Criminal Writ Petition No. 1611 of 2001

6th May, 2004

Petitioner Counsel: Mr. C. G. GAVNEKAR
Respondent Counsel: Mr. ASHOK D. AVHAD,Smt. A. S. PAI

Cases Cited:
Vithalrao Awadhut Vs. Ratnaprabha Awadhut, 1978 Mh.L.J. 393 [Para 5]
Dnyanoba Katore Vs. Housabai Katore, 1983(1) Bom. C.R. 461 [Para 6,17]
Prabhakar Vs. Karuna, I(1988) DMC 395 [Para 7]
Vithalrao Vs. Savitrabai, 1987 Mh.L.J. 226 [Para 8]
Raj Kumari Vijh Vs. Dev Raj Vijh, AIR 1977 SC 1101 [Para 8]
Anandrao Kharabe Vs. Madhuri Kharabe, 2003(1) Mh. L.J. 388 [Para 9]
Kailashben Joshi Vs. Arvindbhai Joshi, III-1986(1) Crimes 556 [Para 10]
Shri. Ishar Alloys Steels Ltd. Vs. Jayaswals NECO Ltd., 2001 ALL MR (Cri) 578 (S.C.)=AIR 2001 SC 1161 [Para 13]

JUDGMENT

JUDGMENT : - A short but important question which has been referred for decision by the learned Single Judge of this Court is whether the expression "the Magistrate" occurring in section 127 of the Criminal Procedure Code contemplates the same Magistrate who had decided the application for maintenance under Section 125 of the Code or is it open to make an application under Section 127 of the Code to any other Magistrate referred to in Section 126 of the Code at the option of the applicant.

2. The above question arises in the following circumstances :

The petitioner-husband had married the respondent no.1 - wife on 11th March, 1988 as per Hindu law. From the said marriage a son was born to the couple. As the differences arose between the parties and they were residing separately, the petitioner-husband filed proceedings for restitution of conjugal rights against the wife under the provisions of the Hindu Marriage Act in the Court of Civil Judge, Senior Division and JMFC, Nashik. The respondent-wife, on the other hand, filed an application for maintenance for herself and her son, being Misc. Application No.558 of 1993, in the Court of JMFC, Malegaon under Section 125 of the Code of Criminal Procedure. Since the proceeding for restitution of conjugal rights filed by the petitioner-husband was pending in the Nashik Court, the application for maintenance filed by the respondent-wife was transferred before the learned Civil Judge, Senior Division and JMFC, Nashik. The application for maintenance filed by the wife was allowed and the petitioner-husband was directed to pay maintenance at the rate of Rs.500/- per month. Thereafter the wife filed Criminal Misc. Application No.8 of 2000 on 21-2-2000 in the Court of JMFC, Malegaon for enhancement of maintenance from Rs.500/- to Rs.1500/- per month for herself and her son under Section 127(1) of the Code on the ground that the salary of the petitioner had increased from Rs.5500/- in the year 1993 to Rs.12,000/- in the year 2000. The petitioner filed his reply dated 11-12-2000 raising the objection that the application for enhancement of maintenance amount was not maintainable in Malegaon Court as the application under Section 125 was decided by the Civil Judge Senior Division and JMFC, Nashik and, therefore, the JMFC, Malegaon had no jurisdiction to entertain the said application. The learned JMFC, Malegaon however by his order dated 23rd August, 2001 held that the Court of JMFC at Malegaon was having jurisdiction as the application under Section 125 of the Code was transferred to Nashik Court only because the proceedings for restitution of conjugal rights under the Hindu Marriage Act were pending in the Court of Civil Judge Senior Division and JMFC, Nashik. The said order was challenged by the petitioner by filing Revision Application No.157 of 2000 in the Court of the Addl. District and Session Judge at Malegaon. The revision application was, however, dismissed by the order dated 18-10-2001 of the Addl. Sessions Judge, Malegaon observing that the original application for maintenance filed in the Court of JMFC, Malegaon was transferred only on the administrative ground and, therefore, the application for enhancement under Section 127 of the Code could be filed in the Court of JMFC, Malegaon. He accordingly confirmed the order of the learned JMFC assuming jurisdiction to hear the application for enhancement of maintenance under Section 127 of the Code.

3. Aggrieved by the aforesaid orders the petitioner-husband filed this petition in this Court under Article 227 of the Constitution which came up for hearing before Justice Khanwilkar. As the learned Judge found that there was conflict in the previous decisions of the learned Single Judges of this Court as to which Magistrate has got jurisdiction to consider and decide the application under Section 127 of the Code for alternation of the maintenance, he referred the question to the larger Bench and that is how the present petition has been placed before as under the directions of Hon'ble the Chief Justice of this Court.

4. Section 125 of the Code entitles certain persons like wives, children and parents to apply for maintenance in case there in neglect or refusal on the part of the corresponding relatives of the parties to maintain them. Such applications can be made at the choice or option of the parties before any of the Magistrate mentioned in Section 126 of the Code. Therefore section 127 empowers of Magistrate to alter the allowance made under section 125 of the Code in the circumstances mentioned therein. There is no dispute that a wife may apply for maintenance for herself and/or on behalf of her children, at her option, in any district (a) where her husband or (b) where her husband or she resides, or (c) where the husband last resided with her. The controversy is only as regards the choice of the Magistrate for the purpose of filing an application under Section 127 for alteration in the amount of maintenance granted under Section 125 of the Code.

5. In the case of Vithalrao Awadhut Vs. Ratnaprabha Awadhut reported in 1978 Mh.L.J. 393 it was observed that the party claiming enhancement of maintenance has to apply to the same Magistrate who had passed the previous order granted maintenance who had passed the previous order granting maintenance under Section 125 of the Code. In that case the maintenance was granted by the Magistrate at Wardha and the application for enhancement was made by the wife in the Court of Magistrate at Nagpur. The wife having earlier obtained the order from the Court at Wardha made another application again under Section 125 of the Code of the JMFC's Court at Nagpur claiming higher amount of maintenance. In that context it was held that the wife can not file fresh application on the same facts every time she changes her place of residence as the fresh application under Section 125 is barred by virtue of res judicata or general principles of res-judicata and the only course open to her was to make an application under Section 127 of the Code for enhancement of the maintenance allowance which had to be filed before the same Magistrate who had passed the initial order under Section 125 of the Code.

6. There is another decision of this Court in the case of Dnyanoba Katore Vs. Housabai Katore reported in 1983(1) Bom. C.R. 461. That was a case where the wife had applied for maintenance from her husband by filing an application in the Metropolitan Magistrate's 11th Court at Kurla, Bombay who granted maintenance at the rate of Rs.50/- per month in the Application bearing No.48/S/1967. In the year 1975 the wife filed an application for enhancement of maintenance under Section 127 of the Code in the same Court. The learned Magistrate had enhanced the amount of maintenance to Rs.80/- per month. As the amount of maintenance was not paid the wife had applied for execution of the order. Thereafter in the year 1982 the wife filed another application under Section 125 of the Code in the Court of the JMFC, Atpadi, Dist. Sangli praying for maintenance from her husband at the rate of Rs.500/- per month. The husband filed an application before this Court for transfer of the maintenance application filed by the wife, from the Court at Atpadi to the Metropolitan Magistrate's 11th Court, Kurla, Bombay. It was pointed out that the petitioner-husband as well as wife were residing in Kurla, Bombay and contended that the second application for maintenance was filed in the Court at Atpadi with a view to harass the husband. The learned Single Judge of this Court held that the second application could be filed under Section 127 of the Code for alteration of the maintenance amount which had to be made, as far as possible, before the same Magistrate who had passed the earlier order of maintenance. Thus the view taken by the learned Judge of this court in the above was that the application for alteration of allowance under Section 127 of the Code had to be made before the same Magistrate who passed the earlier order of maintenance.

7. As against that there are some judgments of this Court in which it is held that the application for alteration under Section 127 of the Code can be considered by any Magistrate referred to in Section 126 of the Code. In this connection reference may be made to the decision of the learned Single Judge of this Court in the case of Prabhakar Vs. Karuna reported in I (1988) DMC 395 in which it was held that the application under section 127 of the Code need not be decided by the same Magistrate. In that case initially the amount of maintenance was granted by the Chief Judicial Magistrate to the wife at the rate of Rs.200/- and to the child at the rate of Rs.100/- per month by the order dated 27-8-82. An application for enhancement of the maintenance was made in the year 1986. The Judicial Magistrate First Class, Wardha by his order dated 24th November, 1986 enhanced the monthly maintenance from Rs.200/- to Rs.500/- for the wife and from Rs.100/- to Rs.200/- for child. The said order was challenged by the husband, inter alia, on the ground that the application under Section 127 had to be decided by the same Magistrate who had granted the earlier application for maintenance. The said contention was rejected by the learned Single Judge of this Court holding that if the Legislature had intended that the application for alteration of maintenance allowance should be decided by the same Magistrate, the Legislature would have very well used the words "same Magistrate" and the use of the words "the Magistrate" does not mean the same Magistrate of the same Court as the same Magistrate may not be available for the decision of the application under Section 127 of Cr.P.C.

8. Reference may also be made to the judgment of the learned Single Judge of this Court in the case of Vithalrao Vs. Savitrabai reported in 1987 Mh.L.J. 226. In that case the wife had applied for maintenance initially in the Court of the Magistrate of Shrirampur which was granted after the parties arrived at compromise in the year 1977. Thereafter an application for enhancement of maintenance was made in the Court of JMFC at Aurangabad under Section 127 of the Code by filing Criminal Case No.141 of 1982, which was also granted. The said order was challenged in the High Court on the ground of want of jurisdiction of JMFC, Aurangabad. The contention was raised that the application for enhancement under Section 127 had to be made before the same Magistrate of Shrirampur, who had passed order under Section 125. The said contention was turned down on the ground that the beneficiary in whose favour the earlier order was passed had an option to file an application wherever she was residing at the time of making an application for enhancement. The learned Judge had however relied on the judgment of the Supreme Court in the case of Raj Kumari Vijh Vs. Dev Raj Vijh reported in AIR 1977 SC 1101 in which it was held that the defect of jurisdiction on the ground of territorial jurisdiction can be cured under Section 531 of the old Code i.e. under Section 462 of the new Code. The case before the Supreme Court was in respect of an application under Section 488 of the old Code for grant of maintenance and not for enhancement of maintenance and when the order granting maintenance was challenged on the ground of want of territorial jurisdiction of the Magistrate it was upheld by applying provisions of Section 531 of the old Code. The ratio of the said decision was applied by the learned Single Judge of this Court in the above case of Vithalrao Vs. Savitrabai holding that the order already passed for enhancement of maintenance by JMFC at Aurangabad could be upheld by resorting to the provisions of Section 462 of the new Code. Under the said provision no finding, sentence or order of any Criminal Court shall be set aside on the ground, inter alia, that the trial took place in a wrong sessions division, district, sub-division etc. unless such error had occasioned a failure of justice. That is not case here. So far as the present case is concerned the application for enhancement is yet to be decided and the issue of jurisdiction was raised before decision on merits was rendered by the Magistrate. In the case of Vithalrao Vs. Savitrabai (Supra) the challenge was made to the order of enhancement already passed by the Magistrate presiding over Aurangabad Court and, therefore, in our view, the ratio of that decision would not be applicable to the instant case.

9. Then there is recent decision of this Court in the case of Anandrao Kharabe Vs. Madhuri Kharabe reported in 2003(1) Mh.L.J. 388. In the case the argument advanced on behalf of the applicant that application under Section 127 can only be entertained by the same Magistrate who had passed the order in application under Section 125 of Cr.P.C., was rejected. It was observed that the words "a Magistrate" and the words "the Magistrate" do not appear in the same section and the power and scope under Section 127 in the distinct from the one under Section 127 is distinct from the one under Section 125 of the Code.

10. We may also refer to the judgment of the learned Single Judge of Gujarat High Court in the case of Kailashben Joshi Vs. Arvindbhai Joshi reported in III-1986(1) Crimes 556. In that case it was held that the application under Section 127 of the Code for modification or alteration of maintenance can be filed by the wife under the provisions of Section 127 of the Code at a place where she resides. That was a case where the maintenance order was passed by the JMFC, Mehmedabad. She thereafter made an application in the Court of JMFC, Ahmedabad. She had applied in the Court of JMFC, Mehmedabad under the old Code because her husband was residing there. After the amendment of the Cr.P.C. she made an application for enhancement of maintenance under Section 127 of the Code before the Magistrate's Court at Ahmedabad where she was residing. The husband had objected to the said application on the ground that she was liable to file an application before the JMFC, Mehmedabad who had decided the earlier application for maintenance. It was held that the earlier application was made by the wife in the Court at Mehmedabad because her husband was residing there and though she herself was residing in Ahmedabad she had no option under the old Code for filing application in the Court where she was residing. By the time an application was made for enhancement, the new Code had come into force under which wife had an option to file an application for maintenance in the district where she was residing. After considering the object and the recommendations of the Law Commission allowing the wife to make an application for maintenance in the district where she was residing, it was held that she could make an application under Section 127 for enhancement at Ahmedabad. From the reading of the said judgment it appears that Gujarat High Court had taken the said view in order to give benefit of the option available to the wife under the new Code whereby she was entitled to apply for maintenance in the district where she was residing and the earlier application for maintenance was filed at Mehmedabad only because she had no option under the old Code to apply before the Magistrate at Ahmedabad where she was residing. Moreover, Gujarat High Court had not considered the fact that application under Section 127 independently then husband would also be entitled to opt for the Court of the district, under Section 126(1)(b) of the Code, where he resides, which may be different from the place of the residence of his wife.

11. After considering the various aforesaid judgments taking different views, and after going through the provisions of Chapter I of the Code providing for right of maintenance to wives, children and parents, we are of the view that the application under Section 127 of the code for alteration in maintenance can be normally made before the same Court which had granted maintenance under Section 125 of the Code. Section 125 of the Code makes a reference to the power of "a Magistrate" to grant maintenance in certain circumstances. Section 126 lays down the procedure for adopting proceedings under Section 125 whereby three options have been given as regards the Court for making application by the person entitled for maintenance under Section 125 of the Code. Thereafter comes the provision for alteration in allowance under Section 127 whereby the power is given to "the Magistrate" to make alteration. The reference to Magistrate under Section 125 is made as "a Magistrate" because at that stage one of the options available under Section 126 is yet to be exercised by the applicant. The question of alteration in allowance under Section 127 of the Code comes only after the initial order for maintenance is granted by "the Magistrate" opted by the applicant from amongst the districts mentioned in Section 126 of the Code. Having made the choice of " a Magistrate" for the purpose of applying for maintenance under Section 125 read with Section 126, the application for alteration has to be made to "the Magistrate" (as referred to under Section 127) granting maintenance under Section 125 of the Code, in whose favour the option was exercised by the wife, as per Section 126, for the purpose of grant of maintenance under Section 125 of the Code. The expression "the Magistrate" has been used twice in Section 127, firstly in sub-section (1) and thereafter in sub-section (3) of section 127 of the Code. So far as the enforcement of the order of maintenance is concerned, it is provided for in section 128 of the Code where again the reference is made to "any Magistrate". Thus before the option is exercised reference is made to "a Magistrate" in section 125 of the Code. After the option is exercised by the applicant the magistrate is referred to as "the Magistrate" and not as "a Magistrate". If the Legislature had wanted wife or other persons entitled to maintenance to apply for alteration in allowance to any of the Magistrates referred to under Section 126 of the Code the reference would have been made to Magistrate as "a Magistrate" instead of "the Magistrate" in Section 127 of the Code as well. Moreover, the sequence in which the sections are arranged is significant. So far as provision for alternation is allowance is concerned, it comes after the choice of Magistrate is made under Section 126 of the Code. Therefore, it stands to reason that the choice of Magistrate or option of choosing a Magistrate is given for making an application under Section 125 of the Code. Otherwise the procedure laid down under Section 126 would have been given in the section which follows after providing for alteration all allowance. The reference to "any Magistrate" in section 128 is also significant in as much as the order of maintenance is not necessarily enforceable by the same Magistrate who had passed the order but 'may be enforced by any Magistrate in any place where the person against whom it is made may be'.

12. It may be stated that normally when a party applies for modification or alteration of the earlier order, it is expected to apply to the same Court. It cannot be said that the reference to 'the Magistrate' means application for alteration has to be decided by the same Magistrate who was presiding in the Court of the District as Magistrate at the time of granting maintenance. In our opinion reference to 'the Magistrate' under Section 127 would only mean the Court of the Magistrate which had granted the earlier application. To expect the same Magistrate to decide the application for alteration would tend to negative the right of a party to apply for alteration as the same Magistrate is not likely to continue in the same Court indefinitely or for a long time to come for various reasons, e.g. his likely transfer to another Court which takes place normally after three years, his retirement or otherwise ceasing to be a Magistrate for any other reason which would defeat the right of a party to apply for alteration in maintenance allowance. To follow the said Magistrate in different courts or districts would not be feasible and may even tend to defeat the right of a party to apply for alteration.

13. In this connection reference may also be made to the judgment of the Supreme Court in the case of Shri. Ishar Alloys Steels Ltd. Vs. Jayaswals NECO Ltd. reported in AIR 2001 SC 1161 : [2001 ALL MR (Cri) 578 (S.C.)]. That was a case where the Supreme Court had to consider the reference to the words "the bank" used in clause (a) of proviso to section 138 of the Negotiable Instruments Act. In para 8 of the judgment it is observed by the apex court as follows :

"8. The use of the words "a bank" and "the bank" in the section is indicator of the intention of the Legislature. The former is indirect article and the latter is pre-fixed by a direct article. If the Legislature intended to have the same meanings for "a bank" and "the bank", there was no cause or occasion for mentioning it distinctly and differently by using two different articles. It is worth noticing that the word "banker" in Section 3 of the Act is pre-fixed by the indefinite article "a" and the word "bank" where the cheque is intended to be presented under Section 138 is pre-fixed by the definite article "the". The same section permits a person to issue a cheque on an account maintained by him with "a bank" and makes him liable for criminal prosecution if it is returned by "the bank" unpaid. The payment of the cheque is contemplated by "the bank" meaning thereby where the person issuing the cheque has an amount. "The" is the word used before nouns. With a specifying of particularising effect opposed to the indefinite or generalising force of "a" or "an". It determines what particular thing is meant; that is, what particular thing we are to assume to be meant. "The" is always mentioned to denote particular thing or a person. "The" would, therefore, refer implicitly to a specified bank and not any bank. "The bank" referred to in Clause (a) to the proviso to Section 138 of the Act would mean the drawee-bank on which the cheque is drawn and not all banks where the cheque is presented for collection including the bank of the payee, in whose favour the cheque is issued."

14. The aforesaid dictum of the Supreme Court fully supports the view taken by us as regards the intention of the Legislature that the application for alteration of maintenance allowance under Section 127 of the Code has to be made to the Court of the same Magistrate who had passed the order granting maintenance.

15. The fundamental canon of construction of a statute is that a provision has to be interpreted in such a way which would lead to harmonious construction and not give rise to anomalies or defeat the right conferred thereby. The intention of the Legislature undoubtedly appears to be that the application for alteration of allowance has to be made before the same Court because the Court before which the earlier application was made has the record of the earlier proceedings. Subsequent application for alteration of allowance can be made on the ground of change in circumstances and, therefore, for the purpose of considering whether there is any change in circumstances or not the Magistrate will have to consider the evidence on record in the earlier proceedings which will be available in the Court which had decided the earlier application for maintenance under Section 125 of the Code. It is different thing that the parties may be called upon to produce the certified copies of the entire proceedings from the Court which had decided the earlier application. But if the legislature had intended that the application for alteration could be decided in any district as per section 126, it would have expressly provided so.

16. One cannot be oblivious to the fact that application for alteration can be made not only by wife or children but even by husband or father against whom the order is passed. If the view is taken that application for alteration under Section 127 can be considered by any Magistrate as per the provision of Section 126 of the code then person against whom the order is passed will also have a choice to move any Magistrate of the place where he is or where he resides, which may again result in hardship to wife and children.

17. The consequence of giving choice to the wife second time is also likely to be misused as was done in the case of Dnyanoba Vs. Housabai (Supra) where it was found that the wife who was otherwise residing at Kurla had chosen to make an application for enhanced maintenance in the Magistrate's Court at Atpadi, Dist. Sangli where she had been temporarily residing, though her normal residence and that of her husband was at Kurla, Bombay where the earlier application for maintenance under Section 125 was granted.

18. It is argued that driving the wife to apply to the same Court after she has changed her residence to a distant place would result in hardship to the wife. In our view, such situation, can be taken care of by resorting to the provisions about transfer of cases under Sections 407 and 408 of the Code under which the proceedings can be transferred on the ground of general convenience of parties or witnesses or when it is otherwise expedient for the ends of justice. For example in the instant case initially the application for maintenance was made in the Court at Malegaon which was transferred to Nashik Court because application for restitution of conjugal rights preferred by the husband was pending before the Civil Judge Senior Division at Nashik. The application for maintenance was transferred under the orders of the Court and not pursuant to the option exercised by the wife under Section 126 of the Code. Since both the Courts are in the same district, the application along with the record of the previous proceedings under Section 125 of the Code could be transferred to the Court at Malegaon. But as a pure question of law, for the reasons set out hereinabove, we are of the view that 'the Magistrate' contemplated by Section 127 of the Code is the Court of the Magistrate which had passed the order for maintenance under Section 125 of the Code.

19. We thus answer the question referred to us accordingly and direct the office to place this matter before the Hon'ble Chief Justice for assigning it to the appropriate Court for deciding the same in accordance with the view expressed by us in this judgment.

Reference ordered accordingly.