Point of Law: Section 127 empowers court to alter maintenance allowance granted on receiving proof regarding change of circumstances.

JUDGMENT :

The petitioner's wife and children, respondents 1 to 4 herein, had approached the Family Court, Mavelikkara by filing MC No.42 of 2016 claiming maintenance allowance under Section 125 of Cr.P.C. As the petitioner failed to appear despite issuance of notice, he was set ex parte and the maintenance case decided as per order dated 30/08/2016, directing the petitioner to pay maintenance allowance at the rate of Rs.4,000/-to each claimant with effect from 16.04.2016.

2. The petitioner having failed to pay maintenance in terms of the order, respondents 1 to 4 filed CMP No.142 of 2019 claiming a total amount of Rs.1,20,000/-towards arrears of maintenance for the period from 30.01.2019 to 30.10.2019. The petitioner filed an `objection to the execution petition contending that, as against the claim for Rs.1,20,000/-, he has already paid an amount of Rs.2,68,607/-. The court below after hearing the parties, dismissed CMP No.142 of 2019, finding that the petitioner had paid Rs.1,15,152/-to the account of the second respondent, which along with other payments made towards education fees and expenses of respondents 2 to 4 totaled Rs.2,68,607/-.

3. On dismissal of CMP No.142 of 2019, respondents 1 to 4 filed Crl.MP No.220 of 2022 seeking review and recall of the order dismissing the execution petition. In the petition for review, respondents contended that the petitioner had not paid any amount towards maintenance allowance and the payments claimed to have been made were towards the educational expenses of the children, more particularly the second respondent, who was pursuing his Engineering Course. The respondents also produced documents to show that the petitioner had received reimbursement for the amount spent for educational expenses of the children. It was also contended that the petitioner was liable to pay maintenance to each respondent separately and the excess amount paid to one of the respondents cannot be taken as a ground for rejecting the claim made by the others. The petitioner filed an objection to the review petition contending that the payment was made in favour of the second respondent based on a joint demand made by all respondents. Further, the order sought to be reviewed being one passed under Section 128 Cr.P.C, the prohibition against review under Section 362 would apply.

4. The Family Court, on careful analysis of records, found that it had committed a mistake by treating the payment of tuition/school fee of respondents 2 to 4 as payment made towards maintenance. Further, the document produced by the respondents to prove receipt of reimbursement of the tuition/school fee paid, was omitted to be considered. Based on these findings, the court below came to the conclusion that there was an error apparent on the face of the order sought to be reviewed. Relying on the decision in Sanjeev Kapoor v. Chandana Kapoor and Others [2020 (2) KLT 267 (SC)], the Supreme Court held that a court passing final order in proceedings under Section 125 Cr.P.C is not rendered functus officio and hence the embargo under Section 362 will not apply. Consequently, the petition was allowed and the order passed in CMP No.142 of 2019, reviewed.

5. Assailing the decision of the Family Court to review its earlier order, Adv.T.Madhu, learned Counsel appearing for the petitioner contended that the court had committed a fundamental flaw by relying on the decision in Sanjeev Kapoor (supra), since that decision was rendered based on the interpretation of Sections 125 and 127, while the review order was passed in execution proceedings under Section 128 Cr.P.C. In Sanjeev Kapoor (supra), the finding that the Family Courts are not rendered functus officio was arrived at based on Section 125 (5), which empowers the courts to cancel the order granting maintenance, if so warranted in the light of subsequent events. The other provision considered was Section 127 which empowers the court to alter the maintenance allowance granted on receiving proof regar