SANTILATA PRADHAN Vs. MRUTUNJAYA PRADHAN

JUDGEMENT

(1.) IN this application filed under Sections 397 and 401 of the Criminal Procedure Code (for short 'the Code') the petitioner who is the wife of the opposite party, has challenged the order passed by the Sub -Divisional Judicial Magistrate, Athmallik in Criminal Misc. Case No. 79 of 1987, under Section 127 of the Code, reducing the amount of maintenance from Rs. 250/ - to Rs. 25/ -.

(2.) THE gist of the facts relevant for the present proceeding may be stated thus : On the application filed by the petitioner under Section 125 of the Code (Criminal Misc. Case No. 53 of 1982/T.R. No. 60/83) the learned S.D.J.M. passed the order directing the opposite party to pay the petitioner maintenance at Rs. 250/ - per month. The said order was challenged in Criminal Revision No. 30 of 1985. The Learned Sessions Judge confirmed the order and rejected the revision petition filed by the opposite party. His attempt to challenge the order before this Court in Criminal Misc. Case No. 447 of 1986 filed under Section 482 of the Code proved futile and the case was dismissed in limine at the admission stage on 12 -12 -1986. It is relevant to note here that in the application it was stated that subsequent to the order passed under Section 125 of the Code, the wife got employment as a teacher in Anganwadi Primery School and she is drawing salary of Rs. 225/ - per month. Thereafter the application giving rise to the present proceeding was filed by the opposite party under Section 127(1) of the Code with the prayer to modify the order directing payment of maintenance taking into account the subsequent employment of the wife and her income from such employment. Considering the said application, the learned Magistrate reduced the quantum of maintenance to Rs. 25/ -per month after adjusting her monthly salary of Rs. 225/ -. Hence, this revision petition by the wife.

(3.) SUB -section (1) of Section 127 of the Code under the provisions whereof the application was filed by the opposite party provides that 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, 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 rupees on the whole shall not be exceeded. The provision does not lay down the criteria to be taken into account while considering the application under Section 127 of the Code and the ground on which reduction or enhancement of the amount may be made. A change in the circumstance of any person appears to be the sine qua non for vesting power in the Magistrate to deal with the matter regarding alteration of quantum of maintenance. In these circumstances, in my view, it will be reasonable to read Sections 125 and 127 of the Code together since both the sections deal with the same subject matter and one is an off shoot from the other. This position becomes particularly clear since the Magistrate is vested with power both to enhance and reduce the quantum of maintenance as evident from the provisions of Sub -section (1) of Section 127 of the Code. It is therefore necessary that in order to deal with the application filed under Section 127(1) for modification of the order of maintenance, the Magistrate should consider the matter in the light of the criteria which usually weigh with the Court in the proceeding under Section 125. The position is well settled by catena of decisions that in the proceeding under Section 125, the Magistrate is to considered the reasonable requirement of the wife for her proper maintenance considering the standard of living which she was enjoying/would have enjoyed in the house of her husband, the reasonable amount required for her separate maintenance considering the prevailing cost of living, price of essential commodities, etc. and also the income of the husband and income, if any, of the wife. Unless this position is accepted it will lead to a mechanical disposal of the application filed under Section 127 simply on the ground that there has been a change in the circumstance subsequent to passing of order under Section 125. Tested on the principles discussed in the foregoing paragraphs it is patent that the impugned order does not stand scrutiny. The learned Magistrate has deducted the amount of the monthly salary of the wife from the amount of maintenance merely on the finding that her subsequent employment has brought about a change in the circumstances without considering the other relevant matters. It is stated at the Bar that the wife has filed an application under Section 127(1) for enhancement of quantum of maintenance and the said application has not yet been disposed of.