Point of Law: Proceeding under Section 125 of the Cr.P.C. therefore should precede a proceeding under Section 127 of the Cr.P.C.

ORDER :

The petitioner-husband is before this Court praying to quash the order dated 12.06.2019 passed in Crl.R.P.No.14/2019 by the learned Sessions Judge, Dharwad confirming the order passed by the learned Magistrate in Crl.Misc.141/2015 dated 15.10.2018.

2. Heard Miss.Joshna P Dhanave, learned counsel for the petitioner. Respondent is served and unrepresented.

3. Sans details, facts in brief germane for a resolution of the dispute in the lis are as follows:

The petitioner and the respondent are husband and wife. Marriage between them takes place on 13.04.2001. The marital life between the couple appears to have turned sore, pursuant to which, among other proceedings the respondent-wife files a petition in Crl.Misc.No.2/2009 invoking Section 12 of the Protection of Women from Domestic Violence Act, 2005 (‘Act’ for short). The learned Magistrate before whom the miscellaneous case was filed under the Act while entertaining the case awards a maintenance of Rs.1,000/. After invoking the provisions of the Act, the respondent-wife files a petition in Crl.Misc.No.141/2015 invoking Section 127 of the Cr.P.C. for enhancement of the maintenance amount awarded under the Act. The petition is allowed and the respondent-wife is awarded maintenance of Rs.5,000/from the date of the order.

4. Feeling aggrieved by the order passed in Crl.Misc.No.141/2015, the petitioner-husband files Criminal Revision Petition in Crl.R.P.No.14/2019 invoking Section 397 of the Cr.P.C. The learned Sessions Judge dismisses the said Revision Petition by his order dated 12.06.2019 confirming the order passed by the learned Magistrate enhancing maintenance to the wife from Rs.1,000/to Rs.5,000/. It is these two orders that are called in question in the subject petition.

5. The learned counsel appearing for the petitioner-husband Miss. Joshan P Dhanave would vehemently argue and contend that the respondent once having invoked the provisions of the Act could not have filed an application seeking enhancement under Section 127 of the Cr.P.C. The order passed by the learned Magistrate as affirmed by the learned Sessions Judge are orders without jurisdiction. The learned counsel would seek quashment of the said orders.

6. The respondent-wife is served and remains unrepresented.

7. I have given my anxious consideration to the submissions made by the learned counsel appearing for the petitioner and perused the material on record. In furtherance whereof, the only issue that falls for my consideration is, “Whether the maintenance awarded under the Domestic Violence Act can be sought to be enhanced under the Cr.P.C.?”

8. The afore-narrated facts are not in dispute. The respondent-wife invokes Section 12 of the Act seeking reliefs that are available under Section 12. Section 12 reads as follows:

“12. Application to Magistrate.-(1) An aggrieved person or a Protection Officer or any other person on behalf of the aggrieved person may present an application to the Magistrate seeking one or more reliefs under this Act:

Provided that before passing any order on such application, the Magistrate shall take into consideration any domestic incident report received by him from the Protection Officer or the service provider.

(2) The relief sought for under subsection (1) may include a relief for issuance of an order for payment of compensation or damages without prejudice to the right of such person to institute a suit for compensation or damages for the injuries caused by the acts of domestic violence committed by the respondent:

Provided that where a decree for any amount as compensation or damages has been passed by any court in favour of the aggrieved person, the amount, if any, paid or payable in pursuance of the order made by the Magistrate under this Act shall be set off against the amount payable under such decree and the decree shall, notwithstanding anything contained in the Code of Civil Procedure, 1908 (5 of 1908), or any other law for the time being in force, be executable for the balance