Maintenance awarded under Domestic Violence Act cannot be enhanced under CrPC: Karnataka High Court

The Dharwad Bench of the Karnataka High Court recently held that maintenance awarded under the Protection of Women from Domestic Violence Act cannot be enhanced under the provisions of the Code of Criminal Procedure (CrPC) [Shivanand v. Basavva].. Justice M Nagaprasanna said that maintenance awarded under Section 125 of CrPC can be enhanced under Section 127 of CrPC but not an award under the Domestic Violence Act."A 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 respondent-wife had filed a petition for maintenance from the petitioner-husband under Section 12 (application to Magistrate) of the Domestic Violence Act, upon which she was granted maintenance of ₹1,000. Subsequently, she filed a petition under Section 127 (alteration in allowance) of the CrPC for enhancement of the maintenance amount. The petition was allowed by the Magistrate and the maintenance was increased to ₹5,000. .The husband filed a criminal revision petition challenging the order of enhancement, which was dismissed by the Sessions Judge. He then approached the High Court in the present appeal..After hearing the parties, the High Court framed the question as to "Whether the maintenance awarded under the Domestic Violence Act can be sought to be enhanced under the CrPC?".The Court noted that Section 125 (order for maintenance of wives, children and parents) of the CrPC enables a wife to seek maintenance from the husband, while Section 127 deals with altering the allowance. The language in Section 127 is clear that it can be invoked upon a proof of change in circumstances of a person receiving a monthly allowance under Section 125 of the CrPC, the Court held. A proceeding under Section 125 of the CrPC, therefore, should precede a proceeding under Section 127 of the CrPC. In this light, the Court held,"It is also an admitted fact 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 thus allowed the petition, and quashed the orders of the Magistrate and of the Sessions Judge..Advocates RH Angadi and Joshna P Dhanave appeared for the petitioner, while the respondent was served but unrepresented. .[Read Order]