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Judgment
Hon'Ble Praveen Kumar Giri, J.
Heard Sri Sandeep Kumar, learned counsel for the revisionist and Sri Vivek Shukla, learned A.G.A. for the State.
Learned counsel for the revisionist submits that he has filed the instant criminal revision with the relief which has been mentioned in the prayer clause of the revision along with delay condonation application as there is delay of 87 days in filing the present revision. The relief which has been mentioned in the revision is delineated below:-
"Kindly, set aside the impugned judgment and order dated 05.05.2017 passed by the learned court of Principal Judge, Family Court, Bareilly in Criminal Misc. Case No. 788 of 2012, (Smt. Manjeet Kaur vs. Jasvindar Singh @ Sanjay Mehtal), under Section125 Cr.P.C., P.S. Baradari, Distyrict-Bareilly as well as impugned order dted 16.07.2025 passed by Additional Principal Judge, Family Court, Bareilly in Criminal Misc. Case No. 1025 of 2023, (Smt. Manjeet Kaur vs. Jasvindar Singh @ Sanjay Mehta), under Section 125(3) Cr.P.C., P.S. Baradari, District Bareilly, so that justice be done, otherwise the revisionist shall suffer irreparable loss and injury. Kindly pass any other order which this Hon'ble Court may deem fit and proper in the circumstances of the case."
Learned counsel for the revisionist submit that vide order dated 05.05.2017, the Additional Principal Judge, Family Court, Bareilly has granted allowance of maintenance to the opposite party no.2 to the tune of Rs.5000/- per month from the date of order. He further submits that the order dated 05.05.2017 has yet not been stayed or set aside by any court of law. He further submits that the wife/opposite party no. 2 filed an execution application and consequent thereupon, the trial court vide order dated 16.07.2025, has directed the employer of the revisionist/higher authority of the department where the revisionist is working, i.e. District Inspector of School, Bareilly to deduct the amount of maintenance in terms of order dated 05.05.2017, from his salary. He further submits that at present the order dated 05.05.2017 has been executed, however, the opposite party no.2 is living separately from her husband (revisionist) without any sufficient reason. He further submits that opposite party no.2 earns her livelihood and she is able to maintain herself and besides this, order of the decree of divorce has already been passed dissolving their marriage, therefore, for the new developments, the present time barred revision has been preferred challenging the order of maintenance dated 05.05.2017 as well as execution order dated 16.07.2025. At last, he submits that on the basis of evidence available on the record, the impugned order may be quashed.
Per contra, Sri Vivek Shukla, learned State Counsel assists the Court and submits that the order of maintenance dated 05.05.2017 has already been executed, therefore, on the above ground i.e. for new development after the order of maintenance, as taken by the revisionist, remedy available to the revisionist is as provided under Section 125(5) Cr.P.C./144(5) BNSS for cancellation of the earlier order of maintenance. He further assists the Court and submits that after execution of maintenance order, in case of alteration in allowance of maintenance, there is a provision for filing an application under Section 127 Cr.P.C./146 BNSS or cancellation of earlier order of maintenance, therefore, in the above circumstances the remedy available to the revisionist is to approach the concerned trial court by filing an application under Section 125(5) Cr.P.C./Section 144 BNSS or under Section 127 Cr.P.C./146 BNSS, as the case may be. For ready reference, Section 125(5) Cr.P.C. and Section 127 Cr.P.C. are being delineated below :-
Section 125(5) Cr.P.C/144(5) BNSS :-
"On proof that any wife in whose favour an order has been made under this section in living in adultery, or that without sufficient reason she refuses to live with her husband, or that they are living separately by mutual consent, the Magistrate shall cancel the order."
Section 127 Cr.P.C./146 BNSS :-
"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.
(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, 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 a 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 the 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."
Thus, a trial court under Section 125(5) and 127 Cr.P.C./Section 144(5) and 146 BNSS by increasing or decreasing can modify the maintenance amount or cancel the order of maintenance, if there is proof of a material change in circumstances of either the paying or the person receiving the allowance of maintenance. Therefore, after execution of maintenance order in the changed circumstances, rather than filing a time barred revision with delay condonation application before the High Court, the statutory remedy is to file an application before the trial court under Section 125(5) and 127 Cr.P.C./Section 144(5) and 146 BNSS, as the case may be.
This Court has perused the record as well as gone through the submissions of the learned counsel for the parties, and finds that the present revision has been preferred after inordinate delay of 87 days. It is also an admitted fact that the maintenance order dated 05.05.2017 has already been executed, therefore, this Court finds that the present revision is liable to be dismissed on the ground of delay as well as maintainability as remedy available to the revisionist under Section 125(5) Cr.P.C./144(5)BNSS and also under Section 127 Cr.P.C./146BNSS in the event of change in the circumstances, as stated above.
Accordingly, the instant revision is dismissed on the ground of delay as well as maintainability.