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Kailashben Arvindkumar Joshi Vs. Arvindbhai Ratilal Joshi and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtGujarat High Court
Decided On
Judge
Reported in(1985)2GLR761
AppellantKailashben Arvindkumar Joshi
RespondentArvindbhai Ratilal Joshi and anr.
Cases ReferredG. Balrai v. Malamma
Excerpt:
.....as a necessary consequence that the wife is entitled to file an application for enhancement under section 127 in the district where she resides as per section 126(1)(b). 14. it is further well settled by the series of decisions that the provisions of section 125 of the criminal procedure code are for the welfare of the neglected wives, children and parents and the object is to prevent the harassment and that provisions should be construed liberally. the point must be clearly understood that the scheme of the complex of provisions in chap......enhancement of maintenance under section 127(1) of the code is maintainable in the district where wife resides or whether it is maintainable only before the court which passed the order of maintenance under section 125 of the code.6. section 125 of the code prescribes who can file an application for maintenance. in which set of circumstances the maintenance should or should not be awarded and from which date it should be awarded. section 126 of the code provides for procedure of deciding the maintenance application.the said section reads as under:126. procedure:(1) proceedings under section 125 may be taken against any person in any district(a) where he is, or (b) where he or his wife resides, or(c) where he last resided with his wife, or as the case may be, with the mother of the.....
Judgment:

M.B. Shah, J.

1. Being aggrieved and dissatisfied by the judgment and order dated 17th August, 1984 passed by the Metropolitan Magistrate (Court No. 17), Ahmedabad in Miscellaneous Criminal Application No. 37 of 1984 the petitioner has filed this Revision Application.

2. It is the case of the petitioner-wife that the Judicial Magistrate First Class. Mehmedabad had passed an order in her favour under Section 488 of the Criminal Procedure Code (Old) and had awarded maintenance at the rate of Rs. 110/ - per month. She is residing at Ahmedabad, but she was compelled to file application for maintenance before the Judicial Magistrate First Class at Mehmedabad, District Kaira because her husband was residing at Mehmedabad. After the amendment of the Criminal Procedure Code under Section 126 of the Code she is entitled to file an application for maintenance where she is residing. She. therefore, filed Miscellaneous Criminal Application No. 37 of 1984 before the Metropolitan Magistrate at Ahmedabad under Section 127 of the Code for enhancement of maintenance because of change of circumstances, increase in price and increase in income of opponent No. 1.

3. Opponent No. 1 objected to the said application by filing an application exhibit 3 wherein he contended that the Court at Ahmedabad had no jurisdiction to deal with the said matter. The said contention of opponent No. 1 was upheld by Metropolitan Magistrate (Court No. 17) by referring to A.I.R. Commentaries on Criminal Procedure Code wherein it is mentioned that the maintenance application for enhancement was not maintainable in any other Court except the Court which passed the said order. It should be noted that he has not discussed any decision. Against the said judgment and order the petitioner has filed this Revision Application.

4. Rule was issued to the other side. Opponent No. 1 remained present on one date, subsequently he remained absent. Thereafter as the question of law was required to be decided the learned advocate Shri A. D. Shah was asked to appear as Amicus Curiae on behalf of Opponent No. 1.

5. The question which requires determination in this case is whether the application for enhancement of maintenance under Section 127(1) of the Code is maintainable in the district where wife resides or whether it is maintainable only before the Court which passed the order of maintenance under Section 125 of the Code.

6. Section 125 of the Code prescribes who can file an application for maintenance. in which set of circumstances the maintenance should or should not be awarded and from which date it should be awarded. Section 126 of the Code provides for procedure of deciding the maintenance application.

The said section reads as under:

126. Procedure:

(1) Proceedings under Section 125 may be taken against any person in any district(a) where he is, or (b) where he or his wife resides, or

(c) where he last resided with his wife, or as the case may be, with the mother of the illegitimate child.

(2) All evidence in such proceedings shall be taken in the presence of the person against whom an order for payment of maintenance is proposed to be made, or, when his personal attendance is dispensed with, in the presence of his pleader, and shall be recorded in the manner prescribed for summons-cases:

Provided that if the Magistrate is satisfied that the person against whom an order for payment of maintenance is proposed to be made is wilfully avoiding service, or wilfully neglecting to attend the Court, the Magistrate may proceed to hear and determine the case ex parte and any order so made may be set aside for good cause shown on an application made within three months from the date thereof subject to such terms including terms as to payment of costs to the opposite party as the Magistrate may think just and proper.

(3) The Court in dealing with applications under Section 125 shall have the power to make such order as to costs as may be just.

This Section 126 in terms provides that the wife is entitled to file application at the place where she resides. Prior to the amendment of the Code under Section 488(8) wife was not entitled to file application for maintenance where she resided and to obviate harassment and difficulties to the wife Section 126 provides for it.

7. The objects and reasons for amendment of Section 488 as recommended by the Law Commission are as under:

Under Sub-section (8), the place where the wife resides after desertion by the husband is not material as regards the venue of the proceedings, though the place where the husband resides even temporarily is relevant; often deserted wives are compelled to live with their relative far away from the place where the husband and wife last resided together. They would be put to great harassment and expenditure Unless the venue of the proceedings is enlarged so as to include the place where they may be residing on the date of the application. 'With reference to Sub-section (8) there is the following controversy. Is it sufficient if the husband resides in the district in which the proceedings are instituted must itself be one having jurisdiction over the place where the husband resides. The Bombay view is that a proceeding under Section 488 instituted in any competent Court within the district in which the husband resides, or is, or in which he last resided with his wife. This is also the Patna view and Kerala view. The Madras High Court has, however, taken a different view. In our opinion the Bombay view is correct, as the wording of the subsection does not seem to justify the addition of any further restriction. We think the language is clear and needs no amendment on this point.

Now from these objects and reasons it is clear that to avoid the harassment to the deserted wives who are compelled to live with their relatives far away from the place where the wife and husband last resided together and also the expenditure, under Section 126(1)(b) it is provided that the wife is entitled to file an application where she resides. The aforesaid quotation, further says that the Bombay High Court has taken the view that the proceedings under Section 488 can be instituted in any competent Court within the district in which the husband resides and it was not necessary that the application should be filed only before the Magistrate at the place where the husband resides and the view of the Bombay High Court was also approved by the Law Commission by observing that the wording of sub-section does not seem to justify the addition of any further restriction and the language is clear and needs no amendment on that point.

8. Section 127 provides that the application for alteration in the allowance can be filed by the wife, child, father or the mother. Sub-section (2) provides that the Magistrate may cancel or vary any order under Section 125 in consequence of any decision of a competent civil court. Sub-section (3) provides that the order under Section 125 can be cancelled in certain set of circumstances such as divorce or remarriage. Sub-section (4) provides that the civil court shall take into account the sum which has been paid to or recovered by way or maintenance.

9. Section 128 provides that a copy of the order of maintenance shall be given without payment to the person in whose favour the order is made and such order can be enforced by any Magistrate in any place where the person against whom it is made may be, on such Magistrate being satisfied as to the identity of the parties and the non-payment of the allowances due. Section 128, therefore, empowers that even if the order is passed by any Magistrate the maintenance order can be enforced by the Magistrate in a place where the person against whom it is made, is found. So far as the execution is concerned there is no restriction and it empowers any Magistrate to execute the said order wherever the person against whom it is made resides. Therefore, the limited question is whether under Section 127 an application can be filed before the Magistrate who had not passed maintenance order under Section 125.

10. As stated above under Section 128 of the Code any Magistrate is entitled to execute the award of maintenance and as such there is no restriction that execution application could be filed only before the Magistrate who passed the said order. In the case of In Re: Kalavantibai reported in : AIR1953Bom366 the Bombay High Court has interpreted the provisions of Sections 488 and 490 of the Criminal Procedure Code and held that even in an execution application under Section 489 the Magistrate is entitled to enhance or alter the maintenance amount on proof of change in the circumstances of any person receiving the maintenance. The Court further observed as under:

If in the consideration of an application under Section 490 the Magistrate is satisfied that there has been a change of circumstances which justifies him in exercising his jurisdiction under Section 489. in my view, it is open to him to modify the order after taking into account the change of circumstances and to award such maintenance as may be just. I am unable to accept the view of the learned Magistrate that once one of the dependants for whose benefit the order was passed died the whole order must be deemed to be vacated. If the jurisdiction to modify or amend the order in view of the change of circumstances be granted, it is difficult to understand why in the case where a consolidated order has been passed, death of one of the beneficiaries may not be regarded as a change of circumstances inviting the exercise of the jurisdiction under Section 489.

In my view there is no justifiable reason for holding that the application for enhancement would be maintainable Only before the Magistrate who passed the said order. Under Section 127 of the Code there is no specific bar laying down that the application under Section 127 would be maintainable only before the Magistrate who passed the said order.

11. There is also no reason for holding that the word 'Magistrate' used in Section 127 should be interpreted narrowly by holding that the Magistrate who has decided the application under Section 125 only would have jurisdiction to decide the application under Section 127.

12. As stated above the object of amending Section 488(8) is to see that there is no harassment and expenditure to the wives who are compelled to live with their relatives far away from the place where they last resided together with their husbands. If narrower meaning is given by holding that the venue of enhancement application would be the Court which pasted the award of maintenance under Section 125, the object of the amendment would be frustrated.

13. Further under Section 127 no other procedure is prescribed for deciding the application which may be filed for alteration or enhancement, or cancellation of maintenance order. Chapter IX which consists of four sections which provides for complete procedure for deciding maintenance application nowhere provides that under Section 127 the Magistrate is not required to follow the procedure prescribed under Section 126. While deciding the application under Section 127 the Magistrate is, therefore, required to follow the procedure prescribed under Section 126 and once it is held that the Magistrate is required to follow the procedure prescribed under Section 126 it would follow as a necessary consequence that the wife is entitled to file an application for enhancement under Section 127 in the district where she resides as per Section 126(1)(b).

14. It is further well settled by the series of decisions that the provisions of Section 125 of the Criminal Procedure Code are for the welfare of the neglected wives, children and parents and the object is to prevent the harassment and that provisions should be construed liberally.

15. In the case of Bai Tahira v. Ali Hussain Fissalli reported in : 1979CriLJ151 the Court has held as under:

The point must be clearly understood that the scheme of the complex of provisions in Chap. IX has a social purpose. Ill-used wives and desperate divorcees shall not be driven to material and moral dereliction to seek sanctuary in the streets. This traumatic horror animates the amplitude of Section 127. Where the husband, by customary payment at the time of divorce, has adequately provided for the divorcee, a subsequent series of recurrent doles is contra indicated and the husband liberated. This is the teleological interpretation, the sociological decoding of the text of Section 127. The key note thought is adequacy of payment which will take reasonable care of her maintenance.

The Court, has further held that. no construction which leads to frustration of the statutory project can secure validation if the court is to pay true homage to the Constitution. The Court also observed that the law is dynamic and its meaning cannot be pedantic but purposeful.

16. In the case of Sirajmohmedkhan v. Hafizunnisa Yasinkhan reported in A.I.R. 1981 Supreme Court at page 1972, while considering the provisions of Section 125 of the Code, the Supreme Court made the following observations:

Moreover, the Madras decision as also the earlier decision seem to have followed the outmoded and antiquated view that the object of Section 488 was to provide an effective and summary remedy to provide for appropriate food, clothing and lodging for a wife. This concept has now become completely outdated and absolutely archaic. After the International Year of Women when all the important countries of the world are trying to give the fair sex their rightful place in society and are working for the complete emancipation of women by breaking the old shackles and bondage in which they were involved, it is difficult to accept a contention that the salutary provisions of the Code are merely meant to provide a wife merely with food, clothing and lodging as if she is only a chattel and has to depend on the sweet will and mercy of the husband.

Therefore, the object of Section 126 which provides that the wife is entitled to file application where she resides would be frustrated if narrow interpretation is given by holding that under Section 127 of the Criminal Procedure Code she can file application before the Magistrate who has passed an order under Section 125. In this set of circumstances if the said Section 127 is liberally construed without any violence to the language of the section, it cannot be said that under Section 127 of the Code the application is not maintainable before the Magistrate where woman resides.

17. The learned advocate for opponent No. 1 however, relied upon a decision of the Bombay High Court in the case of Dayanoba v. Housabai reported in 1983 (1) Cri. L.J. at page 562 wherein the Court has observed that under Section 127 of the Code application for alteration in the order of maintenance ought to be made to the same Magistrate, who had passed the order of maintenance as far as possible. No reason is given by the learned Judge in arriving at the said conclusion. The learned Judge has used the phrase 'as far as possible' which would indicate that in certain cases the application before the other Magistrate is also maintainable.

18. The learned advocate for opponent No. 1 further relied upon the decision of the Bombay High Court in the case of Vithalrao v. Ratnaprabha reported in 1978 Cr. L.J. at page 1406 where the Court has observed as under:

19. A bare look at this provision will show that the Magistrate contemplated by Section 127 of the Code is the Magistrate who passed initial order. Obviously, the effect of alteration in the allowance made under this provision will be to modify the earlier order. As I have indicated above, another Magistrate having co-extensive jurisdiction would not be able to pass an order which would have the effect of modifying the earlier order passed by another Magistrate. The reliance placed by the learned Magistrate upon the provisions of Sections 126 and 127 of the Code for arriving at the conclusion that second application by the non- applicants is maintainable is obviously erroneous.

19. Here also the only reason given by the Court is that another Magistrate having co-extensive jurisdiction would not be able to pass an order which would have the effect of modifying the earlier order passed by another Magistrate. With respect in my view, it is difficult to agree with the said reasoning given by the learned Judge. Normally in enhancement application the Magistrate would be required to consider the change of circumstances and whether the income of the person against whom the order under Section 125 is passed has increased or not and it cannot be said that these questions cannot be decided by another. Magistrate of competent jurisdiction. In any set of circumstances the modification or alteration in the order would normally be after a lapse of some time and it cannot be presumed that the same Magistrate would be presiding over the said Court after the lapse of that much time.

20. The learned advocate for opponent No. 1 has also relied upon the decision the case of G. Balrai v. Malamma reported in 1984 Cr. L.J. at page 1170 here the Court has held that Section 127 of the Code which is for alteration in the amount is completely different and for this Section 126 has no application. The Court held that the words 'the Magistrate' would mean the Magistrate who had passed the first order of maintenance. The Court further held that the interpretation given by it was strengthened by the provisions of Section 128 which is the section for enforcement of the order which specifically provides that such petition may be presented before any Magistrate. As discussed above and as held by the Bombay High Court in A.I.R. 1953 Bombay page 366 (supra), in an application for execution or enforcement of the order under Section 125, the Court has jurisdiction to enhance the maintenance if there is change of circumstances. Apart from this, in my view, as discussed above, there is no provision which provides that the application under Section 127 would be maintainable only before the Magistrate who has passed the order under Section 125 or that Section 126 has no application to it. This would be too narrow interpretation.

21. As discussed above, Section 127 does not provide for any other separate procedure for deciding the application. The procedure provided in Section 126 is the only procedure applicable to the proceedings under Section 127 of the Code. Further there is no specific bar that the application for enhancement or alteration of maintenance award cannot be filed before the Court where the wife resides. In any set of circumstances by giving interpretation to the provisions of Section 127 by holding that for modification or alteration the wife is entitled to file application where she resides as provided under Section 126 of the Code, no violence is caused to the statutory provisions and as this Chapter IX is for the welfare of deserted and neglected wife, children or parents there is no reason to give narrow interpretation to the said provisions as contended.

In the result the Revision Application is allowed. Rule is made absolute. It is directed that the learned Magistrate would decide the application filed by the petitioner as far as possible within three months from the date of the receipt of the writ of this Court.


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