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Allahabad High Court · body

2017 DIGILAW 2143 (ALL)

MALKA BIBI v. STATE OF U. P.

2017-09-12

ABHAI KUMAR

body2017
JUDGMENT Hon’ble Abhai Kumar, J.—Heard learned counsel for the revisionist, learned A.G.A. for the State and perused the material available on record. 2. The present criminal revision is directed against the order dated 1.10.2013 passed by Principal Judge, Family Court, Kanpur Nagar in case No. 70 of 2012 under Section 127 Cr.P.C., P.S. Babupurwa, Distt. Kanpur Nagar, whereby the maintenance allowance granted to the revisionist was enhanced from Rs. 350/- per month to Rs. 1100/- per month w.e.f. the date of order. 3. Brief facts of the case are as follows: 4. An application under Section 125 Cr.P.C. was initiated by the revisionist bearing No. 447 of 1992, which was decided on 17.7.1995 and maintenance of Rs. 250/- was directed to be given to the revisionist. On 12.9.1997, an application under Section 127 Cr.P.C. was moved for increasing the maintenance amount from Rs. 250/- to Rs. 500/- per month and same was partly allowed on 17.10.1998 and maintenance amount was increased from Rs. 250/- to Rs. 350/- per month. 5. On the basis of inflation and other requirements regarding medical treatment, a fresh application bearing No. 70 of 2012 was moved on behalf of revisionist for increasing the maintenance allowance from Rs. 350/- to Rs. 7000/- per month. The trial Court after hearing the parties came to the conclusion that after deduction, the opposite party No. 2 is getting Rs. 12089/- per month as salary. It has been observed by the trial Court that opposite party No. 2 has married his one daughter, whereas two unmarried daughter and two sons are still dependent upon him, who are getting the education, then there is second wife also whereas the revisionist is alone. Trial Court increased the monthly maintenance allowance from Rs. 350/- to Rs. 1100/- per month. Aggrieved by that, this revision has been preferred. 6. It is submitted by learned counsel for the revisionist that opposite party No. 2 is a driver in PWD Department, District Barabanki and earning more than Rs. 20,000/- per month as salary and in spite of fact that even after the trial Court returning the finding that opposite party No. 2 is getting Rs. 12089/- per month as salary only awarded Rs. 1100/- per month as maintenance to the revisionist. 20,000/- per month as salary and in spite of fact that even after the trial Court returning the finding that opposite party No. 2 is getting Rs. 12089/- per month as salary only awarded Rs. 1100/- per month as maintenance to the revisionist. It is further contended that Court must ensure that spouse also lives in a life of comfort and luxury to the same status as has been enjoining by the parties. 7. Whereas the learned counsel for the opposite party No. 2 submitted that after deduction, the opposite party No. 2 is only getting Rs. 12089/- per month from the pay. Rs. 3000/- is being deducted as GPF Advance that was taken for the marriage of his elder daughter. Rs. 2000/- is being deducted as House Advance, whereas regular payment of Rs. 2000/- to the GPF is also being deducted. It is further submitted that opposite party No. 2 is having two unmarried daughters and two sons, who are dependent upon him at present. They are getting education for that huge amount is required. In future the marriage of both the daughters is to be solemnized and for that money is also required. 8. Seeing the fact that loan from GPF Advance was taken by the opposite party No. 2 for getting her daughter married and in case any deduction is being made in this regard, which is quite reasonable and same cannot be taken into consideration for providing maintenance to the revisionist. Similarly regular deduction of Rs. 2000/- as GPF and deduction of Rs. 2000/- as House Advance can also not be computed for the purposes of payment of maintenance. 9. So, Rs. 12089/- is proper amount which can be basis for payment of maintenance to be given to the revisionist, which is being received by the opposite party No. 2 as salary after deduction. 10. On query made by the Court, the learned counsel of the opposite party No. 2 agreed that sum of Rs. 1500/- can be given by the opposite party No. 2 to the revisionist for her maintenance. 11. Admittedly, the revisionist is living alone, whereas the opposite party No. 2 is having two unmarried daughters and two sons and all are getting education. Moreover, a huge money is also required for the marriage of his daughters. In the circumstances, Rs. 1500/- can be given by the opposite party No. 2 to the revisionist for her maintenance. 11. Admittedly, the revisionist is living alone, whereas the opposite party No. 2 is having two unmarried daughters and two sons and all are getting education. Moreover, a huge money is also required for the marriage of his daughters. In the circumstances, Rs. 12089/- cannot be divided equally between family members of opposite party No. 2 and revisionist. 12. All the facts in this regard were properly considered by the trial Court and trial Court came to the conclusion that in view of economical condition of both the parties, maintenance can be increased to Rs. 1100/-. Although it can be said that trial Court did pay the monthly maintenance towards lower side. The proposal given by the learned counsel of the opposite party No. 2 for paying Rs. 1500/- per month as maintenance is quite befitting to the present case and this Court is also of the opinion that same amount is quite reasonable keeping in view the income of opposite party No. 2 and also seeing the fact that opposite party No. 2 is having two unmarried daughters and two sons as well as his second wife. 13. The income of a salaried person increases at least by 10% every year and accordingly maintenance granted to the wife should also increase by 10% every year and same benefit can also be provided to the revisionist. 14. In view of the above observations, the revision is partly allowed and the maintenance allowed by the trial Court is increased from Rs. 1100/- to Rs. 1500/- per month to the revisionist and same will be paid as per order of trial Court that is from the date of order of the trial Court. 15. Revisionist will also get 10% increased maintenance every year and period of year will be counted from the date, from which, maintenance is being fixed that is date of order of the trial Court.