IMPORTANT POINT
The court established that applications for maintenance under the D.V. Act must be properly categorized, and the Magistrate has the authority to modify maintenance orders based on changed circumstances.

ORDER :

1. The challenge has been given by the wife to the order dated 31.8.2023 passed by the learned Sessions Judge, Aravalli at Modasa in Criminal Appeal no.130 of 2022, whereby the learned Appellate Court has set aside the order dated 6.8.2022 passed in Criminal Misc. Application no.52 of 2018 by the learned JMFC, Malpur.

2. Learned advocate Mr. Smit Vaghela for the applicants submitted that the learned Appellate Court has committed an error by considering the application of the revisionist before the learned Magistrate as under Section 127 of the Code of Criminal Procedure. Learned advocate Mr. Smit Vaghela submitted that the learned Appellate Court has failed to take into consideration that the appeal before the Court was filed under Section 29 of the the Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as “the D.V. Act”) and such appeal would be entertained only if the orders are passed under the D.V. Act. Learned advocate Mr. Smit Vaghela submitted that the order passed by the learned JMFC was in connection with the wife and two minor children for whom the present respondent no.1 has failed to maintain them. Advocate Mr. Vaghela submitted that the issue was raised before the learned JMFC contending that the application was moved under Section 127 of the Cr.P.C. and the said objection raised has been dealt with by the learned Magistrate in detail concluding that it is an application under Section 25(2) of the Act. Advocate Mr. Vaghela submitted that the learned Appellate Court has failed to deal with the reasons given by the learned JMFC and only on the basis of the label on the petition and in the judgment, the learned Appellate Court has set aside the order passed by the learned JMFC considering it as an application under Section 127 of the Cr.P.C. Advocate Mr. Vaghela submitted that the learned Appellate Court was required to read the subject of the judgment where it has been very clearly and categorically noted that the application is under Section 25(2) of the Act.

2.1 Advocate Mr. Vaghela further stated that a purshis was filed at Exh.25 to verify this fact and submitted that the learned JMFC has noted the fact of Exh.25 and has rejected the contentions raised by the respondent no.1. Mr. Vaghela further referred to the operative order of the learned JMFC to submit that the order has been passed under Section 25(2) of the Act which the learned Magistrate is entitled to do so.

3. Countering the arguments, Ms. Raksha Khated, learned advocate for the respondent no.1 has submitted that it was brought to the notice of the learned Appellate Court by the respondent no.1 that the application being Criminal Misc. Application no. 52 of 2018 was moved by the wife under Section 127 of the Cr.P.C. for enhancement of the maintenance amount awarded. In D.V. Criminal Misc. Application no. 37 of 2014, husband contested the case by filing the written objection vide Exh.12 denying the allegation and has categorically contended that the application was filed under Section 127 of the Cr.P.C. which is against the provisions of law and was not maintainable. Learned advocate Ms. Khated submitted that the learned Appellate Court has dealt with the grounds raised and by relying upon the judgment of the High Court of Karnataka, Dharwad Bench in Criminal Petition no.101378/2019 in the case of Shivanand v. Basavva @ Laxmi, the Court has held that the wife had filed an application under Section 127 of the Cr.P.C. for enhancing the maintenance award under Section 12 of the Act. Thus, placing reliance on the judgment of the Hon’ble Karnataka High Court, it was noted that the order of maintenance under Section 125 of Cr.P.C. is necessary and without there being such an application, Section 127 of Cr.P.C. application is not maintainable and therefore, noted that the order passed by the learned Magistrate enhancing the maintenance under Section 127 of the Cr.P.C. is nullity in the eyes of law and found it to be against the p