Section 127 and 128 CrPC: Alteration and Enforcement of Maintenance Orders
Sections 127 and 128 of the Code of Criminal Procedure, 1973 dealt with alteration of maintenance or interim maintenance and enforcement of maintenance orders. This article explains the provisions as they stood under the CrPC immediately before the Bharatiya Nagarik Suraksha Sanhita, 2023 came into force.
Meaning of Section 127 CrPC - Alteration in Allowance
Section 127 operated after an order under Section 125 CrPC. Its central purpose was to permit modification of maintenance when relevant circumstances changed and to coordinate a criminal court maintenance order with later decisions of a competent civil court.
Section 127(1): Change in circumstances
On proof of a change in the circumstances of a person receiving maintenance or interim maintenance under Section 125, or of a person ordered to pay it to a wife, child, father or mother, the Magistrate could make such alteration in the allowance as considered fit.
Section 127(2): Effect of decision of competent Civil Court
If, because of a decision of a competent Civil Court, an order under Section 125 ought to be cancelled or varied, the Magistrate was required to cancel or vary the order accordingly.
Section 127(3): Divorced woman
Where an order under Section 125 had been made in favour of a divorced woman, the provision required cancellation in specified situations, including remarriage, receipt of the whole sum payable on divorce under applicable customary or personal law, or voluntary surrender after divorce of the right to maintenance or interim maintenance, subject to the statutory conditions and effective dates.
Section 127(4): Adjustment by Civil Court
When making a decree for recovery of maintenance or dowry for a person who had been awarded maintenance or interim maintenance under Section 125, the Civil Court was required to take into account sums already paid or recovered under the Section 125 order.
What amounts to a change in circumstances?
The expression "change in the circumstances" is broad and fact-dependent. In an application under Section 127, the party seeking alteration had to establish a material change relevant to the existing maintenance order. The Magistrate could then increase, reduce or otherwise alter the allowance as justified by the proved circumstances.
Section 127 CrPC State Amendments
The CrPC contained State amendments affecting Section 127. The uploaded page records amendments for Madhya Pradesh, West Bengal and Maharashtra. State-specific amendments must be read with the Central enactment and the law applicable to the proceeding.
Madhya Pradesh: the State amendment substituted references so as to include grandfather and grandmother along with father and mother for the specified purpose.
West Bengal and Maharashtra: the historical amendments addressed the former statutory monetary ceiling/proviso and related wording. Because the Central provision was later amended, the current relevance of an older State amendment should be checked against the operative text for the relevant period.
Meaning of Section 128 CrPC - Enforcement of Order of Maintenance
Section 128 provided the mechanism for obtaining and enforcing a maintenance order. A copy of an order for maintenance or interim maintenance and expenses of proceedings was to be supplied without payment to the person in whose favour the order was made, to the guardian where applicable, or to the person to whom the amount was payable.
The order could be enforced by a Magistrate in a place where the person against whom it was made might be, after the Magistrate was satisfied about the identity of the parties and non-payment of the maintenance, interim maintenance or expenses due.
Section 128 CrPC State Amendment
Andhra Pradesh and Telangana: the State amendment omitted the expression limiting enforcement by reference to the place where the person against whom the order was made might be. The applicable State amendment and territorial law should be verified for the relevant proceeding.
Difference between Sections 127 and 128 CrPC
Section 127 concerned alteration, variation or cancellation of an existing maintenance order in the circumstances specified by law. Section 128 concerned supply and enforcement of the maintenance order. In practical terms, Section 127 dealt with changing the obligation, while Section 128 dealt with enforcing the order that remained payable.
Related CrPC Provisions
Sections 127 and 128 formed part of Chapter IX of the CrPC, following Sections 125 and 126 on maintenance and procedure. The next chapter dealt with maintenance of public order and tranquillity, beginning with Sections 129 and 130 CrPC.
This article is a general legal information resource on the pre-BNSS CrPC framework and is not a substitute for advice on the facts of a particular case.