DAMU SRIPATI WAGHMODE Vs. NAGAR DAMU WAGHMODE

JUDGEMENT

(1.) IN this petition, the petitioner seeks setting aside of the order dated 8.1.1993 passed by the Additional sessions Judge, Pandharpur, in Criminal Revision Application No. 122 of 1989. He also prays that the order of the trial Court in Criminal Misc. Application No. 299 of 1988 be restored.

(2.) THE petitioner was married to respondent No. 1 in the year 1975. Respondent No. 1 filed application for maintenance against the petitioner under section 125 of the Code of Criminal Procedure (for short "the Code") being Misc. Application No. 171 of 1979 in the Court of Judicial Magistrate First Class, Pandharpur. Admittedly, the learned Magistrate awarded maintenance at the rate of Rs. 60/- per month to respondent No. 1.

(3.) RESPONDENT No. 1 carried the matter to the Sessions Court at Pandharpur being Criminal Revision Application No. 122 of 1989. Before the learned Sessions Judge, it was urged that the so called compromise was in respect of the arrears of maintenance upto 1. 3.85 and respondent No. 1 had in fact, not surrendered her future rights. The learned Magistrate had not enquired into this matter and he dismissed the application for enhancement on the preliminary point of tenability. The parties were not allowed to adduce evidence. It was also urged that the learned Magistrate did not cancel the original order of maintenance. The same was still valid not having been set aside by any Court and, therefore, respondent No. 1 was entitled to enhanced maintenance. As against this, it was urged by the petitioner that respondent No. 1 had voluntarily surrendered her right of future maintenance and she was not entitled to any maintenance in future. The learned Sessions Judge, upon consideration of the relevant provisions of the Code, came to the conclusion that under Section 127 of the Code, the learned Magistrate had jurisdiction to make an alteration in the maintenance allowance on proof of change in the circumstances. Under Section 127 (2) he has got jurisdiction to cancel the order. But in the present case, he had not exercised the jurisdiction of cancellation of the maintenance order and without cancelling the maintenance order, he held that the application for enhanced maintenance was not tenable. He further observed that, it was obligatory on the part of the learned Magistrate to cancel the order. It was not open for him to dismiss the application for enhancement without cancelling the original order of maintenance. In the opinion of the learned Sessions Judge, there was no compliance of Section 127 (2) of Code and, therefore, the order of the learned Magistrate was illegal. He therefore allowed the Criminal Revision Application, set aside the order of the Judicial Magistrate First Class dismissing the application and remanded the matter to him with a direction to the learned Magistrate to decide the petition afresh in the light of the observations made in the judgment. It is this order dated 8.1.1993, which is challenged in this Court.