A VENKATRATNAM Vs. A KALAVATHI

JUDGEMENT

(1.) In this criminal revision case arising out of a petition filed u/s. 127(3)(c) Cr. P.C., the petitioner is the husband. The petition was filed for annulment of the order of maintenance of Rs 200/- to the wife on the ground that the wife voluntarily obtained a divorce from the petitioner. The court below negatived the plea of the petitioner and dismissed the application.

(2.) The learned counsel for the petitioner contends that the divorce obtained at the instance of the wife explicitly if not implicitly precludes the wife from claiming maintenance under section 127(3) (c) Cr. PC.

(3.) Section 127 Cr. P.C. envisages the cancellation of the payment of maintenance or variation in the grant of allowance in the circumstances enumerated in the provision. It is necessary to have grips over section 127 Cr. P.C. which is as follows: 127. ( I) On proof of a change in the circumstances of any person, receiving, under section 125 a monthly allowance, or ordered under the same section to pay a monthly allowance to his wife, child, father or mother, as the case may be, the Magistrate may make such alteration in the allowance as he thinks fit: Provided that if he increases, the allowance, the monthly rate of five hundred in 1 he whole shall not be exceeded. (2) Where it appears to the Magistrate that, in consequence of any decision of a competent Civil Court, any order made under section 125 should be cancelled or varied, he shall cancel the order or, as the case may be, vary the same accordingly. (3) Where any order has been made under section 125 in favour of a woman who has been divorced by, or has obtained a divorce from her husband, the Magistrate shall, if he is satisfied that- (a) the woman has, after the date of such divorce, remarried, cancel such order as from the date of her remarriage; (b) the women has been divorced by her husband and that she has received, whether before or after the date of the said order, the whole of the sum which, under any customary or personal law applicable to the parties, was payable on such divorce, cancel such order, (i) in the case where such sum was paid before such order, from the date on which such order was made; (ii) in any other case, from the date of expiry of the period, if any, for which maintenance has been actually paid by the husband to t he woman; (c) the woman has obtained a divorce from her husband and that she had voluntarily surrendered her rights to maintenance after liar divorce, cancel the order from the date thereof. (4) At the time of making any decree for the recovery of any maintenance or dowry by any person, to whom a monthly allowance has been ordered to be paid under section 125, the Civil Court shall take into account the sum which has been paid to, or recovered by, such person as monthly allowance in pursuance of the said order, Section 127 provides for alteration of the maintenance allowance granted under section 125 consequent upon the satisfaction of varied requirements embodied in section 127. Subsections (1) and (2) pertain to alteration of quantum of maintenance in the charged circumstances or cancellation or variation as a sequel to the decision of the Civil Court. Sub section (3) visualises a situation of divorce either at the instance of husband or at the instance of wife as evident from the use of expression when any order has been made under section 125 in favour of a woman who has been divorced by or has obtained a divorce from, her husband and clause (a) is concerned with the cancellation of the order on the happening of the events mentioned therein irrespective of the situation whether divorce is at the instance of a husband or wife. Clause (b) governs the situation where the divorce is at the instance of the husband as evident from prefatory portion namely the woman has been divorced by her husband pause (c) is distinct from clause (b) in view of the prefatory portion the woman has obtained a divorce from her husband thereby intending that the divorce is at the instance of the wife. The language employed in sub-section (3) considered from the perspective of fundamentals of English grammar yields to three situations namely that sub-section (3) envisions the situations of divorce whether at the instance of the husband or the wife and clause (b) visualises a situation where the husband sets in motion the proceedings for divorce and clause (c) envisions a situation where the wife takes initiative for divorce.