S. VIJIKUMARIversusMOWNESHWARACHARI C

                 [2024] 10 S.C.R. 45 : 2024 INSC 732

                             S. Vijikumari
                                    v.
                          Mowneshwarachari C
                     (Criminal Appeal No. 3989 of 2024)
                             10 September 2024
[B.V. Nagarathna* and Nongmeikapam Kotiswar Singh, JJ.]

                            Issue for Consideration
       Respondent sought refund of the entire maintenance amount which
       was paid to the appellant (wife of respondent).

                                  Headnotes†
       Protection of Woman from Domestic Violence Act, 2005 –
       s.25 – Respondent filed an application u/s. 25 of the Act and
       sought setting aside of order dated 23.02.2015 by which
       his appellant-wife was granted Rs.12,000/- per month as
       maintenance and Rs.1,00,000/- towards compensation –
       Respondent also sought return of the maintenance amount
       paid on the ground of fraud:
       Held: 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 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 – In the instant case, 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 – The second
       prayer (for refund of the entire amount of maintenance) was not
       at all maintainable inasmuch as 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


* Author
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      period prior to the order being passed, inter alia, under Section
      12 of the Act – Therefore, the prayers sought by the respondent
      were not maintainable under sub-section (2) of section 25 of the
      Act. [Paras 13, 17, 18]
      Protection of Woman from Domestic Violence Act, 2005 –
      Applicability of:
      Held: 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. [Para 11]

                              Case Law Cited
      Alexander Sambath Abner vs. Miron Lede, 2009 SCC OnLine
      Mad 2851 – referred to.

                                List of Acts
      Protection of Woman from Domestic Violence Act, 2005; Code
      of Criminal Procedure, 1898; Code of Criminal Procedure, 1973;
      Bharatiya Nagarik Suraksha Sanhita, 2023.

                             List of Keywords
      Women victims; Domestic Violence; Section 25 of Protection
      of Woman from Domestic Violence Act, 2005; Section 12
      of Protection of Woman from Domestic Violence Act, 2005;
      Alteration; Modification; Revocation; Change in circumstance;
      Refund of amount of maintenance.

                            Case Arising From
      CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 3989
      of 2024
      From the Judgment and Order dated 06.04.2023 of the High Court
      of Karnataka at Bengaluru in CRLRP No.674 of 2022
                         Appearances for Parties
      Ms. Sruti Chaganti, Shekhar Badiger, N. Sai Vinod, Advs. for the
      Appellant.
      Ms. Harsha Tripathi, Balaji Srinivasan, Advs. for the Respondent.
[2024] 10 S.C.R.                                                           47

                     S. Vijikumari v. Mowneshwarachari C


                Judgment / Order of the Supreme Court
                                 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 “the Act”). The said petition,
     i.e., Criminal Miscellaneous 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.
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.
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      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 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 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
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                     S. Vijikumari v. Mowneshwarachari C


     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:
           “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 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.
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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, 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 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
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                     S. Vijikumari v. Mowneshwarachari C


     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.
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 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.
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           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 him to the appellant herein in terms of
      the said order by way of 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 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.
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                     S. Vijikumari v. Mowneshwarachari C


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 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 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.

     Result of the Case: Appeal allowed.



     †
         Headnotes prepared by: Ankit Gyan