ORDER
K.L. Manjunath, J.
1. Petitioner and R-1 were husband and wife. Their marriage was solemnized on 30.7.1980. A joint petition for consent divorce was filed by the petitioner and R-1 in M.C. 222/88 on the file of the Family Court at Bangalore and the marriage was dissolved on 31.10.1988. On the date of the presentation of the joint petition, petitioner and R-1 had two children viz., R-2 son who born on 28.5.1984 and a daughter by name Anitha who had born on 28.9.1981. In the divorce proceedings, R-1 declined to claim any maintenance from the petitioner as she was gainfully employed. In the year 2002, respondents herein filed a petition under Section 127 of Cr.P.C. claiming maintenance from the petitioner herein. In the proceedings, an application for interim maintenance was also filed claiming monthly maintenance of Rs. 4000/- per month for R-1 and Rs. 1500/- per month to R-2 son. On the application filed by the respondent, Trial Court has awarded a sum of 2500/- to R-1 herein. This order is called in question in this writ petition.
2. Heard the learned counsel for the parties.
3. Learned Counsel appearing for the petitioner contends that respondent who had declined to claim maintenance from the petitioner herein in a consent divorce petition, at a later stage cannot file an application under Section 127 of Cr.P.C. since she had voluntarily surrendered her rights to maintenance after her divorce. Therefore, relying upon Section 127(3)(c) of Cr.P.C. he requests this Court to set aside the order passed by the trial Court. In support of his arguments, he has relied upon a judgment of Bombay High Court in Shrawan Sakharam Ubhale v. Sau/Durga Shrawan Ubhale and Ors., 1989 Crl.L.J.-211. Relying upon this decision, he contends that a divorced wife who has voluntarily surrendered to claim maintenance cannot be permitted to file a petition under Section 127 of Cr.P.C. claiming maintenance. Per contra, Smt. Jayna Kothari, Learned Counsel appearing for R-1 relying upon the judgment of the Calcutta High Court in Joydel Kumar Biswas v. Maduri Biswas, 1994 Crl.L.J.-3342 contends that even though R-1 voluntarily surrendered to claim maintenance while obtaining divorce from the petitioner, still she can maintain a petition under Section 127 of Cr.P.C. According to her Clause (c) of Sub-section (3) of Section 127 of Cr.P.C. has no application for the present case. Therefore, she requests this Court to dismiss this petition.
4. Having heard the learned counsel for the parties, the only question to be considered by this Court is whether R-1 can maintain a petition under Section 127 of Cr.P.C. even though she had voluntarily surrendered to claim maintenance from the petitioner. Whether Clause (c) of Sub-section (3) of Section 127 of Cr.P.C. can be a bar for R-1 to maintain a petition under Section 127 of Cr.P.C.
5. The relationship between the parties are not is dispute. The facts of this case are also not is dispute. It is true that R-1 who was gainfully employed on the date of obtaining a consent divorce had voluntarily surrendered her rights to claim maintenance from the petitioner-husband and lateron she has filed a petition under Section 127 Cr.P.C. claiming maintenance from the divorced husband alleging that she is unable to maintain herself. In the said proceedings, petitioner husband has taken up a contention that R-1 is not entitled to claim maintenance under Section 127 in view of Clause (c) of Sub-section (3) of Section 127 of Cr.P.C.. In order to appreciate the case of the parties, it is better to understand Clause (c) of Sub-section (3) of Section 127 of Cr.P.C. which reads as hereunder:
“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:]
Provided that if he increases the allowance, the monthly rate of five hundred rupees in the whole shall not be exceeded.
(2) Where it appeared 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, remarried, cancel such order as from the date of her remarriage;
(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.”
From the reading of Section 127 it is clear that on proof of a change in circumstances of a person receiving a monthly allowance for maintenance under Section 125 may seek such alteration before the Magistrate as he thinks fit in respect of the maintenance awarded. However, as per Sub-section (3) of Section 127 of Cr. P.C., a Magistrate has got power to cancel the maintenance awarded in favour of a woman provided divorced woman has re-married and that such divorced woman has received whole of the sum which has been ordered under any customary or personal law applicable to the parties at the time of obtaining divorce and similarly if the wife has voluntarily surrendered her rights to maintenance after her divorce same can be cancelled at the instance of the husband from the date of such divorce. From the reading of Clause (c) of Sub-section (3) of Section 127 of Cr.P.C., it is clear that if a woman had been granted maintenance under Section 125 of Cr.P.C. on an earlier occasion and if such woman had voluntarily surrendered to claim maintenance at the time of divorce, based on such voluntarily surrendering of her right, husband may approach the Magistrate for cancellation of the maintenance awarded under Section 125 of Cr.P.C. prior to the date of such divorce. But that does not mean that a divorced wife who had voluntarily surrendered rights to maintenance cannot maintain a petition under Section 127 of Cr.P.C.. Under Section 127 Cr.P.C, even though a divorced women had voluntarily surrendered to claim maintenance from her divorced husband on proof of change in the circumstances, she can maintain a petition under Section 127 of Cr.P.C. and as long as the divorced wife has not been remarried and or not living in adultery, husband cannot shirk from his responsibility to maintain a divorced wife. Considering Sub-section (3) of Section 127 of Cr.P.C., this court is of the opinion that the judgment relied upon by the learned counsel for the petitioner has no application to the facts and circumstances of this case. Section 127 can be pressed into service only for cancellation of maintenance ordered in favour of a wife under Section 125 if she had voluntarily surrendered her right to claim maintenance from the divorced husband while obtaining a divorce. But the same cannot be made applicable to a divorced woman who is claiming maintenance considering the changed circumstances in her life. Therefore, this Court does not see any reasons to differ with the view taken by the Trial Court.
6. Accordingly, this petition is rejected.