Andhra HC (Pre-Telangana)
Pilli Venkanna vs Pilli Nookalamma & Anr. on 10 September, 1997
Equivalent citations: 1998(2)ALD611, 1998(1)ALT(CRI)199, 1998CRILJ1922, I(1999)DMC61
ORDER
1. This revision is directed against the Order dated 24-11-1995 in Crl.R.P.No.92 of 1994 on the file of the Metropolitan Sessions Judge, Visakhapatnam, modifying the order dated 11-7-1994 in Crl.MP.No.261 of 1988 in M.C.No.41 of 1979 on the file of III Metropolitan Magistrate, Visakhapatnam to the effect that the enhanced maintenance should come into effect from the date of filing of the petition and not from the date of passing the order.
2. The facts in brief resulting in filing of this Revision are as under:
The revision-petitioner herein is the husband of the 1st respondent here (for sake of convenience they are referred as Husband and Wife hereinafter). The first respondent-wife filed M.C.No.41 of 1979 on the file of the III Metropolitan Magistrate, Visakhapalnam, under Section 125 Cr.P.C. claiming maintenance at the rate of Rs. 400/- per month against her husband. After contest, the learned Magistrate allowed the petition and granted maintenance at the rate of Rs. 125/-per month. The wife applied for increase of the said allowance by filing an application under Section 127Cr.P.C. in Crl.M.P.No.261 of 1988. The learned III Metropolitan Magistrate, Visakhapatnam, by his order dated 11-7-1994 allowed that petition and enhanced the maintenance from Rs.125/- per month from the date of that order. It is further ordered that the husband shall pay the enhanced monthly maintenance of Rs.200/-to the wife from the months of July, 1994 onwards, on or before tenth day of each succeeding month. Not satisfied with the enhanced compensation granted at Rs.200/-per month, the wife preferred are vision against that order in Criminal R.P.No.92 of 1994 on the file of the Metropolitan Sessions Judge, Visakhapatnam. Before the learned Sessions Judge, two contentions were raised on behalf of the wife. Firstly the enhanced amount is inadequate and that she is entitled for enhanced maintenance at the rate of Rs.400/- per month. Secondly the Magistrate ought to have ordered enhancement of the maintenance from the date of her petition instead of from the date of the order. The learned Metropolitan Sessions Judge, considering the evidence on record, held that the wife is not entitled for enhanced maintenance at the rate of RS.4000/-per month as claimed by her, and that enhanced maintenance at the rate of Rs.200/-per month is just and reasonable. But he modified the Order of the Magistrate directing that the enhanced maintenance should be paid from the date of the petition instead of from the date of the order.
3. Aggrieved of that Order, the husband has come up with this revision. Inspite of notice served on the wife in this revision, she neither appeared nor engaged a Counsel on her behalf.
4. The short question which requires determination in this revision petition is, whether the Court has power to order alteration of allowance to be paid with effect from the dale of application seeking alteration or it can order alteration of allowance, only with effect from the date of order?
5. The provisions relating to alteration of allowance of maintenance are found in Section 127 Cr.P.C. which reads as follows:
"127. Alteration in allowance :-(l) On proof of a change in the circumstances of any person, receiving, under Section 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 Provided that if he increases the allowance, the monthly rate of five hundred rupees in the whole shall not be exceeded.
(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 rights to maintenance after her divorce, cancel the order from the dale thereof.
(4) At me time of making any decree for the recovery of any maintenance of dowry by any person to whom a monthly allowance 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 in pursuance of the said order."
This section, on its plain reading, furnishes the grounds on which the Court passing an Order Under Section 125 Cr.PC can modify that order and enhance the maintenance on proof of a change in the circumstances, but such an order for alteration of allowance can be made only from the date of order passed under this Section and not from the date of application seeking alteration. Under sub-clause (2) to Section 125 Cr.PC the Legislature has left it to the discretion of the Magistrate to award maintenance from the date of application for maintenance though normally it shall be payable from the date of the order in the petition. But under Section 127 Cr.PC no such discretion is left to the Magistrate to pass such order in the application seeking alteration of enhanced maintenance, from the date of filing of that application, since the Legislature itself did not provide, under Section 127 Cr.PC that the Magistrate could date back the order or alteration to the date of application. Hence it is not open to the Magistrate or the Revisional Court to exercise such jurisdiction and enhance the compensation from the date of filing of that application. The Courts have to act within the strict limitations set out for the exercise of its jurisdiction and they cannot over step the same on any equitable grounds. I have been fortified in my opinion by the decision of the High Court of Jammu & Kashmir in Bansilal v. Pushpa Devi, 1982 Crl.LJ 1081.
6. In the instant case, the learned Metropolitan Magistrate rightly exercised the jurisdiction and granted enhanced maintenance from the date of his order in the petition seeking enhanced maintenance. But on revision, the learned Metropolitan Sessions Judge modified the Order of the Magistrate and granted enhanced maintenance from the date of that petition. That order of the learned Metropolitan Sessions Judge is contrary to law and the same is liable to be set aside.
7. Accordingly the revision case is allowed. The Order in Crl.R.P.No.92 of 1994 on the file of the Metropolitan Sessions Judge, Visakhapatnam, dated 24-11-1995 is set aside and the Order of the III Metropolitan Magistrate, Visakhapatnam, in Crl.M.P. No.261 of 1988 in M.C.No.41 of 1979 dated 11-07-1994 is confirmed.