Chapter IX
Section 127 CrPC: Alteration in allowance
New Law Update (2024)
Section 156 BNSS
TRIAL COURT
Magistrate
Punishment
Procedural – Maintenance / Compensation
Cognizable?
Bailable?
Compoundable?
Bare Act Text
(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 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, 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.
(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 a monthly allowance for the maintenance and interim maintenance or any of them, as the case may be, in pursuance of the said order.
Important Sub-Sections Explained
Section 127(1)
This sub-section empowers a Magistrate to alter the amount of maintenance or interim maintenance ordered under Section 125 CrPC, if there is concrete proof of a change in the financial or personal circumstances of either the person paying or the person receiving the allowance.
Section 127(3)
This crucial sub-section outlines specific conditions under which a maintenance order for a divorced woman must be cancelled, such as her remarriage, her having received the full lump sum payment due under her personal or customary law upon divorce, or her voluntary surrender of maintenance rights post-divorce.
Landmark Judgements
Mohd. Ahmed Khan v. Shah Bano Begum (1985):
This landmark Supreme Court judgment affirmed the right of a divorced Muslim woman to claim maintenance under Section 125 CrPC from her former husband, even after the iddat period, if she is unable to maintain herself. This decision emphasized the secular nature of Section 125 CrPC.
Danial Latifi v. Union of India (2001):
The Supreme Court upheld the constitutional validity of the Muslim Women (Protection of Rights on Divorce) Act, 1986, interpreting it to ensure that a divorced Muslim woman is entitled to a ‘reasonable and fair provision and maintenance’ from her former husband, which implicitly extends beyond the iddat period if not otherwise provided for, thereby harmonizing it with Shah Bano’s verdict.
Rajnesh v. Neha (2020):
The Supreme Court laid down comprehensive guidelines for uniform procedure concerning payment of maintenance, including criteria for determining the quantum of maintenance, date from which maintenance is to be awarded, disclosure of assets and liabilities by both parties, and enforcement of maintenance orders across various personal laws.
Draft Format / Application
IN THE COURT OF THE JUDICIAL MAGISTRATE FIRST CLASS / METROPOLITAN MAGISTRATE AT [City/District]
Crl. Misc. Application No. ______ of 20___
IN THE MATTER OF:
[Name of Petitioner/Applicant]
S/o / D/o / W/o [Father’s/Husband’s Name]
Age: [Age] years
Resident of [Address]
…Petitioner/Applicant
VERSUS
[Name of Respondent]
S/o / D/o / W/o [Father’s/Husband’s Name]
Age: [Age] years
Resident of [Address]
…Respondent
APPLICATION UNDER SECTION 127 OF THE CODE OF CRIMINAL PROCEDURE, 1973 FOR ALTERATION/CANCELLATION OF MAINTENANCE ORDER
MOST RESPECTFULLY SHOWETH:
1. That the Petitioner/Respondent herein was granted / ordered to pay a monthly allowance of Rs. [Amount]/- (Rupees [Amount in Words] only) as maintenance / interim maintenance to the Respondent/Petitioner herein, vide order dated [Date of Order] passed by this Hon’ble Court in Crl. Misc. Case No. [Case Number] of [Year], under Section 125 of the Code of Criminal Procedure, 1973.
2. That subsequent to the passing of the aforesaid order, there has been a material change in the circumstances of the Petitioner/Respondent (as the case may be), which warrants an alteration / cancellation of the said order. The details of the change in circumstances are as follows:
[Provide specific details of the change in circumstances. For example:]
[a. For Alteration (Increase/Decrease): The financial condition of the Petitioner/Respondent has significantly changed due to (mention reasons like job loss, increase in income, new dependents, serious illness, etc.).]
[b. For Cancellation (Remarriage): The Respondent (woman) has remarried on [Date of Remarriage], after her divorce from the Petitioner, and is now being maintained by her new husband.]
[c. For Cancellation (Receipt of full divorce sum): The Respondent (woman) has received the whole of the sum payable under customary/personal law upon divorce from the Petitioner on [Date], whether before or after the maintenance order.]
[d. For Cancellation (Voluntary Surrender): The Respondent (woman) has voluntarily surrendered her rights to maintenance/interim maintenance after her divorce from the Petitioner on [Date].]
[e. For Cancellation/Variation (Civil Court Decision): A competent Civil Court has passed a decision/decree on [Date], in Case No. [Civil Case Number], which requires the cancellation/variation of the present maintenance order. (Attach copy of Civil Court order).]
3. That in light of the aforesaid change in circumstances, the continuance of the maintenance order dated [Date of Order] in its present form is unjust/no longer tenable.
4. That this application is being filed bonafide and in the interest of justice.
PRAYER:
It is, therefore, most respectfully prayed that this Hon’ble Court may be pleased to:
[Choose applicable prayer:]
a) Alter the order dated [Date of Order] passed in Crl. Misc. Case No. [Case Number] of [Year], and accordingly [increase/decrease] the monthly allowance for maintenance/interim maintenance from Rs. [Current Amount]/- to Rs. [Proposed Amount]/-.
b) Cancel the order dated [Date of Order] passed in Crl. Misc. Case No. [Case Number] of [Year] as from [specify date of remarriage/receipt of sum/surrender/civil court decision].
c) Pass any other order or direction which this Hon’ble Court deems fit and proper in the facts and circumstances of the case.
AND FOR THIS ACT OF KINDNESS, THE PETITIONER/APPLICANT SHALL EVER PRAY.
Place: [City]
Date: [Date]
[Signature of Petitioner/Applicant]
[Name of Petitioner/Applicant]
[Signature of Advocate for Petitioner/Applicant]
[Name of Advocate]
[Enrollment No.]