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2009 DIGILAW 197 (CAL)

Paramita Mondal v. Nishit Mondal

2009-03-06

PARTHA SAKHA DATTA

body2009
Judgment :- P.S DATTA, J. (1) The order dated 7th February 2006 passed by the learned Judicial Magistrate, 4th Court, Alipore in Misc. Case No. 629/03 under section 125 of the Cr.P.C. is under challenge. (2) I have heard the learned Advocates for the parties. On the basis of the application u/s 125 Cr.p.c. which was filed sometime in the year of 2003 praying for maintenance u/s 125 Cr.p.c. the learned Magistrate granted maintenance @ Rs. 1000/-for the wife petitioner and Rs. 800/-for the child with effect from the date of filing of the petition which was 2nd September 2003. Being aggrieved with the quantum of maintenance this present application has been filed on the ground that the amount of maintenance is not commensurate to the income of the husband who is a railway employee. It is the submission of the learned Advocate for the petitioner that the monthly salary of the opposite party herein was more than Rs. 10,000/-and in such circumstances, a paltry sum of Rs. 1800/-was granted which is inadequate to meet the basic requirement of the petitioner and her children. Accordingly prayer has been made for enhancement of the amount of maintenance. (3) Learned Advocate for the opposite party draws my attention to that fact that an application u/s 127 Cr.p.c. has been filed by the petitioner before the learned Magistrate praying for enhancement of the amount of maintenance and in view thereof the present application u/s 482 Cr.p.c. praying for enhancement of the amount of maintenance by modification of the order impugned is not warranted. (4) According to the learned Advocate for the petitioner, whatever the amount the learned Magistrate may provide for by way of enhancement of the amount of maintenance pursuant to the application u/s 127 Cr.p.c. the same may in all probability be prospective, while the present application u/s 482 Cr.p.c. has been filed praying for modification of the magisterial order dated 7th February 2006 by enhancing the amount of maintenance; and order of enhancement if passed by this court will be effective from 2nd September 2003 which is the date from which the order of the learned Magistrate was to take effect from. Therefore, it is the submission that the proceeding u/s 127 Cr.p.c. has no nexus with the present application. Therefore, it is the submission that the proceeding u/s 127 Cr.p.c. has no nexus with the present application. (5) It appears from the order of the learned Magistrate that at the time of trial of the case which was the later part of the year 2005, the salary of the opposite party no. 1 herein was Rs. 10,000/-at the gross and after deduction he was getting Rs. 5125/-per month. Learned Advocate for the petitioner submitted that roughly a sum of Rs. 5000/-was deducted from the gross salary but the entire of which cannot be taken into consideration as deductions which were not mandatory or compulsory have not to be taken into account while calculating the net income. This is no doubt a point but the learned Magistrate considered the gross salary of the opposite party as per the pay slip for the month of November 2005 and on the basis of the pay slip for the month of November 2005 the order of maintenance was made effective from 2nd September 2003. This is a factor that must not be lost sight of. Today we are in the year of 2009. There is a good logic to say that a sum of Rs. 1000/-is not sufficient for maintenance of the wife and as the child grows, his requirement becomes progressive. At the same time, the salary of the husband has also increased. The learned Magistrate in the impugned order observed that the petitioner herein would be at liberty to avail the scope of section 127 Cr.p.c. from time to time as and when the circumstance would require. As an application u/s 127 Cr.p.c. has been filed by the petitioner praying for enhancement of the amount of maintenance the court does not feel that the amount of maintenance granted in the impugned order, should be modified by enhancement so as to make it effective from 2nd September 2003 on the basis of the pay slip for the month of November, 2005. (6) In the circumstance, subject to the observation as above, the application is dismissed.