Important Point
Wife could get the amount of maintenance modified u/s. 127 Cr.P.C. on basis of earlier order of maintenance on compromise if other conditions were fulfilled.

Arunava Barua, J.—The judgment of the Court was as follows :—

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 main-tenance 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 conside-ration 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. P.C. by the wife against the husband is dis-posed 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 main-tenance also from time to time, that is, Rs. 100 per year, along with other con-ditions in favour of the wife and daugh-ters. 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. P.C. for enhanced maintenance before the Court. It has further been submitted that the learned Additional Sessions Judge has no juris-diction at all to invoke Section 127 Cr.P.C.

5. I have gone through the judg-ment and order passed by the learned Judicial Magistrate, 2nd Court Barasat in Misc. Case No. 526/98 in the procee-ding under Section 127 Cr.P.C. 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 compro-mise no enhancement of maintenance under Section 127 Cr. P.C. is main-tainable and the learned Additional Sessions Judge by his impugned judg-ment 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. 3,000 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 judg-ment and order granting the said enhan-ced 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 maintenance and the learned Magistrate had also relied upon case-laws reported in 1(1999) DMC 5281, wherein it was held that there was no legal bar for alternation in the maintenance allowance already fixed in favour of the wife under Section 125 Cr. P.C. only because the said order was passed on the basis of a compromise petition. The learned Magis-trate also referred to a judgment of this Court reported in 1995 (2) Crimes 207 (Cal.2) wherein it was held that there was nothing in Section 127 which took away the juris-diction 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.P.C. as a bar on an application under Section 127 Cr. P.C. The learned Magis-trate, therefore, was of the opinion that the petitioner wife was entitled to get the am