VINAYAK GANPAT SALVE Vs. SAU UJWALA V SALVE

JUDGEMENT

(1.) A short but important question which has been referred for decision by the learned Single Judge of this Court is whether the expression "the Magistrate" occurring in section127 of the Criminal Procedure Code contemplates the same Magistrate who had decided the application for maintenance under Section125 of the Code or is it open to make an application under Section127 of the Code to any other Magistrate referred to in Section126 of the Code at the option of the applicant.

(2.) THE above question arises in the following circumstances : THE petitioner-husband had married the respondent no.1 - wife on11th March, 1988 as per Hindu law. From the said marriage a son was born to the couple. As the differences arose between the parties and they were residing separately, the petitioner-husband filed proceedings for restitution of conjugal rights against the wife under the provisions of the Hindu Marriage Act in the Court of Civil Judge, Senior Division and JMFC, Nashik. THE respondent-wife, on the other hand, filed an application for maintenance for herself and her son, being Misc. Application No. 558 of 1993, in the Court of JMFC, Malegaon under Section125 of the Code of Criminal Procedure. Since the proceeding for restitution of conjugal rights filed by the petitioner-husband was pending in the Nashik Court, the application for maintenance filed by the respondent-wife was transferred before the learned Civil Judge, Senior Division and JMFC, Nashik. THE application for maintenance filed by the wife was allowed and the petitioner-husband was directed to pay maintenance at the rate of Rs. 500/- per month. THEreafter the wife filed Criminal Misc. Application No. 8 of 2000 on21-2-2000 in the Court of JMFC, Malegaon for enhancement of maintenance from Rs. 500/- to Rs. 1500/- per month for herself and her son under Section127 (1) of the Code on the ground that the salary of the petitioner had increased from Rs. 5500/- in the year 1993 to Rs. 12,000/- in the year 2000. THE petitioner filed his reply dated11-12-2000 raising the objection that the application for enhancement of maintenance amount was not maintainable in Malegaon Court as the application under Section125 was decided by the Civil Judge Senior Division and JMFC, Nashik and, therefore, the JMFC, Malegaon had no jurisdiction to entertain the said application. THE learned JMFC, Malegaon however by his order dated-23rd August, 2001 held that the Court of JMFC at Malegaon was having jurisdiction as the application under Section125 of the Code was transferred to Nashik Court only because the proceedings for restitution of conjugal rights under the Hindu Marriage Act were pending in the Court of Civil Judge Senior Division and JMFC, Nashik. THE said order was challenged by the petitioner by filing Revision Application No. 157 of 2000 in the Court of the Addl. District and Session Judge at Malegaon. THE revision application was, however, dismissed by the order dated18-10-2001 of the Addl. Sessions Judge, Malegaon observing that the original application for maintenance filed in the Court of JMFC, Malegaon was transferred only on the administrative ground and, therefore, the application for enhancement under Section127 of the Code could be filed in the Court of JMFC, Malegaon. He accordingly confirmed the order of the learned JMFC assuming jurisdiction to hear the application for enhancement of maintenance under Section127 of the Code.

(3.) IN the case of Vithalrao Awadhut Vs. Ratnaprabha Awadhut reported in 1978 Mh. L. J. 393 it was observed that the party claiming enhancement of maintenance has to apply to the same Magistrate who had passed the previous order granted maintenance who had passed the previous order granting maintenance under Section125 of the Code. IN that case the maintenance was granted by the Magistrate at Wardha and the application for enhancement was made by the wife in the Court of Magistrate at Nagpur. The wife having earlier obtained the order from the Court at Wardha made another application again under Section125 of the Code of the JMFC's Court at Nagpur claiming higher amount of maintenance. IN that context it was held that the wife can not file fresh application on the same facts every time she changes her place of residence as the fresh application under Section125 is barred by virtue of res judicata or general principles of res-judicata and the only course open to her was to make an application under Section127 of the Code for enhancement of the maintenance allowance which had to be filed before the same Magistrate who had passed the initial order under Section125 of the Code.