IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.R.UDAYABHANU TUESDAY, THE 16TH OCTOBER 2007 / 24TH ASWINA 1929 RPFC.No. 26 of 2003() --------------------- MC.29/2001 of FAMILY COURT, ERNAKULAM. .................... REVISION PETITIONER/RESPONDENT IN MC --------------------------------- GEORGE, AGED 78, S/O.LATE THOMAS MATHEW, RESIDING AT KANNAMALA BHANGLAVU, PUTHUSSERY P.O., PATHANAMTHITTA. BY ADV. SRI.SUBAL J.PAUL SMT.SHEEBA SUBAL RESPONDENTS: PETITIONER IN MC ----------------------------- EALIYAMMA GEORGE @ RAJAMMA GEORGE, RESIDING AT PAZHUPPADY VEETIL, ELOOR NORTH, UDYOGAMANDAL, ERNAKULAM. BY ADV. SRI.GEO PAUL THIS REV.PETITION(FAMILY COURT) HAVING BEEN FINALLY HEARD ON 16/10/2007, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: O R D E R NO REPRESENTATION. DISMISSED. SD/- K.R.UDAYABHANU, JUDGE 16/10/2007 ORDER ON CRL.M.P.NO.2513/2003 IN R.P.(F.C).NO.26/2003 CLOSED. SD/- K.R.UDAYABHANU, JUDGE 16/10/2007 \\TRUE COPY// K.R.UDAYABHANU, J. ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ RPFC.No. 26 of 2003(A) ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ O R D E R 16th October, 2007 A.K. Basheer, J. - - - - - - - - - - - - - - - - - - - - - - - - - R.P (F.C) No. 26 of 2003 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 14th day of February, 2008. ORDER This revision petition is at the instance of a husband. He impugns the preliminary order passed by the Family Court, Ernakulam on the question of maintainability of the petition filed by his wife under Section 127 of the Code of criminal Procedure before the court for enhancement of maintenance awarded to her in an earlier proceeding. 2. It is on record that maintenance was awarded to the wife at the rate of Rs.100/- per mensem u/s 125 of the Code by the Chief Judicial Magistrate's Court, Alappuzha, way back in the year 1977. The wife filed the present application in 2001 for enhancement, under Section 127 of the Code before the Family Court, Ernakulam contending that she was not able to maintain herself with the paltry sum awarded to her. She is a heart patient in her late 60's. Her two grown up children are residing separately. Therefore she sought enhancement of the maintenance allowance of Rs.100/= to Rs.500/= per month. She specifically averred in the RPFC.26/2003. 2 application that she had been residing permanently at Eloor in Ernakuam District within the jurisdiction of Family Court, Ernakuam. 3. The revision petitioner/husband raised a preliminary objection contending, inter alia, that the said application could not be entertained by the Family Court. According to him such an application ought to have been filed before the same court which passed the original order under Section 125 of the Code. 4. The Family Court repelled the above contention and held that the application was maintainable. The said order is under challenge in this revision petition. 5. It is contended by the learned counsel that an application for enhancement of maintenance u/s 127 of the Code has to be preferred by the party seeking such enhancement or alteration before the same court which passed the original order. He submits that a proceeding under Section 127 of the Code is a continuation of the original proceeding under Section 125 and therefore only the same court which passed the earlier order can deal with an application for alteration or enhancement. Yet another defect pointed out by the petitioner is that the applicant/wife had not produced the copy of the RPFC.26/2003. 3 earlier order along with her application and therefore it ought to have been rejected by the Family Court at the threshold itself. Are the above contentions legally tenable? 6. It may be noticed that u/s 125 of the Code, the court of a judicial Magistrate of First Class within whose jurisdiction the husband or the former husband is, or where he or his wife resides or where he last resided with his wife, may order the husband to pay maintenance to his wife who is unable to maintain herself or his legitimate or illegitimate minor child whether married or not and unable to maintain itself. Section 127 of the Code deals with the power of the court to alter or modify the order of maintenance in changed circumstances. Section 127 reads thus: “127. Alteration in allowance:--(1) On proof of a change in the circumstances of any person receiving under section 125 a monthly allowance for the maintenance or interim maintenance, or ordered under the same section to pay a monthly allowance for the maintenance, or interim maintenance, to his wife, child, father or mother, as the case may be, the Magistrate may make such alteration, as he thinks fit, in the allowance for the maintenance or the interim maintenance, as the case may be. RPFC.26/2003. 4 (2) Where it appears to the Magistrate that, in consequence of any decision of a competent Civil Court, any order made under section 125 should be cancelled or varied, he shall cancel the order or, as the case may be, vary the same accordingly. (3) Where any order has been made under section 125 in favour of a woman who has been divorced by, or has obtained a divorce from, her husband, the Magistrate shall, if he is satisfied that-- (a) the woman has, after the date of such divorce, remarried, cancel such order as from the date of her remarriage; (b) the woman has been divorced by her husband and that she has received, whether before or after the date of the said order, the whole of the sum, which, under any customary or personal law applicable to the parties, was payable on such divorce, cancel such order-- (i) in the case where such sum was paid before such order, from the date on which such order was made, (ii) in any other case, from the date of expiry of the period, if any, for which maintenance has been actually paid by the husband to the woman; (c) the woman has obtained a divorce from her husband and that she had voluntarily surrendered her right to maintenance or interim maintenance, as the case may be after her divorce, cancel the order from the date thereof. (4) At the time of making any decree for the recovery of any maintenance or dowry by any person, to whom monthly allowance for the maintenance and interim RPFC.26/2003. 5 maintenance or any of them has been ordered to be paid under section 125, the Civil Court shall take into account the sum which has been paid to, or recovered by, such person as monthly allowance for the maintenance and interim maintenance or any of them, as the case may be, in pursuance of the said order. 7. A perusal of the provisions contained in sub-section (1) extracted above, will show that the Magistrate may make such alteration as he thinks fit in the allowance for maintenance or interim maintenance awarded under Section 125, on proof of a change in the circumstances of any person receiving such monthly allowance. Sub- section (2) of Section 127 postulates that the Magistrate shall cancel or vary an order of maintenance passed under Section 125 if it appears that consequent to the decision of a competent civil court, the said order of maintenance is liable to be varied. Sub-sections (3) and (4) contemplate or envisage certain other contingencies and situations which may warrant alteration or variation of the order of maintenance. 8. It is contended by learned counsel for the petitioner that “the Magistrate” referred to in subsections 1 to 3 has to be read and understood as the same court which had passed the original RPFC.26/2003. 6 order of maintenance. Any alteration or variation of the original order can be made only by the same Magistrate or court, as otherwise there will be no meaning in incorporating such a provision in the Code, it is contended. 9. I am afraid the above contention is totally misconceived and untenable. By no stretch of imagination can it be said that only the same court which had awarded maintenance under Section 125 shall have the competence and jurisdiction to alter or vary the original order passed earlier. Such a preposterous interpretation will not only do violence to the statutory mandates contained in Chapter IX of the Code, but it will also tend to defeat the laudable object sought to be achieved by the legislature. It may be remembered that the provisions contained in Chapter IX are intended to ameliorate the sufferings of destitute wives, children and parents. If a pedantic view is to be adopted while interpreting such a welfare piece of legislation, its very purpose will be negated. 10. I am also unable to accept the contention raised by the petitioner that any proceeding under Section 127 is a continuation of an earlier proceeding under Section 125 of the Code and therefore an RPFC.26/2003. 7 order awarding maintenance can be altered only by the same court which granted it. It may become inevitable to the beneficiary of an order under Section 125 to seek its alteration or modification at a later stage, in certain changed circumstances. When such a contingency arises, the party seeking alteration (especially if it is a destitute woman as in this case) cannot be denied easy access to justice by insisting that she should approach the same court which passed the earlier order. If by force of circumstances either the husband or the wife happens to shift his/her residence to some other place, an application under Section 127 can be filed before any court of competent jurisdiction as provided under Section 126 of the Code which reads thus: S. 126. Procedure- (1) Proceedings under Section 125 may be taken against any person in any district- (a) where he is, or (b) where he or his wife resides, or (c ) where he last resided with his wife, or as the case may be, with the mother of the illegitimate child. (2) All evidence to such proceedings shall be taken in the presence of the person against whom an order for payment of maintenance is proposed to be made, or, when his personal attendance is dispensed with in the presence of his pleader, and shall be recorded in the manner prescribed for summons-cases: RPFC.26/2003. 8 Provided that if the Magistrate is satisfied that the person against whom an order for payment of maintenance is proposed to be made is wilfully avoiding service, or wilfully neglecting to attend the Court, the Magistrate may proceed to hear and determine the case ex parte and any order so made may be set aside for good cause shown on an application made within three months from the date thereof subject to such terms including terms as to payment of costs to the opposite party as the Magistrate may think just and proper. (3) The Court in dealing with applications under Section 125 shall have power to make such order as to costs as may be just.” 11. In my view Section 127 cannot be read in isolation from Section 126. Though, for a limited and technical purpose, it can be said that a proceeding under Section 127 is the continuation of an earlier proceeding under Section 125, the scope and ambit of Section 127 are wide enough to confer jurisdiction to any competent court, to alter or modify the original order passed by any other court under Section 125 subject, of course, to the procedural and jurisdictional parameters or restrictions contemplated both under Sections 126 and 127 of the Code. 12. It is true that Section 126 of the Code refers only to a proceeding under Section 127. But still, the procedure prescribed in RPFC.26/2003. 9 that section will have to be read and understood to be applicable to the proceedings under Section 127 of the Code as well. Such a purposive and meaningful interpretation will only subserve the legislative intent and purport. More importantly, there is nothing in Section 127 which will indicate that the Magistrate exercising jurisdiction thereunder is in any way denuded of the power to decide the issue as a court of original jurisdiction. 13. Learned counsel for the petitioner has invited my attention to a decision of the Rajasthan High Court in Rajkumar v. Shantha Bai reported in 2002 Crl.L.J. 2894. In the above case the husband had challenged an order passed by the Sessions Court enhancing/modifying the amount of maintenance awarded by the trial court to his wife and minor child. The additional Chief Judicial Magistrate had awarded monthly maintenance at the rate of Rs.250/- to the wife and Rs.150/- each for the two children with effect from the date of order. 14. The adequacy of the award of maintenance was challenged by the wife before the Sessions Court in a revision petition. Learned Sessions Judge modified and enhanced the award and directed the husband to pay a monthly allowance of Rs.400/- to his wife and RPFC.26/2003. 10 Rs.250/- each to the two children. 15. The learned Judge of the Rajasthan High Court, before whom the revision petition preferred by the husband came up for consideration, took the view that the Sessions Court was not competent to alter or modify the award of maintenance granted by the Magistrate. The learned Judge took the view that the order passed by the Sessions Court was an alteration or modification coming within the ambit of Section 127. According to the learned Judge, if an alteration or modification of an order passed under section 125 had to be made, it could have been done only by the same court which had passed the order under Section 125. The reasoning of the learned Judge, with due respect, cannot be accepted as a correct interpretation of the relevant provisions of the Code. The reasoning given by the learned Judge is extracted hereunder: “ 13. A reading of S.126 Cr.P.C would show that it provides for procedure and the jurisdiction of the Court where an application under S.125 Cr.P.C could be filed. Section 127 Cr.P.C which is for alteration in the amount is completely different and for this S.126 Cr.P.C has no application. Section 127(1) Cr.P.C provides a proof of change in the RPFC.26/2003. 11 circumstances of any person receiving under S.125 a monthly allowance, or ordered under the same section to pay a monthly allowance to his wife, child, father or mother, as the case may be, the Magistrate may make such alteration in the allowance as he thinks fit. The words “the Magistrate” would mean the Magistrate who has passed the first order of maintenance because court is strengthened in this interpretation by the fact that S.128 Cr.P.C which is the section for enforcement order of maintenance specifically provides that such petition under S.125 Cr.P.C may be presented before “any Magistrate”. Therefore, in these circumstances, the petition under S.127 Cr.P.C will have to be filed before the Magistrate who has passed the first order of maintenance. Similar view has been taken by Andhra Pradesh High Court in the case of G.Balraj v. Smt.Mallamma reported in 1984 Cr.L.J. 1170. 14. Thus, the impugned judgment passed by the learned Additional Sessions Judge No.2 by which he enhanced the maintenance amount awarded to the respondent becomes per se illegal and cannot be sustained and is liable to be set aside.” 16. Though learned counsel for the petitioner contended that the reasoning of the learned Judge of the Rajasthan High Court in the RPFC.26/2003. 12 decision cited supra is squarely applicable in this case, I have no hesitation to repel the said contention. Apparently, what had been challenged before the learned single Judge was the revisional order passed by the Sessions Court seeking enhancement of the award passed by the Magistrate under Section 125. Evidently the order impugned before the High Court was not one passed under Section 127 of the Code. Even assuming so, I am not persuaded to subscribe to the view taken by the learned Judge in the above decision. 17. The next contention raised by the petitioner is that since the respondent/applicant had not produced a copy of the earlier order passed by the Magistrate under Section 125 along with her application for alteration, the court below ought not to have entertained the application at all. It is contended that a proper adjudication would be possible only if the said order had been produced. But the above defect can be cured if either of the parties produces the copy of the earlier order in the course of the proceedings. Therefore, the above contention is also repelled. 18. To conclude, it is held that an application under Section 127 of the Code need not necessarily be filed before the same court which RPFC.26/2003. 13 passed the original order under section 125. An application under Section 127 of the Code can be filed before any court of competent jurisdiction as provided under section 126 of the Code depending on the territorial jurisdiction which governs the parties. Even assuming that an application under section 127 of the Code is a continuation of the original lis initiated u/s 125 there can be no doubt that for all procedural and legal purposes the subsequent proceeding has to be, and can always be, dealt with by a competent court of jurisdiction in consonance with the provisions contained in Section 126 of the Code. 19. It is revealed from the records that the applicant is a heart patient who is in her late 60's. Her two grown up children are living separately . She was awarded only Rs.100/- per month way back in the year 1977. The present application was filed by her in the year 2001 seeking enhancement of the amount to Rs.500/- per month. She specifically averred in the application that she has her permanent residence now at Eloor in Ernakulam District within the jurisdiction of Family Court, Ernakulam. This contention is not seen to have been controverted. Therefore the said court has jurisdiction to entertain the application filed by the respondent/applicant for enhancement under RPFC.26/2003. 14 Section 127. In that view of the matter, there is no illegality in the order passed by the court below. The contentions raised by the petitioner are wholly misconceived and untenable. Revision Petition fails and it is accordingly dismissed. A.K. Basheer Judge. an. RPFC.26/2003. 15 A.K. BASHEER, J. R.P.(F.C)NO.26 OF 2003 O R D E R 14th February, 2008.