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2006 DIGILAW 287 (RAJ)

Pushpa v. Jagdish Lal

2006-01-30

H.R.PANWAR

body2006
Judgment H.R. Panwar, J.-By the instant criminal revision petition, the petitioner who is the wife of non-petitioner Jagdish Lal, seeks enhancement of the maintenance allowance and assailed the order dated 210.2003 passed by the Judge, Family Court, Udaipur (for short, “the Family Court”) in Criminal Misc. Case No. 825/2002, by which the Family Court dismissed the application filed by the petitioner under Section 127 of the Code of Criminal Procedure, 1973 (for short, “the Code” hereinafter). 2. I have heard learned Counsel for the parties. 3. The petitioner, who is the wife of non-petitioner, on an application filed by her under Section 125 of the Code, was granted maintenance @ Rs. 200/-per month vide order dated 04.04.1989 passed by the Family Court. However, subsequently, with the change in the circumstances as also increase in the income of the non-petitioners and the inflation in market rates, the petitioner filed an application under Section 127 of the Code for enhancement of the maintenance, which was allowed vide order dated 05.03.1993 enhancing the maintenance from Rs. 200/-to Rs. 400/-. Again, on 111.2002, the petitioner filed an application under Section 127 of the Code for enhancement of maintenance, which has been dismissed vide impugned order. Hence, this revision petition. 4. I have heard learned Counsel for the parties. Carefully gone through the impugned order as also the record of the Family Court. 5. From the perusal of the record and the order impugned, it appears that initially the petitioner was granted maintenance @ Rs. 200/-per month vide order dated 04.04.1989. However, on a subsequent application under Section 127 of the Code, vide order dated 05.03.1993, the maintenance was enhanced from Rs. 200/-to Rs. 400/-per month with the consent of the parties. Thereafter, with the change in the circumstances, including increase in the income of the non-petitioner and the inflation in market rates, the petitioner again filed an application under Section 127 of the Code on 111.2002. The parties produced evidence before the Family Court. The Family Court, vide impugned order, dismissed the application on the ground that earlier the order dated 05.03.1993 enhancing the maintenance from Rs. 200/-to Rs. 400/-per month was passed with the consent of the parties and, therefore, the petitioner is estopped to seek further enhancement of the maintenance allowance in view of the compromise. 6. The Family Court, vide impugned order, dismissed the application on the ground that earlier the order dated 05.03.1993 enhancing the maintenance from Rs. 200/-to Rs. 400/-per month was passed with the consent of the parties and, therefore, the petitioner is estopped to seek further enhancement of the maintenance allowance in view of the compromise. 6. Section 127(1) of the Code provides that on proof of a change in the circumstances, of any person, receiving under Section 125 of a monthly allowance for the maintenance or interim maintenance, or ordered under the same section to pay a monthly allowance for the maintenance, or interim maintenance, to his wife, child, father or mother, as the case may be, the Magistrate may make such alteration, as he thinks fit, in the allowance for the maintenance or the interim maintenance, as the case may be. Thus, from the bare reading of Section 127(1) of the Code, it is more than clear that on the proof of change in circumstance of any person receiving maintenance or liable to pay the maintenance, the Court is required to make alteration as it thinks fit on the evidence produced by the parties. 7. In the instant case, the Family Court, instead of appreciating the evidence led by the parties for alteration in maintenance allowance, concluded that in the earlier proceedings, by the order dated 05.03.1993, the maintenance was enhanced with the consent of the parties. Merely because the earlier order was passed with the consent of the parties, which may be on the facts and circumstances prevailing on the date of the order, the petitioner, who is wife of non-petitioner, cannot be deprived to seek alteration or enhancement in the maintenance allowance on the proof of change in the circumstances. What is necessary for the Court is to adjudge the change in the circumstances on proof of evidence and if the Court comes to the conclusion that there is change in the circumstances warranting enhancement of maintenance allowance then the Court is under an obligation to pass appropriate order in that respect. In the circumstances, therefore, the impugned order cannot be sustained and liable to be set aside. 8. Consequently, the revision petition is allowed. The impugned order dated 210.2003 passed by the Family Court, Udaipur in Criminal Case No. 825/2002, is set aside. In the circumstances, therefore, the impugned order cannot be sustained and liable to be set aside. 8. Consequently, the revision petition is allowed. The impugned order dated 210.2003 passed by the Family Court, Udaipur in Criminal Case No. 825/2002, is set aside. The matter is remanded to the Family Court, Udaipur to decide the application under Section 127 of the Code filed by the petitioner afresh by appreciating the evidence produced by the parties in accordance with law.