Smt. Anusuiya Bai vs Prem Prakash Bhuarya
2022 Latest Caselaw 6616 Chatt

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                                                            AFR

        HIGH COURT OF CHHATTISGARH, BILASPUR



                     CRR No. 415 of 2022



    Smt. Anusuiya Bai W/o Shri Prem Prakash Bhuarya, Aged
     About 46 Years, Resident Of Village Mudkhusra, Police
     Station Suregaon, Tahsil Daundilohara, District Balod
     Chhattisgarh.

                                                 ---- Petitioner

                           Versus

    Prem Prakash Bhuarya S/o Jagdish Bhuarya, Aged About 48
     Years Resident Of Village Mudkhusra, Police Station
     Suregaon, Tahsil Daundilohara, District Balod Chhattisgarh.

                                               ---- Respondent




For Petitioner              Mr. Vipin Tiwari, Advocate
For Respondent              Mr. Vidya Bhushan Soni, Advocate



       SB.: Hon'ble Mr. Justice Deepak Kumar Tiwari


                       Order On Board
                         7/11/2022


  1. Heard.


  2. The revision has been filed by the applicant-wife against

     the order dated 12.8.2021 passed by the Sessions Judge,

     Balod District Balod (CG) in Criminal Appeal No.17/2020
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   under Section 29 of the Protection of Women from

   Domestic Violence Act, 2005 (in short "the Act, 2005").


3. Facts

of the case, in brief, is that the applicant has filed an

application under Section 125 of Cr.P.C before the

Additional Principal Judge, Family Court, Balod (CG) in Misc.

Criminal Case No.51/2012. In the said Misc. Criminal Case,

vide order dated 5.2.2013, learned Additional Principal

Judge has granted monthly maintenance of Rs.5000/- to

the applicant and it was also directed that the said amount

shall be increased @ 10% per annum in the month of

January. Thereafter, the applicant has filed an application

under Section 12 of the Act, 2005 before the Judicial

Magistrate First Class, Balod vide Misc. Criminal Case

No.322/2014, whereby, the learned Judicial Magistrate

First Class, Balod , District Balod (CG) vide order dated

26.2.2020 partly allowed the petition and directed the

respondent-husband to pay monthly maintenance of

Rs.3000/- to the applicant. Being aggrieved with the said

order, the respondent-husband filed Criminal Appeal

No.17/2020, whereby, the Appellate Court has modified

the order dated 26.2.2020 passed by the Judicial

Magistrate First Class, Balod to the extent that the

monthly maintenance of Rs.3000/- granted to the applicant

be adjusted to the maintenance amount already awarded

to her earlier under Section 125 of Cr.P.C.

4. Learned counsel for the applicant would submit that the

respondent is working as Block Education Officer in the

Education Department and earning Rs.40,000/- per month.

The appellant-wife has preferred an application under

Section 125 of Cr.P.C. seeking maintenance of Rs.15,000/-.

However, vide order dated 15.2.2013, the Additional

Principal Judge, Family Court, Balod granted monthly

maintenance of Rs.5000/- and also directed that the said

amount be increased @ 10% per annum in the month of

January . Thereafter, on an application filed under

Section 12 of the Act, 2005 by the applicant, the Judicial

Magistrate First Class, after taking into consideration all

the facts pleaded by the applicant, granted her monthly

maintenance of Rs.3000/-. However, the Appellate Court

adversely considered such facts and passed the impugned

order and therefore, it deserves to be set-aside. Further,

considering the income of the respondent, he prays for

suitable enhancement of the maintenance amount.

5. Per contra, learned counsel for the respondent would

support the impugned order passed by the Appellate

Authority. He submits that the wife is residing in the same

building where the husband resides. The husband is

regularly paying the monthly maintenance to the wife. He

submits that the learned Judicial Magistrate First Class did

not pass any specific order with regard to the payment of

the maintenance amount in addition to the amount

already awarded earlier. As such, a specific order was

required to be passed in view of the judgment of the

Supreme Court rendered in the matter of Rajnesh Vs.

Neha and another, (2021) 2 SCC 324. He would further

submit that the out of the wedlock of the applicant and the

respondent, a daughter is born, who is residing with the

respondent, and at present pursuing her studies in college

and has attained the age of marriage. Hence, considering

the obligations of the respondent, no enhancement is

justified. He prays for dismissal of the revision.

6. Heard learned counsel for the parties and perused the

record.

7. In Rajnesh (supra), it has been settled that if in a previous

proceeding, an amount is awarded towards maintenance, in

the subsequent proceeding filed, the payment awarded in

the earlier proceeding must be taken note of and such

amount is adjustable in the maintenance amount awarded

under the different enactments. Learned Judicial

Magistrate First Class though vide order dated 26.2.2020

has mentioned in para 13 that a separate maintenance

amount has been granted to the applicant to the tune of

Rs.5000/- per month under Section 125 of Cr.P.C., but in

the operative part of the order vide para 15, it has not

been specified that the amount of Rs.3000/- awarded by

him is to be paid in addition to the amount already

awarded to the applicant in a previous proceeding under

Section 125 of Cr.P.C. before the learned Additional

Principal Judge, Balod. Further, the learned Additional

Principal Judge vide order dated 5.2.2013, not only

granted monthly maintenance of Rs. 5000/- per month to

the applicant but also granted increment @ 10% per

annum in the month of January, taking into account the

future increase in the cost of living.

8. Taking into account all such facts, learned Sessions Judge

vide the impugned order has modified the order of the

Judicial Magistrate First Class to the extent that the

monthly maintenance amount @ Rs.3000/- be adjusted to

the maintenance amount already awarded to the applicant

in a previous proceeding under 125 of Cr.P.C. Such order is

in no manner unjust or illegal, which warrants interference

of this Court by invoking its revisional jurisdiction.

9. For the foregoing, the revision is dismissed. However, if

there is any change in the circumstances, the applicant

would be at liberty to move an application under Section

127 of Cr.PC for alteration in maintenance allowance

before the competent authority.

10.Accordingly, the revision is dismissed.

Sd/-

( Deepak Kumar Tiwari) Judge

Shyna