Back
2007 Supreme(All) 1740
[2007(6) ADJ 639]
ALLAHABAD HIGH COURT
BEFORE : R.K. RASTOGI, J.
SARVESH KUMAR .......Applicant
Versus
STATE OF U.P. AND OTHERS ......Opposite Parties
(Criminal Misc. Application No. 11938 of 2007, decided on 1st June, 2007)
Counsel :
Raj Kumar Khanna for the Applicant; A.G.A. for the Opposite Parties.
Headnote:Criminal Procedure Code, 1973—Sections 125 and 127—Maintenance—Alteration of—Granted by Family Court to present opposite parties No. 2 and 3—Present applicant moved an application for cancellation of order of maintenance—On ground of charged circumstances—Rejected by Presiding Officer of Court—On ground that such application is maintainable only if it is filed by applicant in proceedings under Section 125 of CrPC seeking maintenance—Held, in terms of Section 127 of CrPC application for alteration of maintenance on charged circumstances—Can be moved by either party—Rejection of application under Section 127, CrPC was erroneous—Rejection order set aside—Matter remanded. [Paras 6, 7 and 8]
Key Points: - The judgment interprets Section 127, Cr.P.C., allowing alteration of maintenance on proof of changed circumstances. (!) (!) - It holds that the application under Section 127 can be moved by either party seeking benefit of changed circumstances, and not exclusively by the original applicant under Section 125. [p_1: 25000195000006] - The order rejecting a Section 127 application on the basis that only the original applicant can file is erroneous; the matter is remanded for fresh disposal on merits after hearing both parties. [p_1: 25000195000007][p_4: 25000195000008]
What is the scope of alteration under Section 127, Cr.P.C. and who may move such an application?
What are the grounds for cancellation or variation of maintenance orders under Section 127, Cr.P.C. in light of changed circumstances?
Can an application under Section 127, Cr.P.C. be filed by a party who was not the original applicant under Section 125, Cr.P.C.?
Hon’ble R.K. Rastogi, J.—This is an application under Section 482 of Cr.P.C. to quash the order dated 17.05.2007 passed by Principal Judge, Family Court, Moradabad in Misc. Case No. 82 of 2007 Sarvesh Kumar v. Smt. Kamini Singh, under Section 127, Cr.P.C.
2. I have heard learned counsel for the applicant and the AGA for the State.
3. Since the point involved in this application is a legal point regarding interpretation of Section 127, Cr.P.C. I am deciding this application under Section 482 Cr.P.C. at the admission stage on merit.
4. The facts relevant for disposal of this application are that opposite parties No. 2 and 3 had filed an application under Section 125, Cr.P.C. against the present applicant in the Court of Principal Judge Family Court, Moradabad, which was registered as Case No. 74/11 of 2003. This case was contested by the present applicant and the learned Principal Judge, Family Court, after hearing both the parties awarded Rs. 2,000/- (two thousand) per month to Opposite Party No. 2 and Rs. 1,000/- (one thousand) per month to Opposite Party No. 3 as maintenance vide his judgment dated 7.12.2006. Thereafter the present applicant filed an application under Section 127, Cr.P.C. against Opposite Party. No. 2 for cancellation of the order for maintenance on the ground of changed circumstances. This application was registered as Case No. 82 of 2007. The learned Presiding Officer of the Court after hearing both the parties rejected the above application vide his order dated 17.5.2007 on the ground that the application under Section 127, Cr.P.C. dated 17.5.2007 could be filed by the applicants of Maintenance Case No. 74 of 2003 and not by Sri Sarvesh Kumar, who was opposite party in the above case.
5. Aggrieved with the above order Sri Sarvesh Kumar has filed this application under Section 482, Cr.P.C.
6. I have heard learned counsel for the applicant as well as learned AGA. Section 127 of the Cr.P.C. runs as under:
“127. Alteration in allowance.—(1) On proof of a change in the circumstances of any person, receiving, under Section 125 a monthly allowance, or ordered under the same Section to pay a monthly allowance to his wife, child, father or mother, as the case may be, the Magistrate may make such alteration in the allowance as he thinks fit :
Provided that if he increases the allowance, the monthly rate of five hundred rupees in the whole shall not be exceeded.
(2) Where it appears to the Magistrate that, in consequence of any decision of a competent Civil Court, any order made under Section 125 should be cancelled or varied, he shall cancel the order or, as the case may be, vary the same accordingly.
(3) Where any order has been made under Section 125 in favour of a woman who has been divorced by, or has obtained a divorce from, her husband, the Magistrate shall, if he is satisfied that—
(a) the woman has, after the date of such divorce, remarried, cancel such order as from the date of her remarriage;
(b) the woman has been divorced by her husband and that she has received, whether before or after the date of the said order, the whole of the sum which, under any customary or personal law applicable to the parties, was payable on such divorce, cancel such order—
(i) in the case where such sum was paid before such order, from the date on which such order was made,
(ii) in any other case, from the date of expiry of the period, if any, for which maintenance has been actually paid by the husband to the woman;
(c) The woman has obtained a divorce from her husband and that she had voluntarily surrendered her rights to maintenance after her divorce, cancel the order from the date thereof.
(4) At the time of making any decree for the recovery of any maintenance or dowry by any person, to whom a monthly allowance has been ordered to be paid under Section 125, the Civil Court shall take into account the sum which has been paid to, or recovered by, such person as monthly allowance in pursuance of the said order.”
7. It would be clea
