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2015 DIGILAW 334 (CAL)

Debaki Sarkar (Biswas) v. Subhas Biswas

2015-04-10

SHIB SADHAN SADHU

body2015
Judgment :- Shib Sadhan Sadhu, J. 1. By preferring the present application under Section 401 read with Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as Cr.P.C. for brevity). The petitioner has prayed that the order dated 20.08.2014 passed by the Learned Judicial Magistrate, 2nd Court, Barasat, North 24-Parganas in Miscellaneous Case No.445 of 2004 be set aside and the O.P. No.1 be directed to pay her maintenance at an enhanced rate of Rs.25,000/- per month with effect from 29th July, 2004 i.e. from the date of filing of the said application for enhancement. 2. The factual background giving rise to the instant application is that the present petitioner filed an application under Section 125 of the Cr.P.C. on 07.08.1998 which was registered as Misc. Case No. 427 of 1998. That case was finally disposed of on 19th March, 2004 directing the present O.P.No.1 to pay maintenance at the rate of Rs.1,500/- per month to the petitioner. Being aggrieved by such order, she filed an application under Section 127 of the Cr.P.C. for enhancement of maintenance which was heard and disposed of by the impugned order dated 20.08.2014 and by such order the maintenance has been enhanced from Rs.1,500/- to Rs.8,500/- per month. However, it was directed that such enhanced maintenance would be payable from the date of the order i.e. from 20.08.2014. Being dissatisfied with such order she has come up before this Court with the present application. 3. The petitioner who appeared in person submitted that the Learned Magistrate did not record any reason for passing the impugned order specially for giving effect to the order from the date of order itself and why not from the date of filing of the application for enhancement. She further submitted that the enhanced amount is also not commensurate with the income of the husband/O.P. No.1 who draws salary of Rs.57,245/- per month. According to her the Learned Magistrate did not consider her prayer for enhancement to the extent of Rs.25,000/- per month and he did not also fix the enhanced quantum after taking evidence and taking in to consideration the facts and circumstances of the case. According to her the Learned Magistrate did not consider her prayer for enhancement to the extent of Rs.25,000/- per month and he did not also fix the enhanced quantum after taking evidence and taking in to consideration the facts and circumstances of the case. Therefore, she concludingly submitted that the impugned order is bad in law and is liable to be set aside and the O.P. No.1 should be directed to pay her maintenance @ Rs.25,000/- per month with effect from 29.07.2004 i.e. from the date of filing of the application for enhancement under Section 127 Cr.P.C. 4. Mr. Ganesh Srivastava, Learned Counsel, appearing for the O.P. No.1/husband on the other hand submitted that as per provision of Section 127 of the Cr.P.C. the Court has no jurisdiction to allow enhanced maintenance from the date of application and therefore, the Learned Magistrate has correctly passed the order giving effect from the date of passing the order. He further submitted that the O.P. No.1/husband has his son and daughter who are dependent upon him. His gross salary is Rs.59,469.83 paise but his take home pay is Rs.36,851/- after deduction. His daughter is studying B.Tech (Electrical Engineering) Degree Course in Kolkata, after taking educational loan and for that the O.P. No.1 is to spend a considerable amount every month for his daughter. Also he is to spend a lot for his son who is undergoing a course in National Institute of Design at Amedabad. Therefore, there is no scope for further enhancement because the enhanced amount of Rs.8,500/- per month is causing acute financial hardship to the O.P. No.1. He submitted further that the Learned Magistrate passed the order after taking evidence and taking into consideration all the relevant factors. Therefore, according to him, the impugned order is just and proper and it should not be interfered with and the present application be dismissed. 5. On hearing both sides and on perusal of the entire materials available on record including the photo copies of the documents submitted on behalf of O.P. No.1 and on giving a close and critical look into the impugned order dated 20.08.2014, I would like to say at the very outset that it is a matter of discretion of the Court whether to allow enhanced maintenance from the date of the application or from the date of the order. I find from the impugned order that the Learned Magistrate raised presumption that both the children of the O.P. No.1 have now attained majority. Nothing has been submitted on behalf of the O.P. No.1 to rebut such presumption. I further find that the photo copy of the Demand Draft dated 13.06.2014 proves nothing. That is to say that, it does not show who sent it in whose favour. It has been specifically laid down in Section 125 of the Cr.P.C. that the children who have attained majority are not entitled to claim maintenance from their father unless such children are by reason of any physical or mental abnormality or injury unable to maintain themselves. Therefore, in absence of any proof of such special circumstances the O.P. No.1 has no legal obligation to maintain his son and daughter. On the contrary it is his bounden duty to maintain his wife. However, since his daughter is unmarried, she can be treated as a dependant upon her father within the meaning of Section 20 of the Hindu Adoption and Maintenance Act and is, therefore, entitled to maintenance from her father. 6. Looking into the pay slip for the month of February, 2015 of the O.P. No.1 it appears that his total salary in that month was Rs.59,469.83 paise and his total deduction was Rs.22,619/-. Out of those deductions only the deductions towards PF contribution, Professional Tax and Income Tax can only be taken into account in computing his take home pay which comes to Rs.51,917/- (Rs.59,469 – Rs.7,552 (2653+200+4699). It appears that the O.P. No.1/husband has incurred liability to pay installments by obtaining various loans etc., but that is no reason why the wife should be denied maintenance which is just sufficient for keeping her body and soul together. 7. It appears that the O.P. No.1/husband has incurred liability to pay installments by obtaining various loans etc., but that is no reason why the wife should be denied maintenance which is just sufficient for keeping her body and soul together. 7. Therefore, considering the pros and cons of the matter, keeping in view the change in circumstances specially the consistent rise in market price of essential commodities, the status and standard of living of the parties, striking a balance between the need and demand of the wife and capacity of the husband to pay and bearing in mind the golden principle of awarding maintenance that it should be bestowed as a measure of relief and not merely as a token, I think it just and proper to enhance the maintenance from Rs.8,500/- to Rs.12,000/- per month with effect from the date of passing of the impugned order that is from 20.08.2014. 8. Accordingly the O.P. No.1 is directed to pay maintenance to the petitioner at an enhanced rate of Rs.12,000/- per month to the petitioner with effect from 20.08.2014. He is further directed to pay the current maintenance within 10th day of each succeeding month and to pay the arrear maintenance at such enhanced rate from 20.08.2014 to 10.04.2015 amounting to Rs.26,833/- in three installments of Rs.8,900/-, Rs.8,900/- and Rs.9033/-starting from the month of May, 2015, failing which the petitioner shall be at liberty to realise the maintenance amount through Execution Proceeding. 9. In the result the impugned order is set aside and the application is allowed. No order as to costs. 10. Criminal Section is directed to deliver urgent photostat certified copy of this judgment to the parties, if applied for, as early as possible.