Point of Law: object of Section 126 which provides that the wife is entitled to file application where she resides would be frustrated if narrow interpretation is given by holding that under Section 127 of the Criminal Procedure Code she can file application before the Magistrate who has passed an order under Section 125

JUDGMENT :

1. Rule. Learned Additional Public Prosecutor waives service of notice of Rule for and on behalf of the respondent-State.

2. The present revision application is only confined with regard to the jurisdiction expect whether the Court of Principal Judge (Family Court), Gandhinagar has the jurisdiction to decide the application.

3. In the present revision application, the applicant has, inter alia, prayed for the following reliefs;

“(A) This Honourable Court may be pleased to quash and set aside the judgment and order dated 04.04.2016 passed by the Principal Judge, Family Court, Gandhinagar in Criminal Miscellaneous Application No. 38 of 2013 (old Case No. 793 of 2007).

(B) To call for the record and proceedings of the Family Court in Criminal Miscellaneous Application No. 38 of 2013 (old Case No. 793 of 2007) for effective adjudication in the interest of justice.”

4. By the judgment and order dated 04.04.2016, the Principal Judge, Family Court, Gandhinagar has passed the judgment in Criminal Miscellaneous Application No. 38 of 2013 (Old No. 793 of 2007) filed under Section 127 of the Criminal Procedure Code, 1973 (the code) dismissing the application filed by the applicant for the reason that the same is not maintainable and observed that the applicant should have approached the Court of Chief Judicial Magistrate, First Class, Himmatnagar, who has passed the order under Section 125 of the Code. It is also observed that the aforesaid order was further challenged before the Court of Sessions Judge, Himmatngar and the Sessions Judge, Himmatnagar had decreased an amount of maintenance from Rs.500/- to Rs.250/- and hence, the application, which is filed by the present applicant, who is residing at Gandhinagar would not be maintainable and the aforesaid application is required to be filed before the Court of Himmatnagar.

5. Learned advocate Mr. Shelat appearing for the applicant has invited the attention of this Court to the provisions of Section 126 of the Code and has submitted that the Family Court has fell in error in passing the aforesaid order. He has placed reliance on the judgment of the Coordinate bench of this Court in the case of Kailashben Arvindkumar Joshi, v. Arvindbhai Ratilal Joshi & Anr., 1985 (2) GLR 761. He has submitted that as per the observations made by the Coordinate Bench of this Court, the procedure provided in Section 126 of the Code is the only procedure applicable to the proceedings under Section 127 of the Code and there is no specific bar that the application for enhancement or alteration of maintenance award cannot be filed before the Court where the wife resides. In any set of circumstances, by giving interpretation to the provisions of Section 127 of the Code by holding that for modification or alteration, the wife is entitled to file application where she resides as provided under Section 126 of the Code, no violence is caused to the statutory provisions. Thus, he has submitted that the application filed by the applicant could not have been rejected by the Court of Principal Judge, Family Court, Gandhinagar for the reasons that the same is barred by the jurisdiction.

6. Per contra learned advocate Mr. Chauhan appearing for the respondent No. 1 has submitted that in fact, there is no proof coming on record that the applicant is residing at Gandhinagar on the given address of the present application. He has further invited the attention of this Court to the earlier proceedings filed by the present applicant, wherein her address is shown at Village Pal, Himmatnagar where the marriage has been solemnized.

7. Learned advocate Mr. Chauhan appearing for the respondent No. 1 has invited the attention of this Court to the judgment and decree passed by the Family Court at Banswada, Rajasthan, wherein, by the judgment and decree dated 21.02.1998 passed in Miscellaneous Civil Application No. 6 of 1995, the divorce had been ordered between the applicant and the respondent No.1 and the amount of Rs.500/- has been