The Dharwad bench of the Karnataka High Court has said that the maintenance awarded by invoking the provisions of Protection of Women from Domestic Violence (CV) Act, 2005 cannot be enhanced under the provisions of Criminal Procedure Code (CrPC).
The petitioner-husband had challenged the order passed by the sessions court confirming the local magistrate court’s order enhancing the monthly maintenance payable to his wife.
The petitioner, a resident of Dharwad district, had challenged the June 2019 order of the sessions court at Dharwad, confirming the order of a local magistrate court enhancing the monthly maintenance from Rs 1,000 to Rs 5,000. The wife had initially filed a petition for maintenance in 2009 under DV Act and the court had ordered maintenance of Rs 1,000. The enhancement was ordered on her subsequent petition filed under Section 127 of CrPC.
The counsel for the petitioner-husband contended before the High Court that once provisions under the DV Act are invoked, the respondent-wife could not have filed an application seeking enhancement under Section 127 of the CrPC. The respondent-wife was unrepresented in the proceedings before the high court.
While Section 125 of the CrPC enables the wife to seek maintenance, Section 127 of the CrPC deals with alteration in allowance. Justice M Nagaprasanna pointed out that without there being any determination of maintenance under Section 125 of the CrPC, a petition under Section 127 of the CrPC is not maintainable.
“What is sine qua non is that an order of maintenance should precede a petition under Section 127 of the CrPC, failing which, a petition under Section 127 of the CrPC seeking enhancement of maintenance is not available,” the court said. The court quashed both the orders passed by the magistrate court and the sessions court on the enhancement and added that the order will not preclude the respondent-wife in initiating any such proceeding in a manner known to law.