The Dharwad Bench of the Karnataka High Court, in Shivanand S/o. Karabasappa Gurannavar v. Basavva@Laxmi W/o. Shivanand Gurannavar held that the maintenance granted to a wife can be subjected to enhancement under section 127 of the Criminal Procedure Code, 1973 (CrPC) only when it has been determined according to section 125 of the CrPC and not when it has been granted under the Protection of the Women from Domestic Violence Act, 2005 (hereinafter referred to as “DV Act”).
The petitioner (husband) has challenged the enhancement of the maintenance amount to the respondent (wife) to ₹5,000 under section 127, CrPC whereas originally, she was awarded maintenance of ₹1,000 under section 12 of the DV Act. The petitioner has also challenged the order where the Session Court confirmed such enhancement of the maintenance amount.
Section 125 of the Cr.P.C. enables the wife to seek maintenance at the hands of the husband inter alia.
Invoking this provision, the learned Magistrate can award maintenance. Section 127 of the Cr.P.C. deals with alteration in allowance. A maintenance that is awarded under Section 125 of the Cr.P.C. can be varied in an application filed under Section 127 of the Cr.P.C. 12. The language employed in Section 127 of the Cr.P.C. is unequivocal as on a proof of change in the circumstances of any person receiving allowance under Section 125 of Cr.P.C. can maintain a petition under Section 127 of the Cr.P.C. A proceeding under Section 125 of the Cr.P.C. therefore should precede a proceeding under Section 127 of the Cr.P.C.
“Whether the maintenance awarded under the Domestic Violence Act can be sought to be enhanced under the CrPC?”
Scope of Section 127, CrPC
Section 127, CrPC provides for alteration in allowance. Maintenance awarded under section 125, CrPC can be altered according to the provisions of section 127, CrPC. The Court noted that a sine qua non of a petition under section 127, CrPC to be successful is an order of maintenance.
Significance of order under section 125, CrPC for seeking enhancement of maintenance
The Court observed that when the maintenance is not determined under section 125, CrPC, it is not possible to maintain a petition under section 127, CrPC. The language of section 127, CrPC is indisputable. It simply provides that when there is a change of circumstances, a person who receives maintenance under section 125, CrPC can maintain a petition under section 127, CrPC. Therefore, it is easy to conclude that an order under section 125, CrPC should precede to seek the benefit provided by section 127, CrPC. The law, therefore, does not support that provisions of the DV Act can be enforced to seek maintenance, and later, provisions of CrPC can be used to seek enhancement of such maintenance.
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