BRIJ RAJ PERSHAD Vs. SHANTA DEVI

JUDGEMENT

(1.) The wife filed an application for maintenance against her husband under Section 488 Cr. P. C. (Old). The Court after contest, granted Rs 30/- per month. Subsequently applications were filed for enhancement from time to time and the amount was enhanced to Rs. 125/. The wife filed an application in M.C. No. 225/87 under Section 127 Cr. P. C. (New Code) for maintenance at the rate of Rs. 500/on the file of the Addl. Chief Metropolitan Magistrate, Hyderabad. In that application, M. C. No. 320/88 was filed alleging that the Court has no jurisdiction as the Order was passed by the 4th City Magistrate, Hyderabad, in M. C. No. 8/61. The Addl. Chiaf Metropolitan Magistrate found that the order of maintenance in M.C.No.8/6l was not the one passed under the Code of 1973 and the Court which passed the said order, i.e., the 4th City Magistrate is no longer in existence and the Court of the Addl. Chief Metropolitan Magistrate has got jurisdiction. The husband filed the present revision petition challenging that Order.

(2.) Sri Padmanabha Reddy contended that the present application filed before the Addl. Chief Metropolitan Magistrate is not maintainable as the Addl. Chief Metropolitan Magistrate is not the "Magistrate" contemplated in Section 127 Cr. P. C. In support of his contention, he relied upon Balraj vs. Maliamma. Tn that case, originally maintenance application was filed before the VI Metropolitan Magistrate in M.C. No. 4/75. That petition was allowed and the husband was ordered to pay maintenance at the rate of Rs.150/- per month. The wife filed M.C.No. 17/83 again under Section 127 Cr. P. C. for enhancement of maintenance before the II Metropolitan Magistrate, Hyderabad. It was in that context that Muktadar, J. has pointed out that the word "Magistrate" would mean the Magistrate who has passed the first Order of Maintenance. The word "Magistrate" used in Sections 125, 126, 127 and 128 was considered. So far as Section 128 Cr. P. C. is concerned, the Order of maintenance can be executed in any Court. If it is a question of enhancement of maintenance as contemplated under Section 127 Cr.P.C. is there, the party has to prove the change in the circumstances of any person, receiving under Section 125 Cr. P. C. 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. Sections 125 and 127 Cr. P. C. are interconnected. Unless and until the Order has been passed under Sec. 125 Cr. P. C. ihe Magistrate is not empowered to consider the application under Section 127 Cr. P. C. even though it was treated as an independent application. The word used "any other Magistrate" in Section 125 Cr.P.C. cannot be taken into consideration. Sec. 126 Cr. P. C. contemplated about the jurisdiction of the Magistrate.

(3.) In the case cited above, the Order passed by the VI Metropolitan Magistrate under Section 125 Cr. P. C. was sought to be modified "by filing an application before the II Metropolitan Magistrate of the same division. When the original Court which passed the Order under Section 125 Cr. P. C. is in existence, the party, if he wants to seek enhancement, has to file the application for enhancement under Section 127 Cr. P. C. before that Magistrate only.