Husbands filed petition under Section 127CrPC stating that salary of wife has been enhanced therefore she is no more entitled to maintenance - No application for stay of recovery of maintenance - Application under Section 127 cannot be treated as application for stay of recovery proceedings

Husbands filed petition under Section 127CrPC stating that salary of wife has been enhanced therefore she is no more entitled to maintenance - No application for stay of recovery of maintenance - Application under Section 127 cannot be treated as application for stay of recovery proceedings

ALLAHABAD HIGH COURT

Before :- N.B. Asthana, J.
Criminal Revision No. 1998 of 1992. D/d. 20.10.1994.

Sudhanshu Kumar - Appellant
Versus
Smt. Sangeeta Kumari and Anr. - Respondents


Criminal Procedure Code, 1973, Sections 125(3) and 127 - Order of maintenance to wife and minor daughter - Husband filed petition under Section 127 stating that salary of wife has been enhanced therefore she is no more entitled to maintenance - No application for stay of recovery of maintenance - Application under Section 127 cannot be treated as application for stay of recovery proceedings.

JUDGMENT


N.B. Asthana, J. - This revision has been directed against the order, said to have been passed on 1.12.93 of Judge Family Court, Bareilly in Criminal Miscellaneous Case No. 337 of 1993 Sangeeta Kumari v. Sudhanshu Kumar under Section 125(3) of Cr. P.C. issuing direction to the employer of the revisionist to deduct the maintenance allowance from the salary of the revisionist and remit it to the opposite party by cheque or draft by 1.1.94 the date fixed in the case.
2. Learned Counsel for the opposite party, has put in appearance and with the consent of the Counsel for the parties the revision is being disposed of finally at the stage of admission. It appears that vide order dated 22.9.93 the revisionist was directed to pay Rs. 300/- per month for maintenance of the opposite party and Rs. 150/- per month for maintenance of their minor daughter. She thereafter filed an application for the recovery of the maintenance allowance granted to her and their minor daughter upon which the order in question was passed.
3. The first contention of the learned Counsel for the revisionist is that the order was passed on 1.1.94, that this order was passed in advance and that on this account the order has become null and void. The photostat copy of this order has been filed. At the top of this order it is stated that "Copy of the order dated 1.12.93. The copy of this order was obtained on 3-12-93. In this order 1.1.94 has been fixed as the date by which the employer of the revisionist was to issue the cheque or draft to the applicant. It appears that while writing 1.1.94 in the order the Judge Family Court also put 1.1.94 under his signature. It cannot be said that the order was passed in advance. It was a clerical error in the sense that correct date was not put down under his signature by the Judge Family Court. From the copy itself it is crystal clear that the order was passed on 1-12-93.
4. Another contention of the revisionist is that he had filed an application under Section 127 Cr. P.C. stating that the salary of the opposite party has been enhanced from Rs. 275/- per month to Rs. 450/-per month w.e.f. 2nd October, 1992 and since the circumstances have changed she is not entitled to claim maintenance and that the Judge Family Court instead of deciding this objection, before issuing the process for the recovery of the maintenance, passed the order in question. The revisionist has himself filed the copy of application given by him under Section 127 Cr. P.C, it is dated 2-12-93. It follows that this application was filed after the impugned order was passed on 1.12.93. It does not appear from the material placed on record that any application for staying the recovery of the maintenance allowance was moved. There is nothing in Section 127 Cr. P.C. to indicate that as soon as an application is filed under that Section, the recovery proceedings would become automatically stayed. From the grounds of revision it further appears that upon the application filed under Section 127 Cr. P.C. 1.1.84 was fixed for disposal, Order of the Judge, Family Court, Bareilly does not suffer from any infirmity so as to call for any interference in the revision. The revision is dismissed.

Revision dismissed.

COMMENTS

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Geek Upd8 - Law Reporter: Husbands filed petition under Section 127CrPC stating that salary of wife has been enhanced therefore she is no more entitled to maintenance - No application for stay of recovery of maintenance - Application under Section 127 cannot be treated as application for stay of recovery proceedings
Husbands filed petition under Section 127CrPC stating that salary of wife has been enhanced therefore she is no more entitled to maintenance - No application for stay of recovery of maintenance - Application under Section 127 cannot be treated as application for stay of recovery proceedings
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