1. This petition is filed under Section 482 of Criminal Procedure Code, 1973 (for short, ‘Cr.P.C.’), with a prayer to quash the order
dt.29.01.2016 passed in Crl.R.P.No.12 of 2014 by the learned Judge Family Court â€" cum â€" Additional Sessions Judge, Khammam, and to set
aside the order dt.20.01.2014 passed in Crl.M.P.No.269 of 2014 in M.C.No.31 of 2010 by the Judicial Magistrate of First Class, Yellandu, Khammam
District.
2. The petitioner herein is husband and the 2nd respondent is his wife, who filed Maintenance Case vide 31 of 2010 claiming monthly maintenance.
3. (i) The petitioner’s case is that during pendency of M.C.No.31 of 2010, himself and the 2nd respondent had entered into compromise and after
due conciliation, the Mandal Legal Services Committee passed the Award dt.17.09.2011 in M.C.No.31 of 2010, wherein he agreed to pay Rs.2,000/-
per month, towards maintenance.
(ii) But, within a year, the 2nd respondent filed petition under Section 127 Cr.P.C. vide Crl.M.P.No.269 of 2013 in M.C.No.31 of 2010 seeking
enhancement of maintenance from Rs.2,000/- to Rs.10,000/- per month, on the ground of increased necessities and expenditure.
(iii) In the petition, the 2nd respondent contended that the award dt.17.09.2011 in M.C.No.31 of 2010 by the Lok Adalat has attained finality. That
apart, he has to pay Rs.5,000/- per month to his 1st wife and three children as per the Lok Adalat award dt.28.01.2009 in DOP No.713 of 2008 on the
file of Principal District Judge, Khammam.
(iv) He is receiving salary of Rs.20,000/- only, which is meager to maintain himself and to meet his liabilities and other expenses. Further, the 2nd
respondent is not his wife and she is living separately on her own volition, hence not entitled for Maintenance under Section 125(4) of Cr.P.C.
Howsoever, he cannot pay more than Rs.2,000/-towards maintenance. But, the learned Judicial First Class Magistrate, Yellandu, Khammam, without
considering the salary, compulsory deductions and other liabilities, allowed the petition for enhancement and erroneously granted the monthly
maintenance of Rs.2,000/- to Rs.9,000/- per month.
(v) Against the order of enhanced maintenance, the petitioner preferred Revision Crl.R.P.No.12 of 2014 before the Judge, Family Court â€" cum â€
Additional Sessions Judge, Khammam.
(vi) The Revisional Court by order dt.29.01.2016 held that the Award passed in Lok Adalat by the Mandal Legal Services Committee does not bar the
claim for enhancement and confirmed the order dt.20.01.2014 passed in Crl.M.P.No.269 of 2014 in M.C.No.31 of 2010 on the file of Judicial
Magistrate of First Class, Yellandu, Khammam District.
(vii) Aggrieved thereby, the present Petition is filed for quashing the order of the Revisional Court and to set aside the order passed by the Magistrate
in the application filed under Section 127 of Cr.P.C.
4. The core contest of the petitioner in this petition is that in the Maintenance Case as the award was passed under Section 21 of the Legal Services
Authorities Act, 1987, it is final and non-appealable. Hence, the matter cannot be re-considered for enhancement under Section 127 of Cr.P.C.
However, the subject being civil in nature, the 2nd respondent can avail remedies under Civil Law for adjudication of plea of enhancement. Further,
the petitioner pleaded that respondent is not entitled to any maintenance and she is living separately on her own. The Trial Court failed to consider his
other liabilities and exorbitantly enhanced the amount of maintenance. Therefore, the enhancement of maintenance is not supported by fact and law,
hence the orders are liable to be quashed.
5. (i) The learned counsel for 2nd respondent submitted that the wife is entitled to file petition for enhancement under Section 127 of Cr.P.C. and that
though the parties settles the matter under compromise, the wife can seek for increase in the maintenance amount in the changed circumstances.
(ii) To substantiate, relied on the authority of the Hon’ble Supreme Court in Sanjeev Kapoor vs. Chandana Kapoor and others (2020) 13 SCC 172
wherein it was held that the order passed by the Family Court reviving the maintenance application of the wife under Section 125 Cr.P.C. by setting
aside order dt.06.05.2017 passed on settlement is not hit by the embargo contained in Sec 362 of Cr.P.C.
6. In these rival pleas, the point arises for determination in the present case are :
(i) “whether the petition under Section 127 Cr.P.C. is maintainable in view of the settlement awarded in the Lok Adalat? and
(ii) “whether the enhanced maintenance amount is sustainable in the facts and circumstances of the case?â€.
Point (i):
7. Section 125 to 128 of Cr.P.C. deals with order for maintenance of wives, children and parents against the person who neglects or refuses to
maintain. The dependent can seek maintenance on the basis of existing and future requirements of the defendant. It is well settled that the quantum of
maintenance to be granted should commensurate to maintain standard of living consistent with the status of the family. In addition, the dependent can
also seek for enhancement of maintenance on the ground of changed circumstances which were not in existence while considering the maintenance
application under Section 125 Cr.P.C. Thus, the claim for enhancement stands on different pedestal to that of claim under Section 125 of Cr.P.C. To
note, the provision in Section 127 of Cr.P.C. confers statutory right to the claimant to seek enhancement, who is entitled for maintenance. Therefore,
even if petition under Section 125 of Cr.P.C. is adjudicated, still the petition under Section 127 of Cr.P.C. is maintainable subject to proof of pleaded
circumstances.
8. In the present case, the petition under Section 125 of Cr.P.C., i.e., M.C.No.31 of 2010 was settled between the parties before Lok Adalat and an
award was passed. As per Section 21 of the Legal Services Act, 1987, the Award passed by Lok Adalat / Legal Services Authority is an enforceable
decree, equivalent to a decree passed on adjudication by the competent Court. Thus, the award of Lok Adalat and the decree passed by the Court
stands on same footing.
9. The further plea of the petitioner that in view of the settlement before Lok Adalat, only a civil suit is liable for enhancement is also not convincing,
as this stance itself is an admission that there is civil remedy to re-open the terms of settlement / enhancement. When it is so, the statutory right
conferred under Section 127 of Cr.P.C. shall have equal force. Further, though factually not analogous, the case on hand, the respondent relied
authority of the Hon’ble Supreme Court held specifically that the Court can revive the petition under Section 125 of Cr.P.C. itself when one of the
party failed to observe the understanding in the settlement.
10. Further, it is pertinent to note that the enhancement petition is not an appeal or examining the propriety of the award passed by the Lok Adalat
Legal Services Authority. At any stretch, the bar on appeal against the award passed by the Legal Services Authority can be read as block to the
statutory right specified in favour of the dependent to claim enhancement under Section 127 of Cr.P.C.
11. Viewed from another angle, no clause is found in the Award that the parties agreed to give up any claim of future maintenance or enhancement.
In addition, no aspect in the award is disclosing that the maintenance amount was awarded by anticipating all possible contingencies in fixing the
maintenance amount. Be that as it may, there cannot be any estoppel against the statute and plea of waiver will be against public policy.
12. As Section 127 of Cr.P.C. is conferring statutory right, I am of the considered opinion that the petitioner’s contention that the compromise
between the parties before the Lok Adalat under Award would bar such right is misconceived and untenable. Thus, it shall be held that the petition
under Section 127 of Cr.P.C. is maintainable even if the petition under Section 125 is concluded by settlement, or compromise or mediation or by the
Award passed in the Lok Adalat by the Legal Services Authority.
Point (ii) :
13. The other contention of petitioner is that respondent is 2nd wife and as she is voluntarily living separately, as such, she is not entitled for any
maintenance under Section 125(4). Prima facie, this claim is found to be stale as the petitioner in the maintenance proceedings voluntarily admitted his
liability and settled the matter before Lok Adalat, as such, this claim cannot be accepted at this stage.
14. The other aspect that the maintenance is enhanced without any basis is considered, admittedly the petitioner contested the enhancement petition
under Section 127 of Cr.P.C. and placed relevant documents. Further, submitted that in the petition for enhancement, the 2nd respondent falsely
pleaded that she has to take care children, though there are no children out of the wedlock, per contra, he has to take care of his 1st wife and three
children, by paying Rs.5,000/- per month towards maintenance and shall also bear their education and other expenses. Hence, out of Rs.20,000/- net
income per month, he would be left with meager amount, as such, the enhancement of maintenance amount to Rs.9,000/- is improper.
15. A perusal of documents filed with the petition are disclosing that in the Award dt.28.01.2009 passed in LAC.No.95 of 2009 the petitioner’s
marriage was dissolved with his 1st wife with an agreement to pay Rs.1,500/- per month towards maintenance and also undertaken to pay expenditure
on education, books, clothing and medicine for his three children, who are aged about 19, 17 and 15 and studying B.Com., B.Tech., and 10th Class
respectively. Further, his 1st wife agreed not to claim any maintenance. However, for the reason best known to the petitioner, no details of other
expenditure on the children through 1st wife is at least pleaded. Therefore, to the extent of payment of maintenance can be considered as obligation.
16. Further, the household card filed by petitioner is showing that the 2nd respondent as petitioner’s wife with one daughter and one son. This fact
is contradicting with the petitioner’s contention that the 2nd respondent is not his wife and there are no children to them.
17. To note, the petitioner is a regular employee with considerable income. The deductions portion of the Salary Certificate of the petitioner is showing
Rs.5,000/- towards Court Deduction, and from out of Gross Salary of Rs.48,251.12 the Net pay is Rs.20,509.90.
18. In the circumstances pleaded financial liabilities, even if the ‘Net’ amount is taken into account and disbursed among the petitioner and 2nd
respondent, the enhanced amount of Rs.9,000/- towards maintenance found reasonable, particularly in the light of 2nd respondent’s plea that she is
unable to maintain herself and to take care of the minor children. Therefore, no impropriety is found in the quantum of amount awarded in the petition
for enhancement of maintenance filed under Section 127 of Cr.P.C.
19. In the facts and circumstances, as the petitioner failed to make out any justified fact or ground for interference, this Criminal Petition fails on merit
and it is liable to be dismissed.
20. In the result, the criminal petition is dismissed. No costs.
21. As a sequel, miscellaneous petitions pending if any in this petition, shall stand closed.
