PRAKASH AWADHUT KULKARNI Vs. REKHA PRAKASH KULKARNI

JUDGEMENT

(1.) By this Criminal Revision Application the order passed by the learned Joint C.J. & Judicial Magistrate, First Class, Dhule dated April 30, 1982 enhancing the maintenance amount to the respondent-Rekha Prakash Kulkarni, is challenged.

(2.) Few facts leading to this revision application are : That the petitioner and the respondent got married on December 24, 1974. It appears that for some time they could smoothly go on with their marital relations. There was registered agreement of divorce between them, on September 20, 1978. Releasing the futility of the said agreement, the respondent - Rekha filed and application for restitution of conjugal rights in Suit No. H.M.P. No. 7 of 1980. That application was dismissed on September 30, 1980. In the said application it was found by the learned Assistant Judge, that the respondent was much more responsible for the strained relations between the husband and wife. While considering the maintenance or alimony, as the case may be, the learned Assistance Judge found that the grant of maintenance by the Magistrate was sufficient. It is necessary to mention about the application filed by the respondent under section 125 of the Code of Criminal Procedure. The respondent filed the said application under section 125 of the Code of Criminal Procedure, bearing No. 164 of 1976 on October 20,1967. The learned Magistrate on consideration of evidence before him passed an order in favour of the respondent on May 12, 1978 granting her maintenance at the rate of Rs. 80/- per month. During the pendency of those proceedings under section 125, it appears that the petitioner filed an application bearing Suit No. H.M.P. 72 of 1981 for divorce against the respondent. That application was allowed and decree for divorce was granted by the learned District Judge, Dhule by judgment and order dated March 24, 1982. It is thereafter the respondent filed an application under section 127 of the Code of Criminal Procedure on October 27, 1980, bearing No. 161 of 1980, and the same was decided by the learned Judicial Magistrate, First Class, on April 30, 1982, enhancing the maintenance at the rate of Rs. 150/- per month. The legality and correctness of that order is challenged in this criminal revision application.

(3.) Shri B.B. Panse, the learned Counsel appearing in support of this petition, contended that the order enhancing the maintenance in favour of the respondent is illegal on two grounds. Firstly, once the Civil Court has decided the quantum of maintenance in a matrimonial case it is not open to the Magistrate to enhance the compensation contrary to the decision of the Civil Court, and secondly, that there was no change of circumstances which would empower the Magistrate to enhance the amount of maintenance. It is submitted that in an application for restitution of conjugal rights bearing No. 7 of 1980 the Civil Court by judgment and order dated September 30, 1980, held that the order passed by the Magistrate was correct and maintenance at the rate of Rs. 80/- was appropriate and no enhancement was called for. In a divorce petition, bearing Case No. 72 of 1931, the order passed by the Magistrate was considered to be proper and reasonable. It is only within one month after the judgment of the District Judge, in Case No. H.M.P. No. 7 of 1980, the present application under section 127 of the Code of Criminal Procedure was filed and within that short period there cannot be any change of circumstances in order to empower the learned Magistrate to enhance the maintenance amount.