The enhancement of maintenance under the Code without prior determination under Section 125 is procedurally illegal and results in nullity.

CORAM : M. M. NERLIKAR, J .

DATE : 23.09.2025 ORAL JUDGMENT :

Heard.

2. Issue Rule, returnable forthwith. Mr. R. D. Hazare, learned counsel waives service for respondent. With consent of learned counsel for the parties, the petition is taken up for final hearing.

3. By way of this petition filed under Articles 226 and 227 of the Constitution of India, the petitioner is challenging the order dated 17.02.2018 passed by the learned Additional Sessions judge, Hinganghat in Cri. (PWDV) Appeal No.6/2017, wherein the appeal under Section 29 of the Protection of Women’s from Domestic Violence Act, 2005 (“D.V. Act”) was partly allowed. The said Court has enhanced the amount and directed to pay a total amount of Rs.6000/- per month from January, 2015 to the wife.

4. Brief facts:-

The marriage of the petitioner-husband and the respondent-wife took place on 15.04.2021. As there were differences between the couple, the petitioner filed the divorce petition before the Civil Judge, Senior Division at Nagpur.

However, the said petition was rejected by an order dated 02.04.2012. Preceeding to same, the respondent-wife filed a complaint under Section 12 of the D.V. Act bearing Misc. Cri. Application No.71/2007. By an order dated 04.09.2009, the learned Judicial Magistrate First Class, at Hinganghat was pleased to allow the said application and directed the petitioner-husband to pay Rs.3000/- per month to the respondent-wife as maintenance. It appears that thereafter the respondent-wife filed an application under Section 127 of the Code of Criminal Procedure (“Code”) for enhancement of maintenance which was awarded in the proceedings of D.V. Act. 5. After hearing the parties, the learned Magistrate at Hinganghat allowed the application of respondent-wife, thereby enhanced the maintenance amount to Rs. 4,000/- per month by an order dated 02.12.2016. However, the respondent-wife again challenged the said order before the learned Sessions Judge, Wardha by filing an appeal bearing No. 01/2016. It appears that as Sessions Court was established in Hinganghat and therefore, appeal of the respondent-wife was transferred to the Hinganghat and was registered as appeal No. 06/2017. After hearing the parties, the District and Sessions Judge, Hinganghat allowed the appeal of respondent-wife and directed to pay Rs.6000/- per month to the respondent-wife by its judgment and order dated 17.02.2018. Against this order, the petitioner has approached this Court.

6. I have heard both the parties. The learned counsel for the petitioner submits that the institution of application No.122/2011 under Section 127 of the Code for grant of enhancement of maintenance which was passed under the D.V. Act itself is illegal and the said procedure was adopted which is unknown to law. He further submits that if the award is passed under the provisions of the D.V. Act, the same award cannot be enhanced under Section 127 of the Code. Not only that the Judicial Magistrate First Class has committed a mistake, but also the learned Additional Sessions Judge at Hinganghat while passing the order in the appeal, has not taken into consideration this fact rendering the said order illegal, hence the order dated 17.02.2018 passed in Appeal No. 06/2017 is required to be quashed and set aside.

7. On the other hand, the learned counsel for the respondent-wife submits that this may be considered as an irregularity and not an illegality as the respondent-wife was not aware of the legal procedure. He further submits that both the provisions under the D.V. Act, so also under the Code are beneficial legislation for the benefit of the wife and t