Maintenance awarded under the Protection of Women from Domestic Violence Act cannot be enhanced under the provisions of CrPC: Karnataka HC

The Karnataka High Court ruled that the maintenance awarded under the Protection of Women from Domestic Violence Act cannot be enhanced under the provisions of CrPC.

Background 

The petitioner and the respondent are husband and wife. The marital life between the couple appears to have turned sore, pursuant to which, among other proceedings the respondent-wife files a petition invoking Section 12 of the Protection of Women from Domestic Violence Act, 2005.

Arguments 

Advocate Joshan P Dhanave,  appearing for the petitioner husband, argued that the respondent once having invoked the provisions of the Act could not have filed an application seeking enhancement under Section 127 of the Cr.P.C. The order passed by the Magistrate as affirmed by the Sessions Judge are orders without jurisdiction. 

Decision 

The single judge bench of Justice M. Nagaprasanna stated that 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. What is sine qua non is that an order of maintenance should precede a petition under Section 127 of the Cr.P.C., failing which, a petition under Section 127 of the Cr.P.C. seeking enhancement of maintenance is not available.

The court noted that there is no proceeding initiated by the respondent-wife invoking Section 125 of the Cr.P.C. Therefore, without there being any determination of maintenance under Section 125 of the Cr.P.C., petition under Section 127 of the Cr.P.C. is not maintainable.

The court quashed the order passed by the Magistrate and the order passed by the Sessions Judge and ordered that quashment of the orders will not preclude the respondent-wife in initiating any such proceeding in a manner known to law.

Case title: Shivanand v/s Basavva @ Laxmi

Citation: Criminal petition no.101378/2019 

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