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2008 DIGILAW 186 (HP)

Rajesh Kumar v. Neelam Bhardwaj

2008-05-02

KULDIP SINGH

body2008
JUDGMENT (Kuldip Singh, J.) - The revision petition has been directed against the order dated 30.8.2001 passed by learned Session Judge, Kinnaur Division at Rampur Bushehar in Criminal Revision No. 8 of 2006 fixing maintenance at the rate of Rs.1200/- per month in favour of respondent from 15.9.2005 the date of filing of the application under Section 127 Code of Criminal Procedure 1973 (for short Code) 2.The facts, in brief are that respondent/wife filed application under Section 125 of the Code being case No. 144-4 of 2002 for grant of maintenance against the petitioner / husband in the Court of learned Sub divisional Judicial Magistrate, Rampur. The matter was compromised and the learned Sub divisional Judicial Magistrate on 14.10.2003 awarded maintenance at the rate of Rs.450/- per month with effect from 1.11.2003 in favour of respondent and against the petitioner. The respondent on 15.9.2005 filed an application under Section 127 of the Code for modification of order dated 14.10.2003 which was registered as case No. 183-4 of 2005. The respondent/wife in the application under Section 127 of the Code has alleged that the prices have increased, the petitioner is earning more than Rs.10,000/- per month by working as an electrician. He has landed property, he can easily afford Rs.2500/- per month as maintenance to the respondent and, therefore, prayer was made for modification of maintenance from Rs.450 to Rs.2500 per month from the date of filing of the application. 3.The application was opposed by petitioner/husband by filing reply. It was submitted that respondent is working with Himachal Pradesh Forest Department at Village Oddi. She is owner of an apple orchard. There is no increase of prices as alleged by the respondent. The petitioner is earning Rs.1500 per month by working as labourer with electrician. The work of petition is not continuous. The petitioner has no landed property. The petitioner can only afford Rs.450/- per month as earlier ordered by the Court. 4.The respondent filed rejoinder and denied that she is working in Himachal Pradesh Forest Department at Oddi or she is having any orchard. She has submitted that she is having a small ancestral holding which is also in possession of her old mother and she does not have any independent source of income. 4.The respondent filed rejoinder and denied that she is working in Himachal Pradesh Forest Department at Oddi or she is having any orchard. She has submitted that she is having a small ancestral holding which is also in possession of her old mother and she does not have any independent source of income. The learned Judicial Magistrate Rampur Bushehar enhanced the maintenance of respondent from Rs.,450/- to Rs.600/- per month from the date of passing of the order which was passed on 30.10.2006. The respondent assailed the order dated 30.10.2006 by way of criminal revision No. 8 of 2006, the learned Session Judge set aside the order dated 30.10.2006 and granted maintenance to respondent at the rate of Rs.1200/- per month from the date of filing of the application under Section 127 of the Code, hence this revision by husband. 5.I have heard the learned counsel for the parties and gone through the record. Mr.Sanjeev Bhushan, learned counsel for the petitioner, has submitted that on the basis of compromise on 14.10.2003 the learned Sub divisional Judicial Magistrate, Rampur allowed maintenance at the rate of Rs.450/- per month to respondent w.e.f. 1.11.2003. The respondent filed application under Section 127 of the Code on 15.9.2005. In the application, the respondent has alleged that the petitioner is earning more than Rs.10,000/- per month. There is increase in prices and therefore, instead of Rs.450/- per month she should be granted maintenance at the rate of Rs.2500/- per month. He has submitted that in two years neither the prices have increased approximately three times nor there is allegation in the application that income of the petitioner has increased approximately three times from 14.10.2003 when the maintenance was fixed at Rs.450/- per month. Mr.Bhushan has submitted that learned Judicial Magistrate had given the appropriate increase to the respondent by increasing the maintenance from Rs.450 to Rs.600 per month but learned Session Judge has erred in enhancing the maintenance to Rs.1200/- per month from the date of filing the application. The increase is excessive keeping in view the income of the petitioner. The respondent has failed to adduce legal evidence on record to show the increase in income of the petitioner. The increase is excessive keeping in view the income of the petitioner. The respondent has failed to adduce legal evidence on record to show the increase in income of the petitioner. The learned counsel for the respondent has submitted that petitioner is able bodied person and even if it is assumed that petitioner is working as an electrician in that case also, his income cannot be less than Rs.120 per day or Rs.3600 per month. The petitioner has no other liability, therefore, maintenance at the rate of Rs.1200 per month fixed by learned Session Judge is just and legal. It is only 1/3rd of the income of the petitioner and cannot be termed excessive. The learned counsel for the respondent has supported the impugned judgment. 6.PW-1 Neelam has stated that prices have increased and maintenance of Rs.450 per month awarded in her favour is not sufficient to maintain her. The petitioner is working as an electrician and his wages have increased. He has an apple orchard as well as furniture industry in the name Navyuvak. The income of the petitioner is Rs.5 lac per annum from orchard and industry. She requires at least Rs.2500 per month. In cross examination, she has stated that she is living with her mother and sister at Village Badogi, Tehsil Kumarsain. She has denied that she is working in Forest Department in Village Oddi on daily wages. She has denied that petitioner belongs to IRDP. 7.PW-2 Rajneesh Kumar has stated that the he remained Vice President of Gram Panchayat, Deeb from 1999 to 2005 and respondent is resident of his Panchayat, she does not have any source of income, she has an old orchard and for lack of maintenance hardly 15-20 boxes of apple are produced in that orchard. In cross examination, he has stated that respondent does not come in IRDP. PW-3 Jawahar Kaith, investigator, Department of Labour Bureau Shimla has produced Ext.PW-3/A prices index of consumable goods. RW-1 Gian Chand Secretary Gram Panchayat, Chanju, Chopal has proved Ext. RW-1/A copy of Parivar Registrar of Urmila wife of Mela Ram wherein Rajesh Kumar has been shown in the family of Urmila. He has proved IRDP Certificate Ext. RW-1/A of Urmila wife of Mela Ram. RW-2 Jalam Singh has proved Jamabandi Ext.RW-2/A, RW-3 Rajesh Sharma has stated that he is working with a contractor as electrical on Rs.1400 per month. He belongs to IRDP family. He has proved IRDP Certificate Ext. RW-1/A of Urmila wife of Mela Ram. RW-2 Jalam Singh has proved Jamabandi Ext.RW-2/A, RW-3 Rajesh Sharma has stated that he is working with a contractor as electrical on Rs.1400 per month. He belongs to IRDP family. He is paying Rs.450 per month to the respondent which is sufficient for her. In cross examination he has stated that he is owner of Navyuvak furniture industry, again said that industry is owned by his elder brother. He has denied that his family owns three hundred bighas land. He has also denied that he is earning Rs.5 lacs from his orchard. 8.The respondent had filed application for enhancement of maintenance on the ground that income of the petitioner has increased and it is not possible for her to maintain herself in Rs.450 per month maintenance awarded by the Court earlier. In support of increase in prices, she has proved Ext.PW-3/A consumer price index for industrial workers. The respondent has not alleged and proved what was the income of the petitioner when maintenance at the rate of Rs.450 per month was awarded by the learned Sub divisional Judicial Magistrate on 14.10.2003 on the basis of compromise between the parties. The respondent in Section 127 application has stated that the petitioner is earning Rs.10,000 per month by working as electrician. He is also earning from his orchard. There is no allegation in the application that the petitioner is running an industry in the name of Navyuvak furniture industry. The learned counsel for the respondent has stated that petitioner has admitted that he is owner of Navyuvak furniture industry in his cross examination. It appears that this part of the statement of the respondent is nothing but slip of tongue otherwise he has corrected himself by stating that this industry is owned by his brother. The respondent could have proved that the said industry is owned by his brother. The respondent could have provided that the said industry is owned by the petitioner by producing recorded from Industry Department Electricity Board etc. so as to show that in fact petitioner is owner of the said industry. In the petition, the respondent has alleged that petitioner is earning from his orchard as well as working as electrician. It is not the case of the respondent that petitioner is working as electrical contractor. so as to show that in fact petitioner is owner of the said industry. In the petition, the respondent has alleged that petitioner is earning from his orchard as well as working as electrician. It is not the case of the respondent that petitioner is working as electrical contractor. In these circumstances, it can be safely inferred that the petitioner is working with a contractor. The petitioner has stated that he is earning Rs.1400 per month by working as an Electrician. This part of the statement of the petitioner is not believable. The petitioner is self employed in an unorganised sector. There is no assured employment for whole month. It is well known that daily wages of the labour in the rural areas are not same in urban areas. In absence of other material on record, it can be safely assumed that petitioner must be earning Rs.120 per day or Rs.3600 per month or an average. In these circumstances, the monthly income of the petitioner can be safely assumed Rs.3600/-./ There is nothing on record that except respondent there is other responsibility on the petitioner. No doubt, it has been established that petitioner is owner of some land but simultaneously it has been proved that he belongs to IRDP family on the basis of certificate Ext.RW1/A. In these circumstances, it can be inferred that the family of the petitioner headed by his mother is having very small income from the agricultural property. PW-2 Rajneesh Kumar has proved that respondent has an orchard by income from that orchard is also very meager. The petitioner being an electrician is required to move from place to place during the course of his employment and is expected to incur some expenses on transport. The learned Session Judge has assessed the monthly income of the petitioner on the higher side and consequently the maintenance of the respondent has also been fixed on the higher side, therefore, impugned order is liable to be modified. In the facts and circumstances of the case, the petitioner can spare Rs.900/- per month keeping in view the fact that income of the petitioner has been held to be Rs.3600 per month. 9.The result of the above discussions is that the revision petition is partly allowed and order dated 30.8.2001 passed by learned Session Judge, Kinnaur Division at Rampur Bushehar in Criminal Revision No. 8 of 2006 is modified. 9.The result of the above discussions is that the revision petition is partly allowed and order dated 30.8.2001 passed by learned Session Judge, Kinnaur Division at Rampur Bushehar in Criminal Revision No. 8 of 2006 is modified. The petitioner shall be liable to pay maintenance to respondent at the rate of Rs.900 per month w.e.f. the date of filing the application under Section 127 of the Code i.e. 15.9.2005. Cr. M.P. Nos. 598 and 599 of 2007 In view of the disposal of the revision petition, the application have been infructuous. M.R.B. ———————