Section 127 Crpc: Alteration in allowance explanation with case law.

The power under Section 127 Crpc flows from Section 125 Crpc itself; any person who receives a monthly allowance under Section 125 of Crpc for the maintenance or interim maintenance, such as wife, child, father or mother, the Magistrate can make such alteration in monthly allowance depends on proof of a change in the circumstances of the appropriate case.

The Alteration in allowance is defined in the provision under the CODE OF CRIMINAL PROCEDURE, 1973, Section 127 Crpc, and is extracted here below.

Section 127. Alteration in allowance: 

(1) On proof of a change in the circumstances of any person receiving, under section 125, a monthly allowance for the maintenance or interim maintenance, or ordered under the same section to pay a monthly allowance for the maintenance or interim maintenance, to his wife, child, father or mother, as the case may be, the Magistrate may make such alteration, as he thinks fit, in the allowance for the maintenance or the interim maintenance, as the case may be.

(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 canceled 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 favor 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, re-married, cancel such order as from the date of her re-marriage;

(b) the woman 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 the husband has actually paid maintenance to the woman;

(c) the woman has obtained a divorce from her husband and that she had voluntarily surrendered her rights to[maintenance or interim maintenance, as the case may be] after her 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 for the maintenance and interim maintenance or any of them 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 for the maintenance and interim maintenance or any of them, as the case may be, in pursuance of] the said order.

Meaning of  Alteration in Allowance:

Maintenance decided by the court under section 125 Crpc is a temporary structure of order. The court could enhance the amount of maintenance if it needed to be increased. Similarly, if it appears to the Magistrate that, as the result of any decision of a Civil Court, the maintenance order should be modified or canceled, he may change or cancel the same. The question is whether an enhancement of the maintenance allowance can be made to take effect from the date of the application for increase instead of from the date of the order.

The Magistrate is empowered to enhance the maintenance allowance from the date of the order.

In the case of Bhagat Singh vs. Smt. Parkash Kaur and others, the Punjab and Haryana High Court, observed that the Magistrate had the jurisdiction to make the enhancement in the maintenance allowance effective from the date when it was asked for by the petitioner and not only from the date of the order.[1],

In the decision of the Parameswara Moothar vs. Balameenakshi, the Kerala High Court held that the magistrate is free to enhance the allowance either from the date of the application for enhancement or from the date of the order.[2],

The Andhra Pradesh High Court has taken a similar view in the case of Pilli Venkanna vs.Pilli Nookalamma and another; the court ruled out the proposition of law Under Section 127 Cr.P.C. The court can modify an order made under S. 125. However, such an order for the alteration of allowance can be made only from the date of order passed under this Section and not from the date of application seeking alteration. The legislature itself did not provide, under Section 127 Cr.P.C., that the Magistrate could backdate the order of alteration to the date of application. It is not open to the Magistrate or the Revisional Court to exercise such jurisdiction and enhance the compensation from the date of filing of that application.[3],

In the case of Raj Kumar vs. Mst. Shanta Bai, the Rajasthan High Court observed that Section 127(1) Cr.P.C. provides proof of a change in the circumstances of any person receiving under S. 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. The words “the Magistrate” would mean the Magistrate who has passed the first order of maintenance because the court is strengthened in this interpretation by the fact that S. 128, Cr. P.C., which is the section for enforcement order of maintenance, specifically provides that such petition under S. 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],

What is the effect of change in circumstances?

The wife has declined to accept the Cheque for maintenance amount sent to her is a “change in circumstances”, but it would not mean that she is able to maintain herself.

In the case of Krishna Kumar Dhuri vs.Smt. Santoshi Bai, the  Chhattisgarh High Court held that the wife’s decline to accept the envelope containing Cheques of maintenance amount sent to her is a “change in circumstances”, but the fact is otherwise, after the grant of maintenance, there is no change in existence of the circumstances necessary-ting filing of the application under sub-section (1) of Section 127 Cr.P.C. as still the wife is unable to maintain herself and no other fact has been brought on record and proved which disentitles her for the maintenance already granted by the Family Court. Such a statutory right of the wife validly given by a family court cannot be annulled by that court merely on the grounds of alleged non-acceptance of cheques by the wife. In the considered opinion of this Court, by no stretch of the imagination, such an act can be said to be a “change in circumstances” within the meaning of sub-section (1) of Section 127, Cr.P.C. requiring interference in the exercise of jurisdiction under sub-section (1) of Section 127 Cr.P.C. to the order granting maintenance to non-applicant-wife.[5],

The wife became an earning member, which is a change of circumstance warranting alteration of the order for maintenance.

In the case of P. N. Manikkuttan Nair, Revision vs. K. R. Girija Amma and another, the Kerala High Court rightly observed that the wife became an earning member, which is a change of circumstance warranting alteration of the order for maintenance. As she is getting more than Rs. 500/- p.m. towards her salary, she cannot claim maintenance from her husband. Even the wife cannot claim maintenance from the husband to maintain her major son.[6],

A decree for restitution of conjugal rights was passed in favor of the husband. He is entitled to the cancellation of the maintenance order in favor of the wife.

In the case of  Harish Mansukhlal vs. Hansagauri Ramshanker and another, the Gujarat High Court held that under Sub-Sec. (2) of Section 127 Crpc, any order made under S.125 can be canceled by the Magistrate in consequence of any decision of a competent Civil Court. Suppose there is a decision of a competent Civil Court granting a decree for restitution of conjugal rights in favor of the husband showing his intention to receive the wife, and that decree of restitution of conjugal rights clearly indicates that the wife, without reasonable excuse, has withdrawn from the society of the husband. In that case, that decree of the Civil Court clearly makes out a ground under Sub-Sec. (2) of 127 of the new Code.[7],

The decree in a subsequent civil suit in favor of a husband for dissolving the marriage on the ground of desertion was not a ‘decision’ within Section 127 (2) Crpc. Desertion had to be proved in proceedings u/S.127 ( 2 ).

In the case of Ranjit Kumar Pandey vs. Sm. Swaha Rani Pandey, the Calcutta High Court, held that an order for maintenance had been passed in favor of the wife. After that, the husband obtained a decree from a competent Civil Court u/S.13, Hindu Marriage Act, dissolving the marriage on the ground of desertion by the wife. Based on this decree, the husband petitioner subsequently moved an application u/Section 127 (2) for cancellation of a maintenance order. The word ‘decision’ means the determination of a question or controversy and not the reasons or grounds which weigh with the Court in arriving at such a decision. The question or controversy that arose in the divorce suit was whether the marriage between the petitioner and the opposite party should stand dissolved and whether the decision was in favor of the husband-petitioner. The ground of desertion, therefore, was not the decision itself but the reasons for such a decision. Under Section 41 of the Indian Evidence Act, the judgment and decree passed in the said Civil Suit is conclusive proof of the fact that the opposite party has been divested of her legal status as a wife but not of the reasons for which she has been so divested.[8],

What is the effect of enhancement of maintenance based on Compromise?

The Court to modify its order even though it was passed based on a compromise.

In the case of Padmanabhan vs.Bama, the Madras High Court held that the Court would have jurisdiction under Section 127 Cr. P.C. to enhance the maintenance when the order under Sec. 125 Cr. P.C. is passed on the basis of a compromise. There is nothing in Section 127 Cr. P.C. that takes away the jurisdiction of the Court to modify its order even though it was passed on the basis of a compromise. [9],

The order was based on a compromise. It is liable to be modified under Section 127 CrPC.

In the case of Alagappan vs.Thilagam, the Madras High Court held that even though the order was on the basis of a compromise, it is liable to be modified under Section 127 CrPC. Provided there is a change of circumstances that warrants an increase or decrease in the amount ordered, as the case may be. The wife subsequently established that circumstances have changed and that the earlier order of maintenance will be hardly sufficient to maintain her in a status befitting the status of her husband and, therefore, justified and claimed maintenance.[10],

The first application under Section 127 Crpc of the wife was disposed of based on compromise. Subsequent applications in a changed circumstance will not operate as estoppels or waivers.

In the case of Joydel Kumar Biswas vs. Madurai Biswas, the Calcutta High Court observed that though there was an agreement or compromise upon which the first application under Section 127 Crpc of the wife was disposed of, it will not operate as estoppel or waiver in the case of a subsequent application under S. 127 in a changed circumstance. Section l27 application is for modification of the order passed under S. 125 in changed circumstances. That is the provision of law, and no agreement can put a bar on such an application or subsequent application under Section 127 Crpc if there is a changed circumstance.[11],

The compromise arrived at between the parties is outside the purview of the Criminal Court. Application for enhancement of maintenance cannot be filed before the criminal court either under S.125 or Section 127 of CrPC.

In the case of Kamatham Venkatamma vs. Kamatham Buruju Ramanna and another, the Andhra Pradesh High Court held that the compromise arrived at between the parties is outside the purview of the Criminal Court and it does not form part of the decree that any Court has passed. If the original order was passed on the basis of a compromise, it can be enhanced under Section 127 CrPC. A petition under Section 127 CrPC for enhancement or reduction in the amount of maintenance granted under S.125 has to be filed before the Court, which passed the original order under that Section. An order passed under S.125 Cr. P.C. is not a bar to file a suit for maintenance in a Civil Court. A right of maintenance is a special right, and the mere fact that a similar analogous remedy is available under the Hindu Adoptions and Maintenance Act in a Civil Court does not take away the jurisdiction of the Magistrate to order maintenance to a Hindu wife.[12].

Footnote :

[1] CRI. L. J. 719

[2] AIR 1969 KERALA 108

[3] 1998 CRI. L. J. 1922

[4] 2002 CRI. L. J. 2894

[5] 2015 CRI. L. J. 742

[6] 2000 CRI. L. J. 3726

[7] 1982 CRI. L. J. 2033

[8] 1979 CRI. L. J. 1301

[9] 1988 CRI. L. J. 1386

[10] 2000 CRI. L. J. 3239

[11] 1994 CRI. L. J. 3342

[12] 1989 CRI. L. J. 2416