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2006 DIGILAW 1551 (RAJ)

Chhtu Ram v. Parmeshwari

2006-05-08

J.R.GOYAL, S.N.JHA

body2006
JUDGMENT 1. - The case came up for hearing on an application under Article 226(3) of the Constitution of India. Counsel for the parties however agreed that the appeal itself may be disposed of finally, and accordingly made submissions. 2. This Special Appeal is directed against the order of the learned Single Judge dated 27.10.2005 in S.B. Civil Misc. Appeal No. 1409/2002 disposing of the appeal of the respondent with a direction that she be paid maintenance at the rate of Rs. 1500/- per month. The appeal had arisen from an order of the Matrimonial Court under Section 25 of the Hindu Marriage Act. The Matrimonial Court had initially allowed maintenance at the rate of Rs. 75/- per month vide order dated 23.12.1980. On 17.4.1995 the respondent filed application for enhancement of the amount to Rs. 1000/- per month. By order dated 13.3.2002 the amount was enhanced to Rs. 500/- per month.. The respondent's application was thus allowed in part; she however came to this court seeking further enhancement and, as indicated above, the learned Single Judge directed the appellant to pay maintenance at the rate Rs. 1500/- per month. 3. One of the contentions of the counsel for the appellant was that the order of learned Single Judge was in excess of the claim of the respondent. Whereas she claimed enhancement to Rs. 1000/- per month, the learned Single Judge held her entitled to Rs. 1500/- per month. 4. Counsel for the respondent submitted that the application for enhancement was made on 17.4.1995 and with the passage of time, value of money having further declined, the order of learned Single Judge holding her entitled to Rs. 1500/- per month in the circumstances cannot be said to be unreasonable to warrant interference in this special appeal. Counsel for respondent challenged the very maintainability of this appeal. He submitted that in view of Section 100A of the Civil Procedure Code this appeal arising from an appellate order of the learned Single Judge is not maintainable. Counsel also submitted that the appellant obtained interim order on 17.4.2006 by misrepresenting that he has been regularly paying maintenance from 13.3.2002 i.e. the date of the order of the Matrimonial Court, which is not true. 5. Counsel also submitted that the appellant obtained interim order on 17.4.2006 by misrepresenting that he has been regularly paying maintenance from 13.3.2002 i.e. the date of the order of the Matrimonial Court, which is not true. 5. Dealing with the last argument it was submitted by the counsel for appellant that the maintenance was to be paid from his salary but the concerned Authority namely Superintendent, Central Jail, Bharatpur, did not remit the money from the appellant's salary to the respondent. In the circumstances, the statement that the amount was being paid regularly from 13.3.2002 was made under bona fide belief that the amount must have been paid regularly by the Superintendent, Central Jail, Bharatpur. We find substance in the submission of the appellant's counsel.With reference to the question of maintainability of the appeal we may simply observe that the right of appeal is a substantive right and if on the date of institution of the suit there was a right of appeal, the same cannot be taken away by subsequent amendment. The bar contained in Section 100A CPC has to be applied with reference to the date of institution of the proceedings and not the date of order appealed against. 6. Coming to the main issue about the quantum of maintenance, it is true that the value of the money has declined considerably with the passage of time. In the instant case, however, the respondent was granted maintenance at the rate Rs. 75/- per month on 23.12.1980. After fifteen years she filed application for enhancement to Rs. 1000/- per month. The application was decided by the Matrimonial Court vide order dated 13.3.2002. It is this application which is being considered. We find substance in the case of the appellant that the learned Single Judge could not have granted maintenance in excess of the claim. May be, that passage of further period of ten years or so in the meantime, confers a right on the respondent to seek further enhancement. It is not out of place to mention here that the respondent has a major son living with her, who can supplement her needs. In such circumstances, we do not feel inclined to allow maintenance at the rate Rs. 1500/- per month as directed by the learned Single Judge. 7. It is not out of place to mention here that the respondent has a major son living with her, who can supplement her needs. In such circumstances, we do not feel inclined to allow maintenance at the rate Rs. 1500/- per month as directed by the learned Single Judge. 7. The order of the learned Single Judge is accordingly modifiea to the extent that the appellant is held entitled to Rs. 1000/- per month from the date of application.Appeal disposed of as above. *******