Shri Jai Prakash vs Smt. Ram Roshni
2011 Latest Caselaw 2688 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

+                     Crl.Rev. P.No. 87/2010

                                                Reserved on : 28.04.2011
                                            Date of Decision : 19.05.2011

SHRI JAI PRAKASH                                             ...... Petitioner
                                    Through:          Mr. S. S. Dahiya, Adv.

                                     Versus

SMT. RAM ROSHNI                                        ...... Respondent
                                    Through:          Mr. M. K. Vaid, Adv.


CORAM :
HON'BLE MR. JUSTICE V.K. SHALI

1.     Whether Reporters of local papers may be
       allowed to see the judgment?                                  YES
2.     To be referred to the Reporter or not ?                       NO
3.     Whether the judgment should be reported
       in the Digest ?                                               NO

V.K. SHALI, J.

1. This is a criminal revision petition filed by the petitioner

against the order dated 30.11.2009 passed by the learned

Principal Judge, Family Court, Dwarka, in M. No.

171/2009 under Section 127 Cr.P.C. in case titled Smt.

Ram Roshni Vs. Shri Jai Prakash wherein the

maintenance of Rs.500/- was enhanced to Rs.2,000/- per

month from the date of filing of the petition i.e.

15.05.2003 and Rs.2,500/- from the date of order i.e.

30.11.2009 till the time she is legally entitled.

2. Briefly stated that facts of the case are that the respondent

was awarded a maintenance of Rs.500/- by the learned

Metropolitan Magistrate, Delhi vide order dt. 4.5.1995 in

pursuance to the proceedings initiated by her under

Section 125 Cr.P.C. It may be pertinent here to mention

that after the amendment in Cr.P.C. w.e.f. 24.09.2001, the

Court is empowered to fix the maintenance as per the

earning capacity of the respondent. The respondent filed a

petition under Section 127 Cr.P.C. in the Court of Ms.

Deepa Sharma, the learned Principal Judge, Family Court,

Dwarka, New Delhi on 15.05.2003 that is after a lapse of

eight years from the date of grant of maintenance. She

prayed that the amount of maintenance be increased from

Rs.500/- per month to Rs.5,000/- per month as there has

been a change in the income of the petitioner apart from

the fact that he owns a kothi in his name. It was alleged

that the petitioner was earning a rental income also. The

petitioner contested the claim of the respondent for

enhancement and stated that he himself is dependent on

his parents for his own existence. It has been stated by

the petitioner that he is a poor man and unemployed. As

a matter of fact, he is living on the charity of his brother.

It was also stated by him that he is having only 5 Kanal 8

Marlas of agricultural land which is barren and

unirrigated. The factum of maintaining a dairy and

consequently the income on account of dairy was also

denied by him. The petitioner had stated that he is only

earning about Rs.4,500/- per month excluding the

expenses from his land. The learned Principal Judge after

permitting the parties to adduce the evidence with regard

to the enhancement of maintenance heard the arguments

and passed the impugned order by virtue of which the

maintenance of Rs.500/- was increased to Rs.2,000/- per

month with effect from 15.05.2003 and Rs.2,500/- per

month from the date of order till the time she is legally

entitled to the same.

3. The reasoning which has been given by the learned

Principal Judge for enhancement was that, there is an

increase in the cost of living considerably from 1995 till

dated, and consequently, the increase is justified.

4. I have heard the learned counsel for the parties and have

also gone through the record.

5. The main contention of the learned counsel for the

petitioner is that the order of enhancement which has been

passed by the learned Principal Judge is without any

evidence & is based on the reasoning which is totally

erroneous. It has been contended that the learned

Principal Judge erroneously observed that since 1995 there

has been an increase in the pay scale of the government

employees (on account of pay commission in the year 1996

and 2006) but that cannot form the basis of enhancement

of maintenance of the respondent.

6. It was further contended that there has been absolutely no

change in the circumstances of the present petitioner

further no cogent evidence has been brought on record by

the respondent to show that the petitioner is earning any

rental income or from diary or from agriculture, except that

she has made a bald statement that petitioner is earning

Rs.15,000/- to Rs.20,000/- per month. It has been stated

that the observation passed by the learned Principal Judge

that the present petitioner is an able bodied person, is

equally applicable to the respondent herein. The learned

counsel has also placed reliance on the judgment of this

Court in case titled Ritu Raj Kant Vs. Anita 154 (2008)

DLT 505, wherein the order of the learned Additional

District Judge was set aside on the ground that no material

was brought on record by the respondent and it was

observed that the learned Court below has simply observed

that the husband was an able bodied person. It was

observed since the wife is equally able bodied, this would

not be a ground for grant of maintenance. The learned

counsel has also relied upon a judgment in case titled N

Sampath Vs. Rajkumari AIR 2010 (NOC) 339 (MAD.)

7. The learned counsel for the respondent contested the claim

of the petitioner and urged that there is no illegality,

impropriety or incorrectness in enhancing the maintenance

from Rs.500/- to Rs.2,000/- and to Rs.2,500/- on

account of the fact that the cost of living has considerably

increased, and therefore, even this bare minimum amount

for existence of the respondent is only a hand to mouth.

8. I have carefully considered the respective submissions and

have gone through the impugned order.

9. I do not find that there is any irregularity or incorrectness

or illegality or impropriety in the order of enhancement

passed by the learned Principal Judge. Though, it must

be observed that the reference of the

Fifth and the Sixth Pay Commissions by the learned

Principal Judge was only for the purpose to support her

point that from 1995 to 2009 i.e. almost after 14 years,

there has been a considerable increase in the prices of

essential commodities. It is in this background that the

learned Principal Judge has referred to the factum that

even the minimum wages of the skilled or unskilled

workers both by the Central Government and the State

Government has been considerably increased, therefore,

this Court or for that matter the Court of learned Principal

Judge cannot be oblivious to the realities of the life. An

amount of Rs.500/- per month which was sufficient for the

bare minimum existence in the year 1995 would be grossly

inadequate even to have one square meal a day in the

present day conditions.

10. The contention of the learned counsel for the petitioner

that the respondent has not produced any cogent evidence

with regard to the income of the present petitioner, does

not in my opinion cut any ice. If one looks at sub Section

(1) of Section 127 Cr.P.C. it lays down a contingency for

alteration in the maintenance allowance as a result of

change in circumstances. It may be pertinent here to

reproduce 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.]"

11. It appears from the language of the aforesaid sub-Section

that change in circumstances envisaged by it, is a change

in pecuniary or other circumstances of a party paying or

receiving allowance which would justify an increase or

decrease of the amount of maintenance originally fixed.

The language of the section does not show that the section

contemplates a change in the status of the parties. The

word 'alteration in the allowance" clearly indicates that

reference is to change in circumstances which would

necessitate an alteration in the amount of allowance. In

the instant case notwithstanding the fact that the

respondent has not been able to produce any documentary

evidence with regard to the income of the petitioner, the

fact of the matter is that the petitioner himself admitted

that he has 5 Kanal 8 Marlas land which is substantially a

large chunk of land. The mere plea that the aforesaid land

is unirregated or barren in my view is only a ploy to get

away from the liability to discharge his responsibility of

paying maintenance, therefore, irrespective of the fact as to

whether the petitioner's income has increased or not the

fact of the matter remains as the cost of index has gone

high, the essential commodities for existence of a person

have become costlier and the prices have almost tripled if

not gone higher, the order of maintenance have been

justifiably varied in favour of the respondent by the learned

Principal Judge.

12. I feel that the increase of the maintenance allowance from

Rs.500/- to Rs.2,000/- from the date of filing of the

petition and to Rs.2,500/- from the date of passing of the

order till the time she is legally entitled is appropriate and

justified in view of the facts & circumstances of the case.

13. So far as the judgment of this Court in case titled Ritu Raj

Kant (Supra) is concerned, that was a case where the

maintenance was being claimed for the son against the

step father and not against the natural father apart from

the fact that the order was passed under Section 24 of the

Hindu Marriage Act, therefore, the facts of that case were

distinguishable from the facts of the present case. So far

as the second judgment which has been relied upon is

concerned, it is only a note, and therefore, it cannot be

taken cognizance of.

14. For the aforementioned reasons, I feel that there is no

illegality, impropriety or incorrectness in the impugned

order passed by the learned Principal Judge thereby

enhancing the maintenance allowance from Rs.500/- to

Rs.2,000/- from the date of filing of the petition and to

Rs.2,500/- from the date of passing of the order till the

time she is legally entitled. Accordingly, the petition is

without any merit and the same is dismissed.

V.K. SHALI, J.

May 19, 2011 KP