Supreme Court of India
S Vijikumari vs Mowneshwarachari C on 10 September, 2024
Author: B.V. Nagarathna
Bench: B.V. Nagarathna
2024 INSC 732 REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. OF 2024
(ARISING OUT OF SLP(CRL.) NO. 5342 OF 2023)
S VIJIKUMARI APPELLANT(S)
VERSUS
MOWNESHWARACHARI C RESPONDENT(S)
JUDGMENT
NAGARATHNA, J.
Leave granted.
2. Being aggrieved by the order dated 06.04.2023 passed
in Criminal Revision Petition No.674/2022 by the High Court
of Karnataka at Bengaluru, the appellant who is the wife of
the respondent has preferred this appeal.
3. Briefly stated, the facts are that the appellant-wife had
filed a petition under Section 12 of the Protection of Women
from Domestic Violence Act, 2005 (hereinafter referred to as
Signature Not Verified
Digitally signed by
RADHA SHARMA
Date: 2024.09.25
12:47:23 IST
Reason:
“the Act”). The said petition, i.e., Criminal Miscellaneous
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No.6/2014 was allowed by the learned Magistrate by order
dated 23.02.2015, granting Rs.12,000/- (Rupees Twelve
Thousand only) per month as maintenance and
Rs.1,00,000/- (Rupees One Lakh only) towards
compensation. At this stage itself, it may be mentioned that
the respondent-husband did not let in any evidence in the
said proceeding. Being aggrieved by the order of the learned
Magistrate, the respondent filed an appeal under Section 29
of the Act which was dismissed by the Appellate Court on the
ground of delay. The aforesaid orders attained finality as they
were not assailed by the respondent herein.
4. Thereafter, the respondent filed an application under
Section 25 of the Act before the learned Magistrate. The said
application was dismissed. Being aggrieved, the respondent
filed Criminal Appeal No.757/2020 under Section 29 of the
Act before the Appellate Court. The said appeal was allowed
and the matter was remanded to the learned Magistrate with
a direction to consider the application filed by the respondent
under Section 25 of the Act, by giving an opportunity to both
the parties to adduce their evidence and to dispose of the
same in accordance with law.
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5. Being aggrieved by the said order, the appellant herein
filed Criminal Revision Petition No.674/2022 before the High
Court, which, by the impugned order dated 06.04.2023
dismissed the same with a direction to the learned Magistrate
to consider the application filed by the respondent under
Section 25 of the Act, without being influenced by any
observation made by the Appellate Court while disposing of
Criminal Appeal No.757/2020.
Being aggrieved by the aforesaid orders, the appellant-
wife has filed this appeal.
6. We have heard learned counsel for the respective parties
at length.
7. Learned counsel for the appellant, during the course of
her submissions, drew our attention to the prayers sought for
by the respondent in the application filed under Section 25 of
the Act, in light of sub-section (2) of the said Section. She
submitted that the application filed under the said provision
could be by an aggrieved person seeking alteration,
modification or revocation of any order made under the Act
and for reasons to be recorded in writing, the learned
Magistrate can pass such an order appropriate to the facts of
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the case. But in the instant case, the respondent is seeking
setting aside of the order dated 23.02.2015 passed in
Criminal Miscellaneous No.6/2014 and with an additional
prayer for seeking return of the entire amount of
maintenance paid by the respondent to the appellant on the
ground of fraud. Learned counsel for the appellant submitted
that such prayers are not maintainable. She contended that
the aforesaid application is not for alteration, modification or
revocation of an order made under the Act; it is in substance
for setting aside of the order dated 23.02.2015 passed in
Criminal Miscellaneous No.6/2014; that such an application
is not maintainable at all.
8. Learned counsel further submitted that the High Court
as well as the Appellate Court were not right in remanding
the matter to the learned Magistrate to consider the
application filed by the respondent herein under sub-section
(2) of Section 25 of the Act. She therefore submitted that the
impugned orders may be set aside and the application filed
by the respondent may be dismissed and consequently, the
earlier order passed on 23.02.2015 in Criminal Miscellaneous
No.6/2014 may be given effect to while sustaining the order
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dated 04.03.2020, by which the application under Section 25
of the Act was dismissed.
9. Per contra, learned counsel for the respondent
submitted that the reason as to why the application under
Section 25 of the Act was filed was owing to the fact that the
appellant herein had misrepresented the fact that she was in
need of maintenance whereas she is an employed person and
not at all in need of maintenance. The fact that she had said
that she was unemployed goes to the root of the matter and
hence, despite the order of the learned Magistrate awarding
Rs.12,000/- (Rupees Twelve Thousand Only) per month as
maintenance having attained finality, an application under
Section 25 of the Act was filed seeking revocation of the said
order and the Appellate Court as well as the High Court were
justified in directing the learned Magistrate to consider the
said application.
10. We have considered the arguments advanced at the Bar
in light of the facts of this case and Section 25 of the Act. For
immediate reference, Section 25 of the Act is extracted as
under:
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“25. Duration and alteration of orders
(1) A protection order made under section 18
shall be in force till the aggrieved person
applies for discharge.
(2) If the Magistrate, on receipt of an
application from the aggrieved person or the
respondent, is satisfied that there is a
change in the circumstances requiring
alteration, modification or revocation of any
order made under this Act, he may, for
reasons to be recorded in writing pass such
order, as he may deem appropriate.”On a reading of the same, it is evident that an aggrieved
person or a respondent as defined under the Act can seek for
alteration, modification or revocation of an order made under
the provisions of the Act if there is a change in the
circumstances as per sub-section (2) of Section 25 of the Act.
This would indicate that after an order has been made, inter
alia, under Section 12 of the Act, such as in the instant case
granting Rs.12,000/- as maintenance per month, if there is
any change in the circumstance, the same could be a ground
for seeking alteration, modification or revocation of such an
order. Such circumstances could be illustratively stated in
the context of the present case as the wife on divorce having
been given an alimony or the wife earning an amount higher
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than the respondent-husband and, therefore, not in need of
maintenance or such other circumstances. The said change
in the circumstance must occur only after an initial order is
made under Section 12 of the Act and cannot relate to a
period prior to the passing of an order under Section 12 of
the Act.
11. The Act is a piece of Civil Code which is applicable to
every woman in India irrespective of her religious affiliation
and/or social background for a more effective protection of
her rights guaranteed under the Constitution and in order to
protect women victims of domestic violence occurring in a
domestic relationship.
12. Section 25(2) of the Act contemplates an eventuality
where an order passed under the Act can be altered, modified
or revoked. Section 25(2) of the Act provides that the
aggrieved person or the respondent, as defined under the Act,
may approach the Magistrate by filing an application for
alteration, modification or revocation of “any order” made
under the Act. Thus, the scope of Section 25(2) of the Act is
broad enough to deal with all nature of orders passed under
the Act, which may include orders of maintenance, residence,
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protection, etc. If any such application is filed before the
Magistrate by any of the two parties, i.e., the aggrieved
person or the respondent, then the Magistrate may, for
reasons to be recorded in writing, pass an order as he may
deem appropriate. Thus, an order passed under the Act
remains in force till the time that order is either set aside in
an appeal under Section 29 of the Act, or
altered/modified/revoked in terms of Section 25(2) of the Act
by the Magistrate.
13. However, the Magistrate while exercising his discretion
under Section 25(2) of the Act has to be satisfied that a
change in the circumstances has occurred, requiring to pass
an order of alteration, modification or revocation. The phrase
“a change in the circumstances” has not been defined under
the Act. The said phrase was present under Section 489 of
the now repealed Code of Criminal Procedure, 1898, as well
as under Section 127(1) of the Code of Criminal Procedure,
1973 (CrPC, 1973), now repealed, as is also found under
Section 146(1) of the present Bharatiya Nagarik Suraksha
Sanhita, 2023 (BNNS, 2023), but the legislature (Parliament)
has intentionally not provided a definition for the same in the
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repealed Codes or the present Sanhita. Thus, the Magistrate
has to adjudge the change in the circumstances based on the
material put forth by the parties in a case and having regard
to the circumstances of the said case. A change in the
circumstances under the Act may be of either a pecuniary
nature, such as a change in the income of the respondent or
an aggrieved person or it could be a change in other
circumstances of the party paying or receiving the allowance,
which would justify an increase or decrease of the
maintenance amount ordered by the Magistrate to pay or any
other necessary change in the relief granted by the Magistrate
including a revocation of the earlier order. The phrasing of
the provision is wide enough to cover factors like the cost of
living, income of the parties, etc. Further, a change in the
circumstances need not just be of the respondent but also of
the aggrieved person. For example, a change in the financial
circumstances of the husband may be a vital criterion for
alteration of maintenance but may also include other
circumstantial changes in the husband or wife’s life which
may have taken place since the time maintenance was first
ordered.
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14. However, for the invocation of Section 25(2) of the Act,
there must be a change in the circumstances after the order
being passed under the Act. Alexander Sambath Abner vs.
Miron Lede, 2009 SCC OnLine Mad 2851 is also to the
same effect. Thus, an order for alteration, modification or
revocation operates prospectively and not retrospectively.
Though the order for grant of a maintenance is effective
retrospectively from the date of the application or as ordered
by the Magistrate, the position is different with regard to an
application for alteration in an allowance, which may
incidentally be either an increase or a reduction – to take
effect from a date on which the order of alteration is made or
any other date such as from the date on which an application
for alteration, modification or revocation was made depending
on the facts of each case.
15. The position is analogous to Sections 125 and 127 of the
CrPC, 1973, wherein the legislature under Section 125(2) of
the CrPC, 1973 had given power to the Magistrate to grant
maintenance from the date of the application, but did not give
any such power under Section 127 of the CrPC, 1973.
Therefore, under the Act, the order of alteration or
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modification or revocation could operate from the date of the
said application being filed or as ordered by the Magistrate
under Section 25(2) of the Act. Thus, the applicant cannot
seek its retrospective applicability, so as to seek a refund of
the amount already paid as per the original order.
16. The respondent herein has however sought the following
prayers in the application filed under Section 25 of the Act,
which read as under:
“WHEREFORE, the petitioner respectfully prays
that this Hon’ble Court may be pleased to pass the
following orders:
a) Set aside the order dated 23-02-2015
passed in Crl. Mis. 6/2014,
b) In pursuant of that direct the
respondent to pay back the entire
amount received by her by playing
fraud on the court and on petitioner.
c) Direct the respondent to pay the cost
of this litigation,
d) Grant such other relief or reliefs on
this Hon’ble Court deem fit and
proper in the circumstances of the
case to meet the ends of justice.”What the respondent is seeking is in fact a setting aside
of the order dated 23.02.2015 passed in Criminal
Miscellaneous No.6/2014 and return of the amount paid by
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him to the appellant herein in terms of the said order by wayof a restitution of the status quo ante.
17. Learned counsel for the appellant rightly contended that
the said order has in fact merged with the Appellate Court’s
order in the appeal filed by the respondent which was
dismissed on the ground of delay and there being no further
challenge to the said order. In fact, the order dated
23.02.2015 has attained finality. Therefore, there cannot be
a setting aside of the order dated 23.02.2015 for the period
prior to such an application for revocation being made.
Unless there is a change in the circumstance requiring
alteration, modification or revocation of the earlier order
owing to a change occurring subsequent to the order being
passed, the application is not maintainable. Thus, the
exercise of jurisdiction under sub-section (2) of Section 25 of
the Act cannot be for setting aside of an earlier order merely
because the respondent seeks setting aside of that order,
particularly when the said order has attained finality by its
merger with an appellate order as in the instant case unless a
case for its revocation is made out. Secondly, the prayers
sought for by the respondent herein are for refund of the
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entire amount of maintenance that was paid prior to the
application under sub-section (2) of Section 25 of the Act
being filed and the order dated 23.02.2015 passed in
Criminal Miscellaneous No.6/2014 being in fact revoked. The
revocation of an order, inter alia, under Section 12 of the Act
sought by a party cannot relate to a period prior to such an
order being passed. We find that in the instant case the
second prayer was not at all maintainable inasmuch as we
have already observed that any alteration, modification or
revocation of an order passed under Section 12 of the Act
owing to a change in circumstances could only be for a period
ex post facto, i.e., post the period of an order being made in a
petition under Section 12 of the Act and not to a period prior
thereto. Thus, such an application for alteration, modification
or revocation filed under sub-section (2) of Section 25 of the
Act cannot relate to any period prior to the order being
passed, inter alia, under Section 12 of the Act.
18. In the circumstances, we find that the prayers sought
for by the respondent herein were not at all maintainable
under sub-section (2) of Section 25 of the Act as they related
to the period prior to 23.02.2015 when the original order was
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passed. In fact, the prayers sought for by the respondent are
totally contrary to the spirit of sub-section (2) of Section 25 of
the Act. While making such a prayer, the respondent could
not have sought in substance for setting aside of the original
order dated 23.02.2015 passed in Criminal Miscellaneous
No.6/2014 and seeking refund of the maintenance amount
which was paid to the appellant pursuant to the said order.
The respondent could not have also sought the aforesaid
prayers: firstly, because he did not participate in the
proceedings before the learned Magistrate; secondly,
respondent belatedly filed an appeal before the Appellate
Court which was dismissed and thirdly, when that appeal
was dismissed on the ground of delay, he did not choose to
assail the said order before a higher forum.
19. In the circumstances, the orders of the High Court as
well as the first Appellate Court are set aside and the
application filed by the respondent is dismissed. However,
liberty is reserved to the respondent herein to file a fresh
application under Section 25 of the Act, if so advised. If such
an application is filed by the respondent, the same shall be
considered by the learned Magistrate having regard to the
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observations made above and on its own merits, which can be
relatable to the period subsequent to the date of making the
earlier order dated 23.02.2015 in the instant case. Any
revocation of the order dated 23.02.2015 could be with effect
from the date of the application, if any, to be made by the
respondent herein or as ordered by the learned Magistrate.
20. This appeal is allowed and disposed of in the aforesaid
terms.
Pending application(s), if any, shall stand disposed of.
…………………………………………………….,J.
(B.V. NAGARATHNA)
…………………………………………………..,J.
(NONGMEIKAPAM KOTISWAR SINGH)
NEW DELHI;
SEPTEMBER 10, 2024.
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