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Jharkhand High Court · body

2016 DIGILAW 1463 (JHR)

Nagia Devi v. State of Jharkhand

2016-10-18

RONGON MUKHOPADHYAY

body2016
ORDER : Heard Mr. Sajid Yunus learned counsel appealing for the petitioner and Mr. Ratnesh Kumar, learned counsel appearing for opposite party No. 2. 2. This application is directed against the judgment dated 29.6.2015 passed by the learned Principal Judge, Family Court, Dhanbad in Criminal Miscellaneous Petition No. 35 of 2014 by which the application preferred by the petitioner under Section 127 of Cr PC for enhancement of the monthly allowance has been allowed and the opposite party No.2 has been directed to make payment of Rs. 2,500/ - per month to the petitioner. 3. It has been submitted by the learned counsel for the petitioner that earlier an application under Section 125 of Cr PC was preferred in which Rs. 1,500/- per month was awarded as the monthly maintenance, which has an ex parte order. Subsequently, however, the application preferred by the petitioner under Section 127 of Cr PC was allowed and only a meager amount of Rs. 2,500/- was ordered to be paid by the opposite party No. 2 to the petitioner. Learned counsel further submitted that the learned Court below has been properly appreciated the fact that the petitioner is getting a pension of Rs. 662/- per month and merely because the petitioners is getting pension that perhaps had weighed on the mind of the learned Court below before increasing the amount of maintenance from Rs. 1,500 to Rs. 2,500/-. Learned counsel further submitted that the opposite party No. 2 has got his job in place of the petitioner and presently he is drawing salary of Rs. 32,537/-. 4. Mr. Ratnesh Kumar, learned counsel for the opposite party No. 2, submitted that the opposite party No. 2 was drawing of Rs. 32,000/- as a salary when the amount of maintenance was increased to Rs. 2,500/- from Rs. 1,500/- per month. However, the enhancement was increased to about 50% of the earlier salary and in fact, the enhancement in maintenance is much more than the enhancement in the salary so made. It has also been submitted that opposite party No. 2 has to maintain four children as well as his wife on a paltry salary of Rs. 32,000/- and considering the salary of the petitioner, the learned Court below has rightly allowed the maintenance of Rs. 2,500/- per month. 5. It has also been submitted that opposite party No. 2 has to maintain four children as well as his wife on a paltry salary of Rs. 32,000/- and considering the salary of the petitioner, the learned Court below has rightly allowed the maintenance of Rs. 2,500/- per month. 5. It appears that perhaps the Court below was swayed by the fact that the petitioner and her husband is getting amount of pension although in the application preferred by the petitioner under Section 127 of Cr PC, nothing has been brought on record to suggest that the petitioner gets a pension of Rs. 662/- per month but from the earlier order passed under Section 125 of Cr PC, which forms part of the record, it appears that the petitioner at that point of time had been drawing pension of Rs. 500/- per month. This fact has completely been given a go-by, by the learned Court below while coming to the conclusion that it would be just and proper if the monthly, maintenance be enhanced to Rs. 2,500/- per month. Even otherwise, the opposite party No. 2 is getting a salary of Rs. 32,537/- and secured his employment in place of the petitioner. The amount of enhanced maintenance granted to the petitioner is not an enhancement in respect of the enhancement in salary as well as the surrounding circumstances as enumerated above. 6. Since the learned Court below has not properly appreciated what has been stated above, the application is allowed and the impugned order dated 29.6.2015 passed in Criminal Miscellaneous Petition No. 35 of 2014 is set aside only with respect to the quantum of maintenance so awarded and the matter is remanded back to the Court below to pass a fresh order in accordance with law after hearing the parties and, if necessary, by taking further evidence only with respect to the enhancement in the maintenance amount. 7. This revision application is disposed of with the aforesaid observation. Revision disposed of.