005. Feeling aggrieved by the aforesaid judgment and order dated 13.7.2005, Mohan Singh Karayat (respondent no. 1 before this Court) preferred a revision before the court of Sessions Judge, Bageshwar, who allowed the revision vide judgment and order dated 29.10.2005. The learned Sessions Judge directed that Mohan Singh Karayat shall pay a sum of Rs.500/- per month regularly to his wife- Smt. Khimuli Devi (petitioner). Being aggrieved by the aforesaid judgment and order dated 29.10.2005 passed by Sessions Judge, Bageshwar, petitioner-Smt. Khimuli Devi has preferred the present writ petition before this Court. Heard Sri U.S. Bhakuni, learned counsel for the petitioner, Sri Dinesh Chauhan, learned counsel for respondent no. 1 and perused the record. 3 The Magistrate while disposing of application under Section 127 of Cr.P.C. has categorically assessed the evidence adduced by the parties. The learned Magistrate has also taken into consideration the oral evidence of witnesses produced by the parties. It has also been taken into consideration by the Magistrate that Mohan Singh Karayat has retired from Army and he has been getting the pension of Rs.5000/- per month after his retirement. It also appears from the perusal of judgment passed by Judicial Magistrate that Mohan Singh Karayat after having retired from Army has been serving in State Bank of India. The learned Magistrate has also taken into consideration that Smt. Khimuli Devi has no means of earning and in view of price hike it appeared to be justified to enhance the maintenance allowance to the tune of Rs.800/- from Rs.500/- per month which was initially awarded in favour of Smt. Khimuli Devi. The revisional court has exceeded its jurisdiction by reducing the amount of Rs.800/- from Rs.500/- awarded by learned Judicial Magistrate, Bageshwar. The learned Sessions Judge had no authority to direct the respondent no. 1 to award any sum of maintenance allowance. At best, learned Sessions Judge could either confirm the judgment or rescind the same, but he could not pass an order directing the parties to award a particular sum as maintenance allowance to Smt. Khimuli Devi. The judgment and order passed by learned Sessions Judge suffers with material illegality as well as it appears to me that learned Sessions Judge has exceeded his jurisdiction in passing the impugned judgment and order dated 29.10.2005. 4 However, on the basis of assessment of evidence as well as after perusing the judgments passed by both the courts below, I am of the view that judgment dated 13.7.2005 passed by Judicial Magistrate, Bageshwar on the application moved by Smt. Khimuli Devi, under Section 127 of Cr.P.C., appears to be just and proper. The judgment passed by Judicial Magistrate, Bageshwar, does not require any interference as learned Magistrate has taken all the aspects into consideration before enhancing the maintenance allowance from Rs.500/- to Rs.800/- per month. For the reasons stated above, I allow the writ petition and set aside the judgment and order dated 29.10.2005 passed by Sessions Judge, Bageshwar, in Criminal Revision No. 9 of 2005. I confirm the judgment and order dated 13.7.2005 passed by Judicial Magistrate, Bageshwar, in Criminal Case No. 07/2005, Smt. Khimuli Devi vs. Mohan Singh Karayat, under Section 127 of Cr.P.C. Accordingly, respondent no. 1-Mohan Singh Karayat is directed to pay a sum of Rs.800/- per month regularly to Smt. Khimuli Devi without any fail. The balance amount shall also be paid from 13.7.2005 by respondent no. 1-Mohan Singh Karayat to petitioner-Smt. Khimuli Devi, within a period of three months. In case, if the direction issued by this Court is not complied with by respondent no. 1-Mohan Singh Karayat, it will be open for the petitioner-Smt. Khimuli Devi to proceed against him by way of execution. (B.C. Kandpal, J.) SP 5