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Gauhati High Court · body

2018 DIGILAW 768 (GAU)

Khageswar Baishya v. Manomati Baishya

2018-05-09

AJIT BORTHAKUR

body2018
JUDGMENT : 1. By this criminal revision petition under section 401, Cr.PC the petitioner has challenged the legality and correctness of the judgment and order, dated 29.4.2017, passed in Misc. Case No. 41(M)/2016 under section 127, Cr.PC, by the learned Sub-Divisional Judicial Magistrate (Sadar), Nalbari, whereby the monthly maintenance allowance of total Rs. 2,800 paid to his wife/respondent and two daughters is enhanced to Rs. 3,000/- for the respondent and Rs. 2,500/- each of their two minor daughter (total Rs. 8,000), per month. 2. The petitioner's case, precisely, is that the respondent/his wife has been living separately along with their two daughters for several years. The respondent filed a petition under section 125, Cr.PC, claiming maintenance for herself and her two daughters, who are living with her. As per order of the court of learned S.D.J.M (S), Nalbari, since the year 2012, the petitioner has been paying maintenance @ Rs. 1,000 towards the respondent and @ Rs. 1,000 and Rs. 800 towards the two daughters respectively. However, on an application filed under section 127, Cr.PC, by the respondent, the learned court below by the impugned order, dated 29.4.2017, passed in Misc. Case No. 41(M)/2016, enhanced the maintenance amounts as stated above, on the ground of change in circumstances from the date of the application. 3. Mr. S. Chamaria, learned counsel for the petitioner submits that the impugned order is not sustainable in law and fact. Mr. Chamaria submits that the aforesaid enhanced amount of maintenance allowance is disproportionate to increase in his salary since the last enhancement was made in the year 2012 and there is no any such major change in circumstances as claimed by the respondent, which required enhancement in the maintenance allowance. Mr. Chamaria, however, submits that the petitioner has no objection in continuing payment of the maintenance allowances at the old rate or at any new rate, which this court may deem fit and appropriate. 4. Per contra, Mr. P. Das, learned counsel for the respondent submits that in view of the reasons, recorded in detail in the impugned order, no interference is called for by this court. 5. In the impugned judgment and order, the learned court below advanced adequate reasons for enhancement of the maintenance allowance in para 5, 6 and 7, which are extracted herein below— “5. 5. In the impugned judgment and order, the learned court below advanced adequate reasons for enhancement of the maintenance allowance in para 5, 6 and 7, which are extracted herein below— “5. The first party as PW1 stated that she and her elder daughter are getting monthly maintenance allowance of Rs. 1000 each and the younger daughter is getting Rs. 800 from the second party. That, now her daughters are candidates of H.S. 1st year and H.S.L.C., respectively. That, now she is facing trouble to maintain herself with the meagre amount of maintenance because of rise in price of essential commodities. According to her the income of the second party has increased manifold in comparision to that in the year 2011 and moreover the second party has a car from which he earns money by letting it on hire and he also has a grocery shop. The first party stated in her evidence that her husband earns Rs. 50,000, per month, from various sources. 6. The second party stated as DW1 that at present he gets Rs. 19,279 as salary. He exhibited his salary slip as Ext. A. He claimed that he bought the car on loan from HDFC Bank and has to pay Rs. 2,000 per month as instalments towards the car loan but the second party could not substantiate his plea by producing any document in support the plea. The second party also stated that his elder brother is a Government servant but he has to provide for the education of the sons of his elder brother. It has unfolded during evidence that the parents of the second party has already expired and he has entered into second marriage from which he has two sons. The second party produced a medical certificate (Ext. B) and a medical prescription (Ext. C) from which it appears that the second party is undergoing treatment for epilepsy. 7. From the evidence on record it is seen that the first party and her daughters are receiving Rs. 2,800 from the second party as monthly maintenance allowance from the year 2004. Since the passing of the order of maintenance in the year 2004 there has been a considerable rise in price of essential commodities and cost of living has increased considerably. The daughters of the first party are students of Higher Secondary and one is a candidate of HSLC Examination. Since the passing of the order of maintenance in the year 2004 there has been a considerable rise in price of essential commodities and cost of living has increased considerably. The daughters of the first party are students of Higher Secondary and one is a candidate of HSLC Examination. It is needless to point out that a considerable amount of money is required for the food, clothing and education of the two daughters. The second party has admitted in his cross-examination that from April, 2017 he will get salary according to Revised pay. Hence, considering all aspects, it is held that the first party and her daughters are entitled to enhanced maintenance. Considering the expenses required for the food, clothing and education of the two daughters and the bare necessities of the first party in the present scenario of inflated economy the maintenance allowance of the first party is enhanced from Rs. 1,000 to Rs. 3,000 per month and the maintenance allowance of the two daughters, namely, Chandana Baishya and Bandana Baishya are enhanced to Rs. 255 each. This point is decided accordingly.” 6. From the reading of section 127, Cr.PC, it appears that on proof of a change in circumstances of a person receiving monthly maintenance allowance under section 125, Cr.PC, may seek such alteration before the Magistrate as he thinks fit in respect of the maintenance awarded, subject, of course, to cancellation of order of maintenance under any of the circumstances mentioned in sub-sections (2) and (3) of section 127, Cr.PC. Change in circumstances envisaged in section 127(1), Cr.PC, contemplates not only change in relation to wife, but also husband. So when the husband begins to earn more, the wife can invoke section 127, Cr.PC, to enhance the maintenance allowance, so also when the wife begins to earn, the husband may apply for cancelling or varying the maintenance. In other words, ‘change of circumstances’ covers change in primary circumstances as well as changes in other circumstances, which may be in the circumstances of the paying party or of the receiving party. 7. Perusal of the impugned order, it appears that the learned Magistrate while enhancing the maintenance allowances has appreciated the evidence of both the sides from proper perspective as stated above. However, the learned Magistrate has omitted to assign any reason for enhancing the maintenance allowances from the date of application, that is, 14.7.2016. 7. Perusal of the impugned order, it appears that the learned Magistrate while enhancing the maintenance allowances has appreciated the evidence of both the sides from proper perspective as stated above. However, the learned Magistrate has omitted to assign any reason for enhancing the maintenance allowances from the date of application, that is, 14.7.2016. Whether enhancement shall be ordered from the date of application or from the date of application is a matter of discretion of the learned Magistrate. In the backdrop of facts in hand, this court is of the considered opinion that the learned court below ought to have made the impugned order effective from the date of the order, that is, 29.4.2017, instead of the date of application. 8. Consequently, the revision petition stands partly allowed. The alteration in the rate of maintenance by way of enhancement of maintenance allowance directed to be paid by the petitioner to the respondent and her two daughters vide the impugned order is affirmed and the said altered/modified amount shall be payable with effect from 1.5.2017. 9. The accumulated arrear amount minus the amount already paid to the respondent since 1.5.2017 shall be paid in equal amount of instalments, per month, within three months from 1.6.2018, failing which the learned Magistrate shall initiate necessary steps, in accordance with law, for recovery of the unpaid arrear amount. 10. Accordingly, the petition stands disposed of.