Rakesh Kumar vs State Of U.P. And Another
2023 Latest Caselaw 7138 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved on 09.02.2023
 
Delivered on 4.03.2023
 
In chamber
 
Case :- CRIMINAL REVISION No. - 3043 of 2021
 
Revisionist :- Rakesh Kumar
 
Opposite Party :- State of U.P. and Another
 
Counsel for Revisionist :- Syed Mohammad Abbas Abdy,Ranjeet Kumar
 
Counsel for Opposite Party :- G.A.
 
&
 
Case :- CRIMINAL REVISION No. - 2680 of 2021
 
Revisionist :- Smt Lata Rani 
 
Opposite Party :- State of U.P. and Another
 
Counsel for Revisionist :- 
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Raj Beer Singh,J.

1. Both the above mentioned criminal revisions have been preferred against one and the same impugned order between the same parties and thus, both the revisions are being decided together by this common judgment.

2. Heard learned counsel for the parties and learned AGA for the State.

3. The Criminal Revision No.3043 of 2021 has been preferred by the revisionist / husband against the judgment and order dated 08.09.2021, passed by the learned Additional Principal Judge Family Court, Room No.3, Ghaziabad in Misc. Case No.129 of 2020 (Smt. Lata Rani Vs. Rakesh Kumar), under Section 127 Cr.P.C, whereby the maintenance granted to the opposite party No.2 earlier, has been enhanced from Rs.3,000/- per month to Rs.6,000/- per month. The criminal revision No.2680 of 2021 has been filed by the revisionist/wife against the same order for enhancement of maintenance amount granted by the Family Court.

4. Learned counsel for the revisionist / husband (opposite party in criminal revision No.2680 of 2021) has argued that the impugned order is against facts and law and thus, liable to be set aside. Earlier the opposite party No.2. has filed a case under Section 125 CrPC and by order dated 02.09.2003 revisionist was directed to pay maintenance @ Rs.3,000/- per month to the opposite party No.2 and Rs.1,000/- per month for minor daughter, but by the impugned order said amount of maintenance granted to the opposite party No.2/wife has been enhanced to Rs.6,000/- per month without any just reason. Learned counsel has referred the impugned order and material on record and submitted that the Family Court has rendered finding that the opposite party No.2 was running a beauty parlour and that she is capable to maintain herself but despite that finding, the Family Court has enhanced the maintenance. It was pointed out that after rendering the finding that the opposite party No.2/wife is capable of maintaining herself, the observation of the Family Court that she is not capable to maintain herself is contradictory and against the material on record. Further, all the education and living expenses of the daughter of the parties are being borne by the revisionist/ husband from the year 2007. The daughter of the parties is studying in Canada and the revisionist is bearing huge expenses for her education. In his affidavit of evidence, the revisionist / husband has clearly mentioned about the income and financial resources of the opposite party No.2 and that along with documentary evidence, one pen-drive was also produced before the Family Court, wherein, it was shown that the opposite party No.2/wife is running a beauty parlour and that the Family Court observed that the opposite party No.2 did not avail the opportunity of seeing the contents of the said pen-drive. This fact goes to show that she has sufficient income by beauty parlour. The decree of restitution passed on petition of opposite party No 2/Wife has already been set aside in appeal. The oral evidence as well as the documentary evidence of revisionist/husband has not been considered by the Family Court. Referring to facts and evidence of the matter, it was submitted that there is clear evidence that the opposite party No.2/ wife is running a beauty parlour and she is having sufficient income and capable of maintaining herself but despite all these facts and evidence, the Family Court has enhanced the maintenance from Rs. 3,000/- per month to Rs.6,000/- per month and thus, the impugned order is against facts and law and thus, liable to be set aside. It was stated that the revisionist/husband is continuously paying maintenance of Rs.3,000/- per month to the opposite party No.2/wife. It was also stated that revisionist/husband is continuously being harassed by the opposite party No.2/wife and she has lodged as many as 30 cases against revisionist/husband and made several complaints to various authorities against revisionist.

5. Learned counsel for the opposite party No.2 /wife (revisionist in criminal No.2680 of 2021) has argued that the opposite party No.2 /wife has no source of income to maintain herself. It was submitted that the opposite party No.2 / wife is legally wedded wife of the revisionist/husband, who is working in Electricity Department and he is getting salary of Rs.95,000/- per month. It was submitted that earlier opposite party No.2 / wife has filed a case under Section 9 Hindu Marriage Act for restitution of conjugal rights, which was decreed and the said decree was set aside by the Appellate Court, but the appeal against that order is pending before this Court. The revisionist / husband has also filed a case under Section 13 Hindu Marriage Act for decree of divorce, which has already been dismissed. Learned counsel submitted that as the opposite party No.2 / wife has sufficient reasons to stay separately and that her maintenance was neglected, thus, she is entitled for maintenance. The opposite party No.2/wife was granted maintenance @ Rs.3,000/- per month way back in the year 2003, which has been enhanced by the impugned order from Rs.3,000/- per month to Rs.6,000/- per month and that revisionist / husband is getting salary of Rs.95,000/- per month and thus, the enhanced amount is quite less and meagre.

6. I have considered rival submissions and perused record.

7. Before proceeding further it would be apt to peruse provisions of Section 127 Cr.P.C., which read as under:

"127. Alteration in allowance- [(1) On proof of a change in the circumstances of any person, receiving, under section 125 a monthly allowance for the maintenance or interim maintenance, or ordered under the same section to pay a monthly allowance for the maintenance, or interim maintenance, to his wife, child, father or mother, as the case may be, the Magistrate may make such alteration, as he thinks fit, in the allowance for the maintenance or the interim maintenance, as the case may be.]

(2) Where it appears to the Magistrate that, in consequence of any decision of a competent civil court, any order made under section 125 should be cancelled or varied, he shall cancel the order or, as the case may be, vary the same accordingly.

(3) Where any order has been made under section 125 in favour of a woman who has been divorced by, or has obtained a divorce from, her husband, the Magistrate shall, if he is satisfied that-

(a) the woman has, after the date of such divorce, remarried; cancel such order as from the date of her remarriage;

(b) the woman has been divorced by her husband and that she has received, whether before or after the date of the said order, the whole of the sum which, under any customary or personal law applicable to the parties, was payable on such divorce, cancel such order-

(i) In the case where such sum was paid before such order, from the date on which such order was made,

(ii) In any other case, from the date of expiry of the period, if any, for which maintenance has been actually paid by the husband to the woman;

(c) the woman has obtained a divorce from her husband and that she had voluntarily surrendered her rights to [maintenance or interim maintenance, as the case may be] after her divorce, cancel the order from the date thereof.

(4) At the time of making any decree for the recovery of any maintenance or dowry by any person, to whom [ monthly allowance for the maintenance and interim maintenance or any of them has been ordered] to be paid under section 125, the Civil Court shall take into account that sum which has been paid to, or recovered by, such person [as monthly allowance for the maintenance and interim maintenance or any of them, as the case may be, in pursuance of] the said order".

8. Thus, it may be seen that above referred provision provides for enhancement and alteration of maintenance amount but this can only be done when there is proof of change in the circumstances of any person receiving the allowance as the case may be. In Sanjeev Kapoor v. Chandana Kapoor and Ors., (2020) 13 SCC 172, the Supreme Court had observed that the legislature was aware that there were situations where altering or reviewing of criminal court judgement were contemplated in the Code itself or any other law for the time being in force. Noting that Section 125 Cr.P.C. was a social justice legislation, the Supreme Court held that a closer look at Section 125 Cr.P.C. itself indicated that the Court after passing judgment or final order in the proceedings under Section 125 Cr.P.C. did not become functus officio, and that the Section itself contains express provisions wherein an Order passed under Section 125 Cr.P.C. could be cancelled or altered, and that this was noticeable from Sections 125(1), 125(5) and 127 Cr.P.C. Therefore, the legislative scheme as delineated by Sections 125 and 127 Cr.P.C. clearly enumerates circumstances and incidents provided in the Code where the Court passing a judgement or final order disposing of the case can alter or review the same. The embargo as contained in Section 362 is, thus, relaxed in proceedings under Section 125 Cr.P.C. Thus, a plain import of sub-section (1) of Section 127 Cr.P.C is that a provision is made therein for an increase or decrease of the allowance consequent on a change in the circumstances of the parties at the time of the application for alteration of the original order of maintenance. It must be shown that there has been a change in the circumstances of husband or of the wife.

9. In the case of Bhagwan Dutt vs Kamala Devi, (1975) 2 SCC 386, the Hon'ble Supreme Court has held that word "circumstance" as appearing in Section 127 Cr.P.C has been interpreted by the Apex Court by observing that circumstances as contemplated in Section 127 (1) Cr.P.C must include financial circumstances and in that view, the inquiry as to the change of circumstances must extend to a change of financial circumstances. Regarding determination of quantum of maintenance, the Hon'ble Supreme Court in Jabsir Kaur Sehgal v. District Judge Dehradun & Ors., (1997) 7 SCC 7 has held as follow:-

"8. ... The court has to consider the status of the parties, their respective needs, the capacity of the husband to pay having regard to his reasonable expenses for his own maintenance and of those he is obliged under the law and statutory but involuntary payments or deductions. The amount of maintenance fixed for the wife should be such as she can live in reasonable comfort considering her status and the mode of life she was used to when she lived with her husband and also that she does not feel handicapped in the prosecution of her case. At the same time, the amount so fixed cannot be excessive or extortionate..."

10. In the present case it is not disputed that the opposite party No. 2 / wife is legally wedded wife of the revisionist / husband and that out of that marriage, they have one daughter. Both the parties have a chequered history of litigation. The opposite party No.2/ wife has filed a case under section 125 Cr.P.C. claiming maintenance, wherein by order dated 02.09.2003 dated she was granted maintenance @ Rs.3,000/- per month. In the year 2016, she has filed an application under section 127 CrPC for enhancement of said amount of maintenance, which was partly allowed by the Family Court vide impugned order dated 08.09.2021 and amount of maintenance was enhanced from Rs,3,000/- pm to Rs.6,000/- pm. The grievance of revisionist / husband is that the said enhancement is on higher side, whereas, the case of the opposite party No.2/wife is that said enhanced amount is quite meagre and unreasonable. Since the year 2003, when she was granted maintenance @ Rs.3,000/- pm, the prices of essential commodities have considerably gone up. The salary of the revisionist/husband has also increased many fold since then. It is not disputed that the revisionist/husband is working in Electricity department and the court below has observed that in the year 2000 his salary was Rs.95000/- per month after deductions he is getting an amount of 45128/ per month. It is also clear from evidence the opposite party No. 2/wife is running a beauty parlour, however there is nothing to show that how much amount she is earning. No such evidence could be shown that by running said beauty parlour she is capable of maintaining herself. Merely because she is having some income from alleged beauty parlour, it would not divest her from claiming maintenance from her husband, who is gainfully employed in Electricity department and his gross salary is about Rs.95,000/- pm. However, this fact could not be disputed that the revisionist / husband is bearing all living and education expenses of the daughter of the parties, who is studying in Canada. It is well settled that the amount of maintenance has to just and reasonable and must commensurate to the financial status of the husband. As observed earlier, the amount of maintenance fixed for the wife should be such as she can live in reasonable comfort considering her status and the mode of life she was used to when she lived with her husband and also that she does not feel handicapped in the prosecution of her case. At the same time, the amount so fixed cannot be excessive or extortionate. In the instant matter considering the income of the revisionist / husband, the fact that he is bearing all expenses of the daughter of parties and that the opposite party No. 2 / wife is also generating some income from beauty parlour and all other relevant facts and circumstance of the case, it appears that the amount of maintenance enhanced by the Family is on lower side. Considering above stated facts, it appears just and proper that the maintenance awarded to the opposite party No. 2 / wife be enhanced to Rs. 8,000/- per month.

11. In view of aforesaid, the amount of maintenance granted vide order dated 02.09.2003 is enhanced from Rs.3,000/- per month to Rs.8,000/- per month. Thus, it is directed that the revisionist/husband shall pay maintenance @ Rs.8,000/- per month to the opposite party/wife from date of impugned order i.e. 08.09.2021. The impugned order is altered to this extent.

12. The criminal revision No.2680 of 2021 is disposed of in above terms.

13. The criminal revision No.3043 of 2021 is dismissed.

Order Date :- 04.03.2023

Neeraj