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G.Balaji Vs. Mallamma & Anr.

Judgement

 

Court: Andhra Pradesh High Court

Bench: JUSTICE Muktadar

G. Balraj Vs. Mallamma & Anr. On 17 Feb 1984

Law Point:
Criminal Procedure Code, 1973 –– Sections 125, 126, 127 and 128 — Petition u/s. 127 for enhancement of maintenance granted u/s. 125 — Nature of proceedings and where to be field — Held Section 127 Cr.P.C. is an independent proceeding and, therefore, Section 126 Cr.P.C. has no application thereto and that the petition for enhancement of maintenance will have to he filed before the same magistrate who had passed orders of maintenance in the first instance.

 

 

JUDGEMENT

 

1. The petitioner before me is the husband. An order of maintenance was passed against him by the VI Metropolitan Magistrate in M.C. No. 4/75. That petition was allowed and the husband was ordered to pay maintenance of Rs. 150/- per month to the wife. Thereafter the wife filed another petition bearing M.C. No. 17/83 under Section 127 of Cr.P.C. for enhancement of the maintenance. The husband raised a plea that this petition was not maintainable as the III Metropolitan Magistrate before whom the present petition was filed, did not have any jurisdiction. The lower court did not accept the contention and dismissed the plea of the husband. Hence this revision.

2. Mr. Sundararaja Rao, the learned Advocate appearing on behalf of the petitioner-husband contended that the petition which is filed under Section 127 Cr.P.C. ought to have been filed before the same Magistrate who had passed the orders in the prior petition viz., M.C. No. 4/75. He contends that a reading of Section 126, Cr.P.C. would show that where the proceedings under Section 125 Cr.P.C. are to be taken against any person, then the petition should be filed as to where the husband resides or where the husband last resided with his wife or as the case may be with the mother of the illegitimate child. Submits the learned advocate that Section 127 Cr.P.C. is an independent proceeding and therefore Section 126 Cr.P.C. has no application thereto and that the petition for enhancement of maintenance will have to be filed before the same Magistrate who had passed orders of maintenance in the first instance. In support of this contention, the learned advocate has cited a decision reported in Vithalrao Marotrao v. Smt. Ratna Prabha, 1978 Cr.LJ 1406 (Bom.).

3. I am therefore of the opinion that this contention will have to be accepted. A reading of Section 126 Cr.P.C. would show that it provides for the procedure and the jurisdiction of the court where an application under Section 125 Cr.P.C. could be filed. But Section 127 Cr.P.C. which is for alteration in the amount is completely different and for this Section 126 Cr.P.C. has no application Section 127(1) Cr.P.C. provides a proof of 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 lit. The words “the Magistrate” to my mind would mean the Magistrate who had passed the first order of maintenance, because I am strengthened in this interpretation by the fact that Section 128 Cr.P.C. which is the section for enforcement of the order of maintenance specifically provides that such petition under Section 125 Cr.P.C. may be presented before “any Magistrate.” Therefore, in these circumstances the petition under Section 127 Cr.P.C. will have to be filed before the Magistrate who has passed the first order of maintenance.

4. My conclusion is re-inforced by the ruling cited by the learned advocate.

5. Hence, this revision is allowed and the order of the lower court is set aside. The petition filed by the wife, who is the respondent before me, may be transferred to the court of the VI Metropolitan Magistrate, Hyderabad within three weeks from the date of receipt of the order of this court and the proceedings will continue from the place where they were, before the III Metropolitan Magistrate, Hyderabad.

 

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