G.D. Saxena, J.
(1) Being aggrieved by an order dated 2nd August 2011 in Criminal Case No. 47/2010 by the Additional Principal Judge of the Family Court, Gwalior, directing thereby the petitioner to pay the arrears of interim maintenance amount to respondent till decision on the application under Section 151 of Cr.P.C., filed by the petitioner to set aside the order of interim maintenance, this revision petition under Section 397/401 of Cr.P.C. has been submitted.
(2) The facts, in short, just for the decision of the aforesaid cases, are that petitioner Ajaya Sharma was married to respondent Mrs. Archana Sharma on 16/2/97 at Gwalior and a child Ekansh was born on 10th February, 2000 out of their wedlock. The petitioner Ajay Sharma was working as AGM in Larsen and Toubro Company in USA. It is alleged that there the petitioner developed an illicit relations with another lady and he used to torture and threatened the respondent and was also trying to get divorce from her. She was forced to leave for her parental house. Accordingly, the complaint was lodged by her at police station Mahila where a Crime No. 121/09 for commission of offence punishable under sections 498-A and 506-B of I.P.C. against the petitioner-husband was registered. Ultimately, the respondent-wife decided to take shelter in the house of her parents with her son. The petitioner-husband did not take care of her and her son and deprived of her from basic amenities. For redressal of her grievance, the respondent filed the application under Section 12 of the Protection of Women from Domestic Violence Act 2005. The trial Magistrate vide order dated 12th November 2010, in Criminal Case No.1290/2010 granted a sum of Rs.15000/- towards monthly interim maintenance to respondent-wife. Then, the petitioner-husband filed the appeal under Section 29 of the said Act. The Appellate court vide order dated 31st January, 2011 in Criminal Appeal No. 615/2010 reduced the monthly interim maintenance amount up to Rs. 7000/-. Aggrieved by the said order, both the parties have filed the petitions against each other, bearing Misc.Cri.C.Nos. 1939/11 and 2470/11, which came up for hearing and decided by this court by a common order dated 9th May 2011. The relevant portions of the said are extracted below:-
“(6) In Criminal Revision No. 966/2010 filed by respondent Ajay Sharma vide dated 25th January 2011, another bench of this court passed the order to the following effect:-
“After taking into consideration facts and circumstances of the case, this revision is dismissed as withdrawn and it is directed to the learned Trial Court that if any application is filed by applicant alongwith relevant documents concerning source of income of respondent, then after taking into consideration facts and circumstances of the case and social and economic status of the parties and standard of living and also considering the facts that whether respondent has any independent source of income sufficient for her maintenance, pass appropriate order as per law.
It is also directed to the trial court that before considering the application, if any filed on behalf of the applicant, the trial court shall make sure that the amount of interim maintenance awarded in favour of respondent as per order dated 27/10/10 is to be paid to respondent.
“(7) In that view of the matter and the liberty granted by the aforesaid order, the petitioner vis-avis the respondent in both the petitions shall have a legal recourse to apply before the concerning Magistrate seeking alteration, modification or revocation of the order impugned in view of the provisions of Section 25 of the said Act. Thus, at this stage, this court does not feel it proper to interfere in the impugned order. Even otherwise, the power under Section 482 of Cr.P.C. has to be exercised sparingly depending upon the facts and circumstances of each case and no straitjacket formula can be laid down for exercise of such power. Accordingly, both petition have no force and are dismissed hereby.” (3) It is thereafter that the order was passed by the trial court challenged in the revision.
(4) The contention of the learned counsel appearing for the petitioner is that in compliance of the directions of this court contained in the order dated 25th January 2011 in Cri. Rev. No. 966/2011, the petitioner moved an application before the trial court on 3rd of February, 2011 and also paid Rs. 30,000/- towards arrears of interim maintenance to the respondent. It is contended that the respondent is responsible for causing delay in the disposal of his application by not filing reply despite giving various opportunities. Therefore, it is requested that by allowing the revision the order passed by the court below directing the petitioner to pay the arrears of interim maintenance before disposal of his application be set aside.
(5) The learned counsel for the respondent on the other hand, opposed the prayer and prayed for dismissal of the revision.
(6) Heard the learned counsel for the parties and also perused the impugned order and the documents annexed with the revision memo.
(7) After marriage, it is the duty of the husband to provide shelter and maintenance to the wife. If he neglects, the wife is legally entitled to have it from the court by moving a petition under the provision of Section 125 of Cr.P.C. The section gives effect to the natural and fundamental duty of a man to maintain his wife, children and parents so long as they are unable to maintain themselves. At this juncture, it would be profitable to quote the relevant provisions under the Code.
S.125(1) If any person having sufficient means neglects or refuses to maintain -
(a) his wife, unable to maintain herself, or
(b) his legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or
(c) his legitimate or illegitimate child (not being a married daughter) who has attained majority, where such child is, by reason of any physical or mental abnormality or injury unable to maintain itself,or
(d) his father or mother, unable to maintain himself or herself,
a Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, father or mother, at such monthly rate, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to time direct:
Provided further that the Magistrate may, during the pendency of the proceeding regarding monthly allowance for the maintenance under this sub section, order such person to make a monthly allowance for the interim maintenance of his wife or such child, father or mother, and the expenses of such proceedings which the Magistrate considers reasonable,and to pay the same to such person as the Magistrate may from time to time direct:
Provided also that an application of the monthly allowance for the interim maintenance and expenses for proceeding under the second proviso shall ,as for as possible , be disposed of within sixty days from the date of the service of the notice of the application to such person,]
Sec.127(1)- [On proof of a change in these circumstances of any person, receiving under Section 125 a monthly allowance for the maintenance or interim maintenance or ordered under the same section to pay a monthly allowance for the maintenance or interim maintenance to his wife child, father, or mother as the case may be, the Magistrate may make such alteration, as he thinks fit, in the allowance for maintenance or the interim maintenance as the case may be.]
(2) xxxxx xxxxx xxxxx xxxxx
(3) xxxxx xxxxx xxxxx xxxxx
(4) xxxxx xxxxx xxxxx xxxxx
(8) A perusal of the provisions of Section 127 of Cr.P.C. makes it clear that where once an order for maintenance is passed under Section 125 of Cr.P.C., the amount can be increased or decreased by change of circumstances of the person receiving, or of the person paying, the amount. Change in circumstances envisaged by this section is of pecuniary or other circumstances of the party paying or receiving maintenance allowance which would justify an increase or decrease of the amount originally fixed. Change in circumstances would also mean change in the circumstances of the husband. An application for alteration in maintenance allowance on ground of change in circumstance can be filed by either party. As discussed above, by way of directions dated 25th January 2011 in Cri. Rev.No. 966/2010, this court granted the petitioner-husband a liberty to move an appropriate application for alteration of monthly interim allowance originally granted to his wife and child on proof of change of circumstances, which is said to be pending consideration before the court. Suffice it to say, until the interim order of maintenance passed earlier on dated 27th October 2010 is amended/altered or maintained, as the case may be, same will be enforceable on the date of pronouncement of such order or the date as the trial Judge may direct in his order and under the circumstances, the petitioner is bound to pay the interim 7 Criminal Revision 786/11 maintenance amount as ordered by the court.
(9) Consequently, this court does not find any merit in this revision. Same is hereby dismissed with a direction to the trial court to dispose of the petition of the petitioner-husband within a period of two months from the date of communication of the order of this court.