Section 127 of Code of Criminal Procedure provides that upon proof of any change in the circumstances of the person receiving or paying the monthly allowance, as the case may be, the Magistrate may make any alteration in the allowance as he may deem fit.
Image Source: 1.bp.blogspot.com
Similarly, if it appears to the Magistrate that, in consequence of any decision of a Civil Court, the maintenance order should be varied or cancelled, he may vary or cancel the same.
ADVERTISEMENTS:
Similarly, when any order is made in favour of a divorced woman, the Magistrate must, if he is satisfied that the woman has re-married after the date of the order, cancel such order as from the date of the re- marriage.
The expression “change in the circumstances” in S. 127 does not refer to a temporary or accidental change in one of the circumstances (such as a person’s salary), but a change in all the circumstances connected with the condition of the person concerned. (Rukmini,—1891 A.W.N. 32). The expression ordinarily implies a change in the material circumstances of the person, his property or otherwise, an increase or decrease of his liabilities, and so on.
The change in circumstances must be actual, and of such a nature that the law would recognise it. Thus, the growth of the child, or the birth of another child, or the death of a child would amount to a change in the circumstances. The rise in the cost of living would also amount to a change in circumstances. (Janakbai,—AIR 1956 Bom. 432)
It has also been held that the fact that the husband is heavily in debt because of the infructuous litigation which he has been conducting against his wife, and that he has a mistress and children (of the mistress) to maintain, would be no ground for reducing the maintenance awarded to his lawful wife. (Ma Mya Khin, – 39 Cr. L.J. 274)
ADVERTISEMENTS:
In Mohd. Ahmed Khan v. Shah Bano Begum (referred to above), the Supreme Court had to answer the following vexed question: Can it be said that, under Mohammedan Law, mahar (or dower) is an amount “payable on divorce”, which would absolve a Muslim husband from payment of maintenance under S. 127?
The Court held that just because deferred dower is sometimes payable on dissolution of marriage, it cannot be said that it is something payable on divorce. Divorce may be a convenient or identifiable time for its payment, but that does not mean that the payment is occasioned by such divorce.
[Note: A great hue and cry was raised after the judgment in Shah Bano’s case, which ultimately culminated in the passing of the Muslim Women (Protection of Rights on Divorce) Act, 1986.]
Specimens of Maintenance Application and Warrant:
ADVERTISEMENTS:
A specimen form of an application by a wife for maintenance is given below:
In The Court of the District Magistrate, Surat:
Application No. 880 of 2008
Application for maintenance under S. 125, Criminal Procedure Code.
Mrs. XYZ
Petitioner (or Applicant)
Versus
A. B.C.
Respondent
May it please Your Honour, (or your Worship)
I, the applicant above-named, beg to state on oath (or solemn affirmation) as follows:—
1. I am the lawful wife of the Respondent, being married to him in Mumbai. After our marriage, we went to Surat and resided there till March 19…, when the Respondent went away to Mumbai. He stayed on in Mumbai and did not return to Surat at all, though repeatedly requested by me to do so. He did not send any money to me all these years; nor did he reply to a single letter of mine.
2. The Respondent is a professor, and draws salary of Rs. 12,000 per month. He has an account with the Indian Bank, and is financially well off.
3. I, therefore, pray that the Respondent may be ordered to pay me Rs. 5,000 per month for my maintenance and that the same may be made payable from today.
(Sd)—Mrs. XYZ
Applicant abovenamed.
Dated this 15th day of March, 2008.
Before me,
P.Q.R.
Dist. Magistrate, Surat.
The following is a specimen of a warrant of imprisonment on failure to pay maintenance:
To:
The Officer-in-charge of the Jail at………
WHEREAS (name, description and address) has been proved before me to be possessed of sufficient means to maintain his wife (name) or his child (name) or his father or mother (name), who is by reason of (state the reason) unable to maintain herself/himself and to have neglected (or refused) to do so, and an order has been duly made requiring the said (name) to allow to his said wife (or child or father or mother) for maintenance, the monthly sum of Rs. 2,000;
AND WHEREAS it has been further proved that the said (name) in wilful disregard of the said order has failed to pay Rs. 2,000, being the amount of the allowance for the month (or months) of
AND THEREUPON an order was made adjudging him to undergo imprisonment in the said Jail for the period of days;
THIS IS to authorise and require you to receive the said (name) into your custody in the said Jail, together with his warrant, and there carry out the said order into execution according to law, returning this warrant with an endorsement certifying the manner of its execution.
Dated this 1st day of April, 20….
(Seal of the Court)
(Signature)