Orissa High Court
Prafulla Kumar Panda vs Amari Kumari Panda on 25 September, 1995
Equivalent citations: 1996(1)ALT(CRI)13, 1996CRILJ553, I(1996)DMC402
JUDGMENT R.K. Patra, J.
1. Should a contentions issue as to the meaning and purport of the expression "a change in the circumstances" appearing in Section 127 of the Code of Criminal Procedure (in short 'the Code') be decided in this revision filed by the husband against his wife ? The petitioner who is the husband of the opposite party contends that the validity of the impugned order depends upon the meaning of the above expression and adjudication on the point is called for.
2. These are the facts of the case opposite party filed a petition under Section 125 of the Code against the petitioner on 23.6.1986 in the Court of the Sub- Divisional Judicial Magistrate, Dhenkanal which was registered as Criminal Misc. Case No. 53 of 1986. On the prayer made by her, the learned Magistrate, passed an interim order on 24.6.1986 directing the petitioner to pay a sum of Rs. 200/- as monthly allowance towards her maintenance. After receipt of notice in the case, the petitioner appeared and filed his written statement. He, however, instead of immediately contesting the matter filed Criminal Revision No. 86 of 1986 in the Court of the Sessions Judge, Dhenkanal challenging the aforesaid interim order passed by the learned Magistrate. The learned Sessions Judge by order dated 3.12.1988 dismissed the revision. On 4.5.1989 the petitioner and the opposite party filed a petition of compromise before the learned Magistrate by which the petitioner agreed to make payment of Rs. 125/- as monthly allowance of maintenance to the opposite party payable from May, 1989. He also agreed to pay her a sum of Rs. 2,000/- as arrear allowance of maintenance. The learned Magistrate passed an order on the same day (4.5.1989) which reads as follows:
"Both the parties are present. They have filed a petition for compromise of the case with the condition the O.P. will pay a sum of Rs. 125/- towards monthly maintenance which would be effective from the month of May, 1989 and would be payable within 2nd week of every month. Besides above, the opposite party will pay a sum of Rs. 2,000/- towards arrear does which will be paid on 19.6.1989 positively.
xxx xxx xxx xxx Put up on 15.5.1989 for payment".
Although by the aforesaid order, the matter stood disposed of, a formal order was passed by the learned Magistrate subsequently i.e. on 22.9.1989 saying that "the case has been disposed of on compromise on 4.5.1989. Hence, it is not necessary to proceed with the present case at present. The petitioner may file petition Under Section 128, Cr.P.C. to realise the maintenance dues if so likes".
3. Subsequently, the opposite party filed a petition on 16.5.1992 under Section 127 of the Code vide Misc. Case No. 95 of 1992 against the petitioner for enhancement of the monthly allowance of maintenance. She alleged in her petition that with the passage of time there has been rise of cost of living index and the monthly allowance of Rs. 125/- is not adequate for her maintenance which should be enhanced to Rs. 500/-. The learned Magistrate took up the mattter for hearing and having found that the petitioner gets monthly salary of Rs. 710/- enhanced the amount of allowance of maintenance from Rs. 125/- to Rs. 200/-per month by his Order dated 25.9.1992. The petitioner being felt aggrieved by the said order has filed the present revision.
4. Despite valid service of notice, the opposite party has not entered her appearance in this matter.
5. Mr. Sahoo raised the following two contentions :
(i) the opposite party is not entitled to any higher allowance because she is bound by the terms and conditions of the previous compromise,
(ii) rise of cost of living index cannot be a ground for increase of allowance is as much as there has been no change in the circumstances of either party who is paying or receiving allowance.
In support of his contentions, the learned Counsel placed reliance on the decisions of Allahabad High Court in Smt. Kastoori Devi v. Sri Chheda Lal Sharma, 1978 Crl.L.J. 703 and decision of Madras High Court in Meenakshi Ammal v. J. Balakrishanan, 1980 Crl.L.J. 1200
6. Both the contentions raised by Mr. Sahoo being interlinked are taken up together for consideration. As already noted, the earlier petition i.e. Criminal Misc. Case No. 53 of 1986 claiming monthly allowance was disposed of by the learned Magistrate on 4.5.1989 on the basis of compromise entered into between the petitioner and opposite party. The said order has been extracted in the preceding paragraph. There is nothing in the order to tie down the opposite party that in no circumstances she can claim enhancement of the monthly allowance of maintenance in future. I have also perused the compromise petition signed by both the parties which was filed before the learned Magistrate on 4.5.1989. There is no mention of any stipulation in the compromise petition that the wife cannot ask for enhancement of the agreed allowance of Rs. 125/- per month in future. In absence of any such restriction, I do not find any legal bar for the opposite party to claim higher allowance of maintenance and the petition of the opposite party for enhancement of allowance cannot be resisted solely on the ground that there exists an order made under Section 125 of the Code on the basis of compromise entered into between the parties.
7. Let me now turn to Section 127(1) of the Code. A bare reading of the said provision leaves no manner of doubt that the Magistrate may make alteration in the allowance on proof of a change in the circumstances of any person receiving a monthly allowance or paying it. The expressions "a change in the circumstances" and "alteration in the allowance" appearing in Section 127(1) of the Code have to be given due weight. It has been held by a learned Single Judge of Madras High Court in A.S. Govindan v. Mrs. Margaret Jayammal, AIR 1950 Madras, 153 that "change in the circumstances" means change in the existence of circumstances and not change in proof of circumstances. The expression "alteration in the allowance" clearly refers to the change in the existence of circumstances necessitating increase or decrease in the amount of allowance.
8. Is there no change in the existence of circumstances of a party with the passage of time when the cost of living goes up ? This question directly came up for consideration before the Bombay High Court in State v. Janakibai, AIR 1956 Bombay 432. A learned Single Judge has held that one of the circumstances which governs award of maintenance obviously is the cost of living and if the cost of living has gone up then there is a change in the circumstances of the wife, which enables her to ask for enhancement of the maintenance. The same view was taken by the Madras High Court in Subbayal v. Muthuswamy, 1986 Crl.L.J. 692. In that case, the wife has granted maintenance in the year 1976 at the rate of Rs. 50/- per month payable by her husband. In 1981, she filed a petition for enhancement of the maintenance to Ra. 200/- per month on the ground of rise in the cost of living index. The Magistrate rejected the petition of the wife by accepting the plea of the husband that there was no change in the circumstances of the parties. A learned Single Judge set aside the order of the Magistrate and accepted the plea of the wife that she was entitled to enhancement of maintenance on account of rise of cost of living index.
9. Now the facts of the case reveal that as per the orders passed by the learned Magistrate in 1989, the Opposite Party was entitled to monthly allowance of Rs. 125/-. The purchasing power which was in 1989 has not remained static. With the time progressing, it has eroded and affected the living standard of opposite party resulting in change in the existence of her circumstances. Accordingly, the grievance of the Opposite Party that the monthly allowance of Rs. 125/- .which was granted to her in the year 1989 is insufficient for her maintenance in 1992 was rightly entertained and accepted by the learned Magistrate.
10. Let me examine if any contrary view was taken in any of the cases cited by Mr. Sahoo. In Meenakshi Ammal (supra) the wife filed an application under Section 127 of the Code for increase in the maintenance allowance on the ground that the source of income of her husband had increased. The learned Magistrate rejected the said application holding that the "change of circumstances" in Section 127 of the Code only points to the changed circumstances of the wife and not to the changed circumstances of the husband. The view taken by the learned Magistrate was held to be wrong by a learned Single Judge of Madras High Court. He held that the plain import of Sub-section (1)of Section 127 is that a provision is made therein for increase or decrease of the allowance consequent on a change in the circumstances of either party at the time of application for alteration. Accordingly, the matter was remitted to the Magistrate for fresh enquiry on the allegation of the wife that the source of income of the husband had increased. I have not been able to appreciate as to how the ratio of that case is applicable to the present case. It was not a case where the wife claimed higher allowance consequent on the rise of the cost of living index.
11. In Smt. Kastoori Devi (supra), the petition for maintenance allowance filed before the Magistrate was disposed of as per the compromise arrived at between the parties. Unlike the case at hand, there was a stipulation in the compromise that the amount will not be enhanced at any time in future. After some years, the wife filed a petition before the Magistrate to raise her amount of maintenance on the ground of rise of the cost of living. The husband contested the matter on the ground that as per the terms of the compromise, the wife was not entitled to claim enhancement of the allowance. The Magistrate over-ruled the objection of the husband and in view of the fact that he possessed sufficient means, the maintenance allowance was increased. The husband challenged the said order in revision before the Sessions Judge who held that the wife was bound by the compromise arrived at and it was not open to her claim any enhancement. Thereafter, the wife carried the matter to the High Court of Allahabad where she contended that clog in the previous compromise that she cannot ask for enhancement of the maintenance allowance defeats the provisions of law regarding maintenance and as such, it renders the agreement unlawful and void. The contentions raised on behalf of the wife did not find favour with the learned Single Judge who held that the restriction in the compromise that the wife shall not ask for higher maintenance in future does not defeat the provision of Section 489 of the Old Code and it is a valid agreement and the parties are bound by it. The ratio of that case cannot be extended to the instant case in as much as in that case there was a clear condition in the compromise that the wife shall not ask for higher amount of maintenance in future and in the present case there is total absence of such condition in the compromise arrived between the petitioner and Opposite Party.
12. In the result, I do not find any merit in this revision which is accordingly dismissed.
Lower Court records may be sent back forthwith.