Husband challenged the Family Court's dismissal of his Section 127 CrPC application seeking cancellation of his wife's pending Section 125 maintenance claim after permanent alimony was awarded in divorce proceedings. The High Court held Section 127 applies only where an order under Section 125 already exists, and dismissed the writ petition.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
NC: 2024:KHC:28265 WP No. 10621 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 16TH DAY OF JULY, 2024
BEFORE
THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI WRIT PETITION NO. 10621 OF 2022 (GM-FC)
BETWEEN:
MR. KARTHIK KAMATH, S/O. MOHAN KAMATH, AGED ABOUT 32 YEARS, R/O. SHANTHINIKETHAN, RADHAMOHAN APARTMENT, BEHIND KMC HOSPITAL, ATTAVAR, MANGALURU, D.K.DISTRICT – 575 001.
…PETITIONER
(BY SRI. K. RAVISHANKAR, ADVOCATE)
AND:
Digitally signed by MEGHA MOHAN
Location: HIGH COURT OF KARNATAKA
NEETHI D. NAYAK, D/O. V. DEVANAND NAYAK, AGED ABOUT 30 YEARS, R/O. SHRI. VINAYAK, DOOR NO.19/1520A, MADHAVAN NAIR ROAD, CHALAPPURAM, KOZHIKODE, KERALA STATE – 673 002.
…RESPONDENT
(BY SRI. SACHIN B.S., ADVOCATE)
THIS W.P. IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DTD. 16.05.2022 PASSED IN CRL.M.C.NO.9/2019 PENDING ON
NC: 2024:KHC:28265 WP No. 10621 of 2022
THE FILE OF THE I ADDL. PRINCIPAL JUDGE, FAMILY COURT D.K. MANGALURU PRODUCED VIDE ANNX-E TO THE WRIT PETITION AND ALLOW THE APPLICATION IN I.A.NO.7 FILED BY THE PETITIONER AS PRAYED FOR AND ETC.
THIS PETITION, COMING ON FOR PRILIMINARY HEARING IN B GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
Aggrieved by the orders passed in I.A.No.7 in Criminal M.C.No.9/2019 dated 16.05.2022 by the I Addl. Principal Judge, Family Court, Dakshina Kannada, Mangaluru, the husband is before this Court.
maintenance under Section 125 of CrPC of an amount of Rs.50,000/per month and the husband had filed M.C.No.384/2016 seeking dissolution of marriage. This application is filed in the year 2019. By judgment dated 18.06.2020, the Trial Court had dissolved the marriage between the husband and wife and granted permanent alimony of an amount of Rs.28,00,000/-. Aggrieved thereby, both the
husband and wife have carried the matter before this Court. In the MFA filed by the husband, this Court had granted stay on the condition of depositing an amount of Rs.7,00,000/-, where the wife was permitted to withdraw the said amount. This Criminal.M.C. is filed much prior to the disposal of the divorce petition. In the Criminal.M.C. the husband had filed the petition under Section 127 of CrPC.
had dismissed the petition filed by the husband. While dismissing the said petition, the Trial Court had observed that the judgment that are relied on by the husband, facts and circumstances of that case are different. In the case of Rakesh Malhotra vs. Krishna Malhotra1 , the Court had distinguished the said judgment of Hon’ble Apex Court on the facts of it and the Trial Court had observed that in the instant case, the wife had filed the application under Section 125 of CrPC and during pendency of that petition, the Court in divorce proceedings had granted permanent alimony and the same is under challenge before the Appellate Court. Accordingly, the Trial Court had dismissed the petition filed by the husband under Section 127 of CrPC. Aggrieved thereby, the husband is before this Court.
1 (2020) 14 SCC 150
the wife for full and final settlement is already decided. So at this point of time, the proceedings under Section 125 of CrPC that are pending before the Trial Court are not maintainable. It is submitted that the judgment of the Hon’ble Apex Court in Rakesh Malhotra ’s case referred supra, the Trial Court had failed to consider in a proper perspective and it is also submitted that the MFA is pending from the year 2022, at no point of time, the wife had not moved any application before the Court seeking any amount for her maintenance. That itself shows that she do not have any pressing need and necessity for the amount. It is submitted that as the MFA is pending, any amount that is required, an appropriate application ought to have filed and before different forums, the matters cannot be pursued by the parties and the Writ Petition is liable to be allowed.
NC: 2024:KHC:28265 WP No. 10621 of 2022
has been passed. Hence, the application filed by husband itself is not maintainable and the Trial Court had rightly dismissed the application.
perused the material placed on record. Now, the present application came to be filed under Section 127 of CrPC. Before going into the merits of the case, it is appropriate to look at the provisions of Section 127 of CrPC.
127. Alteration in allowance- [(1) On proof of a change in the 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 the maintenance or the interim maintenance, as the case may be.]
(2) Where it appears to the Magistrate that, in consequence of any decision of a competent Civil Court, any order made under section 125 should be cancelled or varied, he shall cancel the order or, as the case may be, vary the same accordingly.
NC: 2024:KHC:28265 WP No. 10621 of 2022
(3) Where any order has been made under section 125 in favour of a woman who has been divorced by, or has obtained a divorce from her husband, the Magistrate shall, if he is satisfied that –
(a) the woman has, after the date of such divorce, re-married, cancel such order as from the date of her re-marriage;
(b)the woman has been divorced by her husband and that she has received, whether before or after the date of the said order, the whole of the sum which, under any customary or personal law applicable to the parties, was payable on such divorce, cancel such order –
(i) in the case where such sum was paid before such order, from the date on which such order was made;
(ii) in any other case, from the date of expiry of the period, if any, for which maintenance has been actually paid by the husband to the woman;
(c) the woman has obtained a divorce from her husband and that she had voluntarily surrendered her rights to [maintenance or interim maintenance as the case may be,] [Substituted by Act 50 of 2001, Section 3
(w.e.f.24-9-2001).] after her divorce, cancel the order from the date thereof.
(4) At the time of making any decree for the recovery of any maintenance or dowry by any person, to whom [monthly allowance for the maintenance and interim maintenance or any of them has been ordered] to be paid under Section 125, the Civil Court shall take into account that sum which has been paid to, or recovered by, such person [as monthly allowance for the maintenance and interim maintenance or any of them, as the case may be, in pursuance of] the said order.
NC: 2024:KHC:28265 WP No. 10621 of 2022
Section 127 of CrPC. When the application filed itself is not maintainable, the question of going into all these aspects which are on the merits of the matter would not arise. In that view of the matter, this Court deems it appropriate to pass the following,
ORDER
SD/JUDGE
BN
List No.: 1 Sl No.: 8
1 issue framed by the court
Whether a husband's application under Section 127 CrPC to cancel the wife's pending Section 125 CrPC maintenance petition is maintainable after permanent alimony was granted in divorce proceedings.
Colour shows how this judgement treated each authority
Rakesh Malhotra vs. Krishna MalhotraReferred
(2020) 14 SCC 150 · Who else cites this
4 provisions across 3 enactments
Karthik Kamath
Neethi D. Nayak
Lalitha Kanneganti
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
