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2011 DIGILAW 1399 (RAJ)

Chandra Kala @ Durga Menariya v. Narmada Shanker

2011-07-15

R.S.CHAUHAN

body2011
JUDGMENT 1. - Hoping for enhancement of the maintenance amount, the petitioner has filed the present petition against the order dated 29.8.2008, passed by the Family Court, Udaipur; the learned Judge has directed the respondent husband to pay a maintenance of merely Rs. 2,000 per month to the petitioner from the date of the order. 2. Vide order dated 7.7.2011, this Court had clearly noted that on 5.7.2011, Mr. Sabir Khan had sought adjournment on behalf of Deepak Menaria, the learned counsel for the respondent. However, even on 7.7.2011, Mr. Menaria did not appear before this Court. Therefore, in the interest of justice, this case was adjourned till today. But it was made amply clear that in case Mr. Deepak Menaria does not appear on the next date, this Court shall have no other option out to proceed ex paste against the respondent. Despite clear observation by this Court, even today, Mr. Menaria has not appeared before the Court. Hence, this Court has no other option but to proceed ex parte against the respondent. 3. Brief facts of the case are that the petitioner wife and respondent husband were married on 20.5.1989 according to Hindu customs and rites. However, subsequently, the petitioner was subjected to mental and physical cruelty on the ground that the petitioner should have brought Rs. 20,000 from her parents. Because of the differences, that arose between the parties, the petitioner had no option but to leave the matrimonial home. However, she was unable to maintain herself. Therefore, she filed an application under Section 125 Cr.P.C., for seeking maintenance from her husband. During the course of trial, the petitioner pleaded that the respondent husband was employed as a teacher in Government School, Badgaon and was earning about Rs. 8,000/- per month. Moreover, he had 16 bighas of land from which he was earning agriculture income. According to the petitioner, he was earning approximately Rs. 15,000 per month. However despite the oral evidence, still the learned Court granted a mere maintenance of Rs. 2,000/- per month and that too from the date of the order. Hence, this petition before this Court. 4. Mr. Dilip Kawadia, the learned counsel for the petitioner, has --vehemently contended that not only the petitioner but even the witness produced by the respondent-husband, viz., Mohanlal (NAW-2), had clearly stated that "the respondent owns certain piece of land from which he has agriculture income". Hence, this petition before this Court. 4. Mr. Dilip Kawadia, the learned counsel for the petitioner, has --vehemently contended that not only the petitioner but even the witness produced by the respondent-husband, viz., Mohanlal (NAW-2), had clearly stated that "the respondent owns certain piece of land from which he has agriculture income". However, this part of the testimony has been overlooked by the learned Judge. According to him, even the respondent has admitted that he was earning Rs. 8,000/- as a Teacher. Thus, according to the learned counsel, even if Rs. 2,000/- is taken as the agriculture income, obviously, the respondent was earning about Rs. 10,000/- per month. Hence, interim maintenance of Rs. 2,000/- should be increased to Rs. 4,000/-. He has further contended that no reason has been given by the learned Judge for making the maintenance payable from the date of the order. Considering the fact that the application was filed in the year 2005 and was decided in the year 2008, the petitioner deserves to be paid the maintenance from the date of the filing of the application. After all, it was not her fault that the judicial proceedings culminated only after a lapse of three years. 5. Heard the learned counsel and perused the impugned judgment. 6. A bare perusal of the testimony of Mohanlal (NAW-2) clearly reveals that in his cross-examination he has admitted the fact that the respondent not only owns agriculture land, but he also derives agricultural income therefrom. While the learned Judge noted the fact that Mohanlal had testified to the fact that the respondent was working as a Teacher, the above mentioned part of the testimony has been totally ignored. Considering the fact that according to Mohanlal, respondent owned and derived income from agriculture land, the learned Judge should have taken at least Rs. 2,000/- per month as the agricultural-income of respondent. Hence, the respondent was earning Rs. 10,000/- per month. Thus, obviously, a maintenance of Rs. 2,000/- is too little. 7. Moreover, considering the fact that the 6th Pay Commission has come into force, obviously respondent's income must have increased manifold. Considering the inflation, considering the fact that the prices of even essential commodities have sky rocketed, considering the fact that the respondent has both income from his job as Teacher as well as agriculture, this Court is of the opinion that the maintenance should be increased from Rs. Considering the inflation, considering the fact that the prices of even essential commodities have sky rocketed, considering the fact that the respondent has both income from his job as Teacher as well as agriculture, this Court is of the opinion that the maintenance should be increased from Rs. 2,000/- to Rs. 4,000/- per month. 8. The Family Court should be sensitive to the financial difficulties of wife to maintain herself who lives in an animated suspension. Admittedly, the petitioner had submitted her application in the year 2005. According to the learned counsel, she was not granted any interim maintenance from 2005 to 2008 It must have been difficult for her to maintain herself during the interim period Therefore, the maintenance ought to have been granted not from the date of the order, but from the date of the filing of the application. After all, it is both the moral and legal duty of the husband to maintain the wife. Therefore, this Cour directs that the maintenance of Rs. 4,000/- shall be paid to the petitioner from the date of the filing of the application. However, the amount already paid by the respondent as maintenance, in the form of Rs. 2,000/- per month, shall bE deducted from the total amount of arrears of maintenance.With these directions, the petition is, hereby, allowed.Petition allowed. *******