VITHALRAO DAMODHAR SALVE Vs. SAVITRABAI VITHALRAO SALVE

JUDGEMENT

(1.) AN interesting point has arisen in this criminal application before me in which Mr. Vilas Dhordepatil, the learned Counsel for the petitioner, challenges the order of the Judicial Magistrate First Class, Aurangabad in Criminal Case No. 141 of 1982 passed under Section 127 of the Criminal Procedure Code (for short, the 'Cr.P.C.') in which respondents 1 to 3 through respondent No. 1 claimed enhancement of the maintenance amount granted to them by the J.M.F.C, Shrirampur in the year 1977.

(2.) IT is contended by Mr. Vilas Dhordepatil, the learned Counsel for the petitioner, that the matter was compromised and the respondent No. 1 was granted Rs. 40/ - and respondents Nos. 2 and 3 Rs. 30/ - each, in all Rs. 100/ - for their monthly maintenance. As per the compromise, this amount was being paid by the petitioner to the respondents every month up -to -date .An application came to be filed by the present respondents (respondents 1 to 3) through respondent No. 1, the wife of the petitioner claiming enhanced maintenance at the rate of Rs. 125/ - p.m. for herself and Rs. 100/ -each for the two children i.e. respondents 2 and 3. The J.M.F.C, Aurangabad after notice to the husband and after giving him opportunity of being heard, granted enhanced maintenance at the rate of Rs. 325/ - jointly to all the respondents from the date of petition i.e. from 21 -12 -1983. It is this order of the Judicial Magistrate First Class, Aurangabad dated 21 -12 -1983 which has been challenged before me.

(3.) MR . Vilas Dhordepatil, the learned Counsel for the petitioner, has relied upon a decision of this Court reported in : 1978 MhLJ 393, Vithalrao Marotrao A wadhut vs. Ratnaprabha Awadhut and others decided by M. D. Kambli J. According to the learned Counsel, the application under Section 127 Criminal Procedure Code for enhancement in terms is a sequel to the application under Section 125 Criminal Procedure Code and as such, the forum chosen must be the same as can be chosen by the person who wants the benefit of Section 127 in the same Court where the original application under Section 125 was filed. Relying heavily on the decision of this Court in Vithalrao s case, Mr. Vilas Dhordepatil argued that the principles of res judicata would apply to the present application under Section 127 and the Aurangabad Court will have no jurisdiction to entertain that application.