Question: Can I claim for increasing maintenance in mutual consent divorce? Whether maintenance granted under consent terms in mutual divorce can be directly enhanced under 127 crpc without any order under 125 crpc.
Asked from: Goa
The decree of mutual consent is a consent decree hence, parties are bound by the terms and conditions of the decree. If the decree is silent about the increase of the amount of maintenance by efflux of time the decree holder (wife) can move a fresh application to the same court who has passed the decree for the enhancement of the amount of maintenance.
No need to approach the court under Section 125 of the Code of Criminal Procedure. In this suit the terms of Section 125 crpc or chapter IX of the CrPC will not apply. Hence, the court shall not entertain your application under Section 127 crpc for increasing the monthly maintenance.
Increasing maintenance in mutual consent divorce
The court can enhance the amount of maintenance under Section 127 crpc if an order under Section 125 has been in force. In your case no such order is in force. So you should approach the family court through a fresh application under Section 151 cpc (the code of civil procedure) for amendment of decree (enhance the amount of alimony). Don’t move an interlocutory application because the suit has already been decreed.
In Janakirama Iyer v. P. M. Nilakanta Iyer A.I.R. 1962 S.C. 633 the Supreme Court had declared that an amendment can be made by the court which has passed the decree.
