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2000 DIGILAW 890 (PAT)

Murali Mahto v. Premia Devi @ Premia Mehtaine

2000-07-19

D.N.PRASAD

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Judgment D.N.Prasad, J. 1. This Criminal Revision has been filed under Sec. 19(4) of the Family Courts Act against the order dated 27.9.1997 passed by Principal Judge, Dhanbad in Cr. Misc. No. 2/95 whereby and whereunder the learned Principal Judge had enhanced the maintenance payable to the opposite party from Rs. 200.00 to Rs. 500.00 per month under Sec. 127 of the Cr.P.C. 2. The opposite party, namely, Pramila Devi filed an application under Section 125 of the Cr.P.C. for maintenance from the petitioner/husband at the rate of Rs. 500.00 per month. The petitioner also appeared in the said case and after hearing both the parties, the Court below granted maintenance of Rs. 200.00 per month in favour of the opposite parry by an order dated 17.3.1994. 3. The opposite party again filed a petition under Sec. 127, Cr.P.C. on 29.8.1995 for enhancement of the maintenance amount from Rs. 200.00 to Rs. 500.00 per month. It was stated that the petitioner has married second time with Niriya Devi, daughter of Liloo Mahto and as such the maintenance of Rs. 200.00 may be enhanced to Rs. 500.00 per month. After hearing both sides, the Principal Judge enhanced the maintenance amount from Rs. 200.00 to Rs. 500.00 per month by order impugned, hence this revision. 4. The learned Counsel appearing on behalf of the petitioner submitted that there is no mention or assertion in the petition that the petitioner got employment or having any independent source of income after passing of the initial order under Sec. 125, Cr.P.C. It is also submitted that the petitioner is unemployed and there is ho independent source of income and so the order impugned for enhancement of maintenance of Rs. 500.00 per month is illegal and bad in law as there is no material to show that the petitioners income has been increased or he has been employed and earning sufficient money. 5. On the other hand, the learned Counsel for the opposite party contended before me that there is no illegality in the impugned order as the learned Magistrate has rightly enhanced the maintenance of opposite party who is having no source of income to maintain herself. It is further submitted that the opposite party gave out specifically in her petition filed under Sec. 127, Cr.P.C. that the petitioner performed second marriage with the daughter of Liloo Mahto. It is further submitted that the opposite party gave out specifically in her petition filed under Sec. 127, Cr.P.C. that the petitioner performed second marriage with the daughter of Liloo Mahto. Had there been no source of income to the petitioner, he would have not married second time. Whereas the opposite party is having no source of income and has been staying in her parents house and she has also been suffering from ailment due to mental torture as he has been deserted by the petitioner. It is further argued that from the evidence adduced it was found that the petitioner is doing tuition and also doing business of coal and as such the Court below has rightly enhanced the maintenance by the order impugned. 6. On perusal of the record, it appears that the maintenance was allowed to the opposite party @ Rs. 200.00 per month by order dated 17.3.1994. The opposite party again filed a petition for enhancement of maintenance and it was specifically asserted that the petitioner/her husband performed second marriage with Niriya Devi. It further appears that the witnesses examined before the Court below also deposed that the petitioner has been doing coal business and also earning a sum of Rs. 2500.00 per month by tuition and Rs. 2000.00 by way of being a School teacher. From the evidence it further appears that the petitioner has been possessing sufficient agricultural ancestral land in different villages. There is no doubt that the petitioner has been paying a sum of Rs. 200.00 per month as maintenance to the opposite party and it is also clear that a sum of Rs. 200.00 per month is very meagre amount for maintaining the life in these days when price level have increased sufficiently. 7. Sec. 127(1), Cr.P.C. reads as follows : On proof of a change in the circumstances of any person receiving under Sec. 125 a monthly allowance or ordered under the same section to pay a monthly allowance to his wife, child, father, or mother as the case may be, the Magistrate may make such altercation in the allowance as he thinks fit: Provided that if he increases the allowance, the monthly rate of five hundred rupees in the whole shall not be exceeded. 8. From the evidence collected, it is apparent that petitioner has been earning from tuition, teachership and sale of coal. 8. From the evidence collected, it is apparent that petitioner has been earning from tuition, teachership and sale of coal. It is also an admitted position that the petitioner already performed second marriage after deserting the opposite party. It is true that not any document about the said earning has been brought on record and as such it is very difficult to say about the actual earning of the petitioner but at the same time, it can also be said that a sum of Rs. 200.00 is very meagre amount for maintaining the life in these days. It is well settled that if the husband is able-bodied person and capable of working, then he is supposed to maintain his wife and to pay her maintenance. The learned Court below enhanced the amount to Rs. 500/ - for maintenance but admittedly there is no document to show about the actual earning of the petitioner and as such the enhancement to the tune of Rs. 500.00 appears to be unreasonable and not proper. 9. Considering the above facts and circumstance coupled with evidence on the record, a sum of Rs. 400.00 per month only, in my view, appears to be reasonable and proper for the monthly maintenance of the opposite party. In the result, the maintenance amount of Rs. 400.00 per month is allowed to the opposite party/ Premia Devi and the order dated 27.9.1997 is modified to that extent. 10. Thus, the revision petition is disposed of with the above modification.