Calcutta High Court
Shyamal Prosad Halder vs Madhuri Halder And Ors. on 19 November, 2004
Equivalent citations: 2005(3)CHN531
JUDGMENT Arunava Barua, J.
1. This revisional application under Section 227 of the Constitution of India is directed against the order passed by the learned Additional Sessions Judge, 5th Court, Barasat, in Criminal Revision Case No. 556 of 2000.
2. The matter relates to a maintenance proceeding by the wife against the husband. The husband has filed the instant revisional application being aggrieved by the said order of the learned Additional Sessions Judge, 5th Court, Barasat in Criminal Revision Case No. 556 of 2000 dated 19.6.2002.
3. The material point for consideration is whether the alteration of maintenance allowance or enhancement of the same can be made by the Court when the case under Section 125 Cr. PC by the wife against the husband is disposed of on compromise on certain terms including maintenance and regular payment of enhanced maintenance for year to year if the circumstances so demanded.
4. It has been argued on behalf of the applicant husband that Section 127 of the Code of Criminal Procedure cannot be invoked here because by virtue of the agreement between the parties, that is the husband and wife, they have bound themselves to the enhancement of maintenance also from time to time, that is, Rs. 100 per year, along with other conditions in favour of the wife and daughters. It is further argued that the wife accepted it from time to time and, therefore, she must be deemed to have waived her right to maintain a petition under Section 125 Cr. PC for enhanced maintenance before the Court. It has further been submitted that the learned Additional Sessions Judge has no jurisdiction at all to invoke Section 127 Cr. PC.
5. I have gone through the judgment and order passed by the learned Judicial Magistrate, 2nd Court Barasat in Misc. Case No. 526/98 in the proceeding under Section 127 Cr. PC dated 19.9.2000 and also the impugned judgment and order in Criminal Revision No. 556/2000 made against it by the husband before the learned Additional Sessions Judge, 5th Court, Barasat. The learned Courts below, that is, the learned Judicial Magistrate as well as that of learned Additional Sessions Judge, Barasat had dismissed the husband's contention that because of the compromise no enhancement of maintenance under Section 127 Cr. PC is maintainable and the learned Additional Sessions Judge by his impugned judgment and order dated 19.6.2002 upheld the judgment and order passed by the learned Magistrate in the said Criminal Revision whereby in all Rs. 3000/-per month for the wife and her two children was fixed as enhanced maintenance for them. The learned Additional Sessions Judge for adequate reasons found no grounds for interference with the judgment and order granting the said enhanced maintenance in favour of the wife and against the husband and dismissed the said revisional application. And yet, the husband as again moves this Court in revision to set aside the said orders.
6. In the first place, as I have found, the judgment of the learned Courts below was backed by sufficient reasons justifying the enhancement of maintenance and the learned Magistrate had also relied upon case laws reported in (1)1999 DMC 528 (P & B), wherein it was held that there was no legal bar for alteration in the maintenance allowance already fixed in favour of the wife under Section 125 Cr. PC only because the said order was passed on the basis of a compromise petition. The learned Magistrate also referred to a judgment of this Court reported in 1995 (2) Crimes 207 (Cal) wherein it was held that there was nothing in Section 127 which took away the jurisdiction of the Court to modify its own order under Section 125 though it was passed on the basis of the compromise between the parties in an application under Section 125 Cr. PC as a bar on an application under Section 127 Cr. PC. The learned Magistrate, therefore, was of the opinion that the petitioner-wife was entitled to get the amount of maintenance modified under Section 127 Cr. PC on the basis of earlier order of maintenance on compromise, if other conditions were fulfilled. Both the learned Courts below had elaborately discussed whether the other conditions like the financial condition of the wife and her two children, the increased salary and allowances of the husband, the status of the parties, the increase of expenses for the education of the children and so on. There is no patent error of law or miscarriage of justice in the matter of findings and conclusions they arrived at in awarding the said enhanced maintenance in favour of the wife and the children. So this revisional application again before this Court is plainly not maintainable.
7. This Court in an earlier judgment in Manoka Chatterjee v. Swapan Chatterjee, 2002 C Cr. LR (Cal) 577 (Arunava Barua, J.) had already held as follows:--
That a mutual agreement in petitioner's proceeding under Section 13B of the HMA which spells out getting a lump sum amount perpetually binding herself not to claim any further maintenance allowance in the future and that she should withdraw all pending cases in the different Courts was not tenable in law. Section 125 is a piece of social welfare legislation its principal purpose to protect the wife from vagrancy and destitution. Even if the wife binds herself consciously or unconsciously to such an agreement, law has to come to her aid and protect her statutory right to maintenance and also her right to life and live with dignity. Such a position protects not only her interests but also the larger social interests ****** maintenance of a lump sum amount of money cannot be made frozen on time as it is flexible and changes from time to time according to changes of circumstances.
8. I think, that finally settles the matter, so far as the instant revisional application is concerned.
9. Accordingly, there are no merits in the instant revisional application which stand dismissed. The impugned judgment and order passed by the Additional Sessions Judge, 5th Court, Barasat and, for that matter, the judgment and order passed by the learned Judicial Magistrate, 2nd Court, Barasat in Misc. Case No. 526/98 relating to the petition under Section 127 Cr. PC are hereby affirmed.
10. Urgent xerox certified copies of this judgment, if applied for, be made available to the parties, after observing the required formalities.
11. Let a copy of this order please send down to the learned Court below at once.