Case Note & Summary
The petitioner, Pandurang Laxman Tormal, filed a criminal writ petition under Article 227 of the Constitution of India before the Bombay High Court, Aurangabad Bench, challenging an order dated 1.9.2005 passed by the Judicial Magistrate, First Class, II Court, Shelgaon, in M.A.No.105 of 2004. The petitioner is the husband of respondent No.1, Savita, and father of respondent No.2, Archana. The background of the case is that Savita had earlier filed an application under Section 125 of the Code of Criminal Procedure, 1973 (CrPC) bearing No.14/1994, which was allowed, granting maintenance of Rs.200 per month for herself and Rs.100 per month for her daughter. Subsequently, the husband and wife entered into a compromise in Misc.Cri.Application No.74/1997, whereby the wife agreed to withdraw prosecution under Sections 496 and 500 of the Indian Penal Code, and the husband agreed to sell a plot to the wife. The compromise was recorded by the Magistrate on 22.9.1997, and the application was disposed of in view of the compromise. The husband contended that this compromise extinguished the earlier maintenance order and that the wife was not entitled to seek alteration of maintenance under Section 127 CrPC. However, the wife filed an application under Section 127 CrPC for enhancement of maintenance, claiming that the husband's income had increased and that she needed more for herself and her daughter. The Magistrate allowed the application and granted interim maintenance at the enhanced rate of Rs.500 for the wife and Rs.300 for the daughter. The husband challenged this order, arguing that the compromise had put an end to the maintenance proceedings and that the wife had voluntarily left the matrimonial home. The High Court, after hearing both sides, held that the compromise did not specifically state that the wife had surrendered her right to claim maintenance or seek alteration. The court observed that the earlier order under Section 125 CrPC was not expressly cancelled or set aside by the compromise. Therefore, the wife's application under Section 127 CrPC was maintainable. The court also noted that the husband had not challenged the quantum of enhancement. Consequently, the High Court dismissed the writ petition, upholding the Magistrate's order granting interim maintenance.
Headnote
A) Criminal Procedure Code - Maintenance - Alteration of Maintenance - Section 127 CrPC - Compromise Effect - The husband contended that a compromise in earlier proceedings (Misc.Cri.Application No.74/1997) had extinguished the wife's right to claim maintenance, but the court held that the compromise did not specifically state that the wife surrendered her right to seek future maintenance or alteration. The wife's application under Section 127 CrPC for enhancement was maintainable. (Paras 2-3) B) Criminal Procedure Code - Maintenance - Interim Maintenance - Section 125 CrPC - Enhancement - The wife filed an application under Section 127 CrPC for enhancement of maintenance from Rs.200 to Rs.500 for herself and from Rs.100 to Rs.300 for her daughter. The Magistrate allowed the application and granted interim maintenance at the enhanced rate. The High Court upheld the order, noting that the husband had not challenged the quantum of enhancement. (Paras 1-3)
Issue of Consideration
Whether the compromise entered into between husband and wife in earlier maintenance proceedings extinguished the wife's right to seek alteration of maintenance allowance under Section 127 of the Code of Criminal Procedure, 1973
Final Decision
The High Court dismissed the writ petition, upholding the order of the Judicial Magistrate granting interim maintenance of Rs.500 for the wife and Rs.300 for the daughter under Section 127 CrPC.
Law Points
- Maintenance under Section 125 CrPC can be altered under Section 127 CrPC
- Compromise does not bar subsequent application for enhancement
- Wife's right to maintenance is not extinguished by compromise unless expressly waived
