Rise in the cost of living index is a change in circumstances entitling the wife to enhancement of maintenance under Section 127 of the Code of Criminal Procedure.

R. K. PATRA, J.

( 1 ) SHOULD a contentious issue as to the meaning and purport of the expression "a change in the circumstances" appearing in Section 127 of the Code of Criminal Procedure (in short 'the Code') be decided in this revision filed by the husband against his wife ? The petitioner who is the husband of the opposite party contends that the validity of the impugned order depends upon the meaning of the above expression and adjudication on the point is called for.

( 2 ) THESE are the facts of the case Opposite party filed a petition under Section 126 of the Code against the petitioner on 23-6-1986 in the court of the Sub-divisional Judicial Magistrate, Dhenkanal which was registered as Criminal Misc. Case No. 53 of 1986. On the prayer made by her, the learned Magistrate passed an interim order on 24-6-1986 directing the petitioner to pay a sum of Rs. 200/- as monthly allowance towards her maintenance. After receipt of notice in the case, the petitioner appeared and filed his written statement. He however, instead of immediately contesting the matter filed Criminal Revision No. 86 of 1986 in the court of the Sessions Judge, Dhenkanal challenging the aforesaid interim order passed by the learned Magistrate. The learned Sessions Judge by order dated 3-12-1988 dismissed the revision. On 4-5-1989 the petitioner and the opposite party filed a petition of compromise before the learned Magistrate by which the petitioner agreed to make payment of Rs. 125/- as monthly allowance of maintenance to the opposite partly payable from May, 1989. He also agreed to pay her a sum of Rs. 2,000/- as arrear allowance of maintenance. The learned Magistrate passed an order on the same day (4-5-1989) which reads as follows :"both the parties are present. They have filed a petition for compromise of the case with the condition that O. P. will pay a sum of Rs. 125/- towards monthly maintenance which would be effective from the month of May, 1989 and would be payable within 2nd week of every month. Besides above, the O. P. will pay a sum of Rs. 2,000/- towards arrear dues which will be paid on 19-6-89 positively. xx xx xxput up on 15-5-89 for payment". Although by the aforesaid order, the matter stood disposed of, a formal order was passed by the learned Magistrate subsequently i. e. on 22-9-1989 saying that "the case has been disposed of on compromise on 4-5-1989. Hence, it is not necessary to proceed with the present case at present. The petitioner may file petition u/s. 123 Cr. P. C. to realise the maintenance dues if so likes". Subsequently, the opposite party filed a petition on 16-5-1992 u/s. 127 of the Code vide Misc. Case No. 95 of 1992 against the petitioner for enhancement of the monthly allowance of maintenance. She that with the passage of time there has been rise of cast of living index and the monthly allowance of Rs. 125/- is not adequate for her maintenance which should be enhanced to Rs. 500/ -. The learned Magistrate took up the matter for hearing and having found that the petitioner gets monthly salary of Rs. 710/- enhanced the amount of allowance of maintenance from Rs. 125/- to Rs. 200/- per month by his order dated 25-9-1992. The petitioner being felt aggrieved by the bad order has filed the present revision.

( 3 ) DESPITE valid service of notice, the opposite party has not entered her appearance in this matter.

( 4 ) SHRI Sahoo raised the following two contentions : (i) the opposite party is not entitled to any higher allowance because she is bound by the terms and conditions of the previous compromise, (ii) rise of cost of living index cannot be a ground for increase of allowance inasmuch as there has been no change in the circumstances of either party who is paying or receiving allowance. In support of his contentions, the learned counsel placed reliance on the decisions of Allahabad High Court in Smt. Kastoori Devi v. Sri Chheda Lal Sharma, 1978 Crl LJ 708 and decision of Madras High Court in Meenakshi Ammal v. Balakri