Refusal to accept maintenance cheques does not constitute a change in circumstances under S.127 Cr.P.C.

1. This order shall govern disposal of above mentioned both the revisions as common questions of facts and law are involved and shall stand disposed of by this common order.

2. That, non - applicant Santoshi Dhuri is the wife of applicant - Krishna Kumar Dhuri. In an application filed for maintenance under S.125, Cr.P.C, on the basis of compromise entered into between the parties, the Family Court, by order dated 29.03.2007, granted Rs. 1000/- per month as maintenance allowance to the wife / non - applicant. The said amount was enhanced from Rs. 1000/- to Rs. 1500/- in exercise of power under S.127, Cr.P.C. by order dated 29.09.2010. Thereafter, the present applicant - Husband filed an application under S.127, Cr.P.C. for setting aside the order of maintenance on the ground that non - applicant has refused to accept sixteen cheques sent to her against the amount of maintenance for a period commencing from 21.09.2008 to 01.12.2010 amounting to Rs. 19,500/-, and claimed the said refusal to accept the cheque against the maintenance granted to her amounts to "change in circumstances' within the meaning of sub-section (1) of S.127, Cr.P.C, and as such, order granting maintenance to the wife / non - applicant on 29.03.2007 be set aside.

3. The said application was opposed by the wife / non - applicant stating inter alia that the applicant has failed to demonstrate "change in circumstances' within the meaning of sub-section (1) of S.127 of the Code of Criminal Procedure , therefore the application so filed by the applicant / Husband deserves to be rejected.

4. The family court, by order impugned, partly allowed the application holding that non - applicant / wife has deliberately refused to accept the maintenance amount and thereby, lost her right to get maintenance allowance to the extent of amount sent through cheques, i.e. Rs. 19,100/-, but declined to set aside the order granting maintenance and thus partly allowed and partly rejected the application under sub-section (1) of S.127 Cr.P.C.

5. Criminal Revision No. 84/2012 has been filed by the applicant - Husband questioning the part of order by which his application for setting aside maintenance order in toto has been rejected, whereas Criminal Revision No. 163/2012 has been filed by the non - applicant - Wife, questioning the part of order by which it has been held that she is not entitled for the maintenance amount of Rs. 19,100/- sent through cheque and refused by her to accept. Above - stated both the revisions have been clubbed together and placed for consideration, this is how both the revisions have come up for hearing.

6. Shri Somnath Verma, learned counsel appearing for the applicant - Husband would submit that since the cheques sent against the amount of maintenance have been deliberately refused to accept by the non - applicant / wife, which would show she is able to maintain herself and such an act of his "Wife' would fall within the meaning of "change of circumstances' as enumerated under sub-section (1) S.127, Cr.P.C, and therefore, the order granting maintenance to the non - applicant / wife deserves to be set aside in toto.

7. Shri Sameer Singh, learned counsel appearing for the non - applicant - wife would submit that the non - applicant has never refused to accept the cheques sent to her deliberately, apart from the fact there is no reason to refuse the amount of maintenance and would submit that the applicant has no ground whatsoever to seek annulling of order granting maintenance and the order refusing part of the maintenance amount be set aside while maintaining the other part of impugned order.

8. I have heard the counsel appearing for the parties and perused the order