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2010 DIGILAW 443 (CAL)

Sanchita Sengupta v. Asok Sengupta

2010-04-26

ASHIM KUMAR ROY

body2010
JUDGMENT: 1. IN connection with a proceeding under Section 125 of the Code of Criminal Procedure in the year 2002, the petitioner/wife and her minor child each was awarded an amount of Rs. 1,250/- per month as their monthly maintenance. Thereafter, in the year 2007, she moved another application under Section 127 of the Code of Criminal Procedure for enhancement of the maintenance on various grounds. The Learned Magistrate turned down her prayer for enhancement but allowed the same in respect of the minor child and increased it to Rs. 2,000/- from Rs. 1,250/- per month. Hence, this criminal revision. 2. HEARD Ms. Sanghamitra Nandy, the learned advocate appearing for the petitioner/wife as well as Mr. Bratindra Narayan Ray, the learned advocate appearing for the opposite party/husband. Perused the impugned order and the other materials on record. Ms. Nandy, the learned advocate for the petitioner/wife vehemently urged before this Court that the order of maintenance was passed in the year 2002, when the child was reading in Class-Nursery but by now prices have increased to such an extent it becomes practically impossible to maintain both herself and her minor child. She further submitted that the opposite party/husband is admittedly employed in the office of the Zonal Director General, Foreign Trade, Ministry of Commerce and Industries, Government of India and now he is earning Rs. 23,756/- per month. In such circumstance, not only it is essential due to the price rise the amount of maintenance be enhanced but also at the same time if such amount of maintenance is enhanced, no prejudice will be caused to the opposite party/husband. She had also drawn the attention of this Court to the fact that admittedly the mother of the opposite party/husband was regularly getting pensions. On the other hand, Mr. Bratindra Narayan Ray, the learned advocate appearing for the opposite party/husband vehemently resisted this criminal revision and submitted before this Court that the petitioner/wife on her own, left her matrimonial home and the opposite party/husband has filed suit for Restitution of Conjugal Right but due to her non-appearance, the suit has been finally dismissed. He further submitted that thereafter the opposite party/husband has filed an application for dissolution of the marriage. According to the learned advocate for the opposite party/husband at the present moment, he was only drawing Rs. He further submitted that thereafter the opposite party/husband has filed an application for dissolution of the marriage. According to the learned advocate for the opposite party/husband at the present moment, he was only drawing Rs. 10,500/- per month and therefore, the question of enhancement of maintenance not at all arose. 3. I have given my anxious and thoughtful consideration to the rival submissions of the parties. This is a case where neither the marriage in between the parties nor the paternity of the child is in dispute. I find while passing the order under Section 125 of the Code of Criminal Procedure, a competent Court has come to a definite conclusion that the wife/petitioner and her minor child are entitled to maintenance and the same has reached its finality. Therefore, the adjudication of the same whether they are entitled to maintenance or not, is not at all called for. The matrimonial suit for dissolution of marriage before the civil court and the maintenance proceeding before the revisional court worked in two different fields and one is independent to other and of one is not bar in continuation to the other. 4. BE that as it may, this is a case where the subject matter of challenge is enhancement of maintenance of the wife and the child. Therefore, for the fitness of the thing, this Court is to confine itself only to the question whether such order has been validly and legally passed or not. So far as the amount of maintenance granted to the child is concerned, I am of the view that the said amount was granted in the year 2002 when she was a student of Nursery and at the present moment, she is a student of Class-VIII. Accordingly, it cannot be disputed that the cost of her education has become more than that of earlier. As such, in my opinion, she is very much entitled to enhancement of maintenance. Now, the question comes up for consideration whether the wife/petitioner is entitled to enhancement of maintenance. I have no other alternative but to hold it in affirmative. The order of maintenance was passed in the year 2002. Now, we are in 2010. As such, in my opinion, she is very much entitled to enhancement of maintenance. Now, the question comes up for consideration whether the wife/petitioner is entitled to enhancement of maintenance. I have no other alternative but to hold it in affirmative. The order of maintenance was passed in the year 2002. Now, we are in 2010. There is no controversy that within these few years, the prices have been escalated at a very high level and it is really impossible for a lady to eke out her existence with such a meagre amount. On the other hand, now the income of the opposite party/husband has been enhanced in many folds and at the present moment, he is drawing a gross salary of Rs. 23,750/- although he is claiming that his net salary is Rs. 10,596/-. However, to fix the quantum of maintenance the net salary after the statutory deduction is required to be taken into consideration. In my opinion, in this case justice will be sub-served if the maintenance for the child is enhanced from Rs.2,000/- to Rs. 2,500/- as well as the wife/petitioner from Rs. 1,250/- to Rs.2,500/-. Accordingly, this criminal revisional application succeeds and the same stands allowed with the increase of amount of maintenance as aforesaid. Criminal Section is directed to deliver urgent Photostat certified copy of this Judgement to the parties, if applied for, as early as possible.