Himachal Pradesh High Court

Bhawan vs Downloaded On - 31/01/2022 ... on 18 August, 2021

Bench: Tarlok Singh Chauhan

                                  REPORTABLE/NON-REPORTABLE

       IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA




                                                         .

                 ON THE 18th DAY OF AUGUST, 2021

                               BEFORE





           HON'BLE MR. JUSTICE TARLOK SINGH CHAUHAN

     CRIMINAL MISC. PETITION (MAIN) U/S 482 CRPC NOS. 182 &
                          196 OF 2020





    Between:-

    CRIMINAL MISC. PETITION (MAIN) U/S 482 CRPC NO. 182 OF 2020

    SURAT SINGH S/O LATE SH.

    RAM    NATH,    R/O    SURAT

    BHAWAN,        KHUNDIDHAR,
    SHAMTI,    RAJGARH     ROAD,
    TEHSIL AND DISTRICT SOLAN,
    AGED    ABOUT    81   YEARS,
    MOBILE    NO.    9805594148,



    OCCUPATION AGRICULTURIST
                                                       ...PETITIONER
    (BY SH. M. S. CHANDEL, ADVOCATE)




    AND





    SMT. SHARDA D/O SH. KUNDAN
    SINGH, R/O SURAT BHAWAN,
    KHUNDIDHAR,         SHAMTI,





    RAJGARH   ROAD,  TEHSIL  &
    DISTRICT SOLAN.
                                                  ...RESPONDENT
    (BY SUDHIR THAKUR SENIOR
    ADVOCATE WITH MR. KARUN
    NEGI, ADVOCATE)


    CRIMINAL MISC. PETITION (MAIN) U/S 482 CRPC NO. 196 OF 2020

    SHARDA DAUGHTER OF LATE
    SH. KUNDAN SINGH, WIFE OF
    SH. SURAT SINGH, RESIDENT
    OF SURAT BHAWAN, RAJGARH




                                        ::: Downloaded on - 31/01/2022 22:53:58 :::CIS
                                      2




    ROAD KHUNDIDHAR, SHAMTI,
    TEHSIL & DISTRICT SOLAN, H.P.
                                                            ...PETITIONER




                                                              .
    (BY SUDHIR THAKUR SENIOR





    ADVOCATE WITH MR. KARUN
    NEGI, ADVOCATE)

    AND





    SURAT SINGH S/O LATE SH.
    RAM    NATH,   RESIDENT   OF
    SURAT    BHAWAN,     RAJGARH
    ROAD KHUNDIDHAR, SHAMTI,





    TEHSIL & DISTRICT SOLAN.
                                                          ..RESPONDENT

    (SH. M. S. CHANDEL, ADVOCATE)

    RESERVED ON: 13.08.2021.

    This Petition coming on for orders this day, the Court passed the
    following:-


                                   ORDER

Since both these appeals arise out of the judgment

dated 29.02.2019, therefore, they are taken up together for

consideration and are being disposed of by way of a common

reasoning.

2. Both the parties have filed these petitions under

Section 482 of the Code of Criminal Procedure against the

judgment dated 29.02.2020 passed by the learned Additional

Sessions Judge-I, Solan, District Solan, H.P. in Criminal Appeal No.

6-S/10 of 2019 and Criminal Appeal No. 34-S/10 of 2019.

3. Brief facts leading to the present appeal are that the

applicant-Sharda (hereinafter referred to as the 'Applicant') had

filed an application under Section 12 of Protection of Women

from domestic Violence Act, 2005 alleging that the applicant was

living with respondent-Surat Singh (hereinafter referred to as the

'Respondent') as wife for the last 40 years. Their marriage was

solemnized in the year 1960 and two children, namely, Surinder

Prakash and Sushma were born out of the wedlock. The long and

continuous cohabitation between the applicant and the

respondent has been adjudged by Civil Court. Though Civil Court

had held that the applicant cannot be said to be the legally

married to the respondent but it was concluded that the

applicant and respondent are living together in a house hold as

they are related by consanguinity and relationship like marriage

for all intends and purposes. The Pariwar Register, electoral card

also depict that applicant and respondent were living as husband

and wife. The applicant was also residing in a house owned by

respondent at Mauja Shamti, Solan. The applicant asserted her

right to retain the possession over the part of building i.e. Surat

Bhawan. She also alleged that respondent had cheated and

misguided her by assuring that she would be kept as a wife and

his wife has already been divorced. The respondent was jailed in

a criminal case under Section 302 of IPC and during this time the

applicant not only managed the litigation but also looked after

the family of the respondent. She also arranged legal assistance

for the respondent when he was facing trial under Section 380 of

IPC. During the course of marriage Sushma daughter was born in

1989-90. Thus according to applicant since she has continuously

cohabited with respondent for the last 40 years, she should not

be forcibly evicted from the building in her possession. She has

also prayed that respondent be restrained from disconnecting

the water and electricity connections of the 4 th storey of Surat

Bhawan or alienating or disposing of the property in order to

adversely affect her right. She has further prayed for grant of

maintenance alleging that she did not have any source of

income.

4. The claim of applicant was resisted by the

respondent on the ground that the applicant was an active

political leader and member of Kisan Sabha since 1974 when she

came in contact with respondent. In separate proceedings under

Section 125 Cr.P.C. learned Chief Judicial Magistrate has held that

the applicant was not legally wedded wife of respondent. The

respondent has asserted that applicant never came in contact

with him and never resided with him since the year 1984 as

during that time she started living with her parents at village

Tanach. The children i.e Surinder and Sushma were also studying

in School at Shawya in th year 1993-94 when applicant left her

children they were studying with children of Durgi Devi wife of

respondent. The respondent had admitted that the applicant and

respondent are related by consanguinity. It was also admitted

that applicant and her son are in occupation of two rooms set.

The respondent has alleged that applicant has married to Basti

Ram of Manwa and thereafter married a person at village Dana

Badag. The respondent also alleged that in order to get vacated

the room in possession of son of respondent Chander Shekher

the applicant and her son called police on 31.08.2009. In fact the

respondent had resorted to procedure of law and gave notice to

applicant to vacate the accommodation.

5. Learned Trial Court after recording evidence and

evaluating the same held the applicant entitled for maintenance

to the tune of Rs.3000/- per month from the respondent, from

the date of this order with compensation of Rs.20,000/- and the

respondent was restrained from dispossessing the applicant or in

any manner disturbing the possession of applicant from the

residential house/shared household known as Surat Bhawan

situated at Shamti, Distt. Solan and further respondent is

restrained from alienating or renouncing his rights from the said

shared household.

6. Feeling aggrieved by the impugned order the appeal

titled as Sharda vs. Surat Singh has been filed on the grounds

that impugned order of the learned trial Court is illegal and not

sustainable. The applicant does not have any source of income

and respondent is a big landlord who owns landed property in

Solan and in his native village. The earnings of the respondent

are about Rs.50,000/- per month. Hence, the conclusion of the

learned trial court that the applicant was entitled for

maintenance of Rs.3,000/- per month is wrong and needs to be

altered. The applicant has sought enhancement of maintenance

to the extent of Rs.10,000/- per month from the date of

application. It is also asserted by applicant that due to act and

conduct of the respondent, the applicant has suffered mental

torture and assessment of compensation to the extent of

Rs.20,000/- is wrong and deserves to be modified on the higher

side.

7. Separate appeal filed by the respondent. It was

asserted that the learned trial Court order is contrary to the

evidence on record. In fact the applicant was already married to

the knowledge of respondent. Applicant who was member of

Kisan Sabha and besides this she entered into relationship with

respondent. The name of applicant was entered in the Pariwar

Habban along with the wife of respondent Smt. Durgi Devi and

her children. Photographs and other documents also shows that

applicant knew very well that respondent was married to Durgi

Devi and had six children. In these circumstances, the applicant

is not entitled for protection under domestic Violence Act, 2005.

The lower Court disbelieved the document i.e. Pariwar Register of

village Dana belonging to Gram Panchayat Danaghati mere on

the ground that Hira Singh is not resident of village Danaghati. It

was not observed by learned trial Court that Danaghati is name

of Gram Panchayat. The children of applicant were entered as

adopted children of Hira Singh in Gram Panchyat. It was asserted

that respondent is a senior citizen of 80 years of age. The

compensation as well as maintenance granted by the learned

trial Court is not maintainable. The son of applicant Surinder

Prakash is employed as Protection Officer and he has already

been directed by Court to give regular maintenance to his

mother.

8. Learned Additional Session Judge-I, Solan dismissed

both the appeals constraining both the parties to once again

approach this Court under Section 482 of the Code of Criminal

Procedure.

9. Criminal Misc. Petition (Main) No. 182 of 2020 has

been preferred by the respondent questioning the maintainability

and applicability of Protection of Women from Domestic Violence

Act, 2005 on the ground that the applicant is not covered under

the definition of "aggrieved person". Since the applicant was

already married and started living with another married person,

she is not entitled to any relief under the Act.

10. The applicant has filed separate petition being

Criminal Misc. Petition (Main) No. 196 of 2020 questioning the

inadequacy of compensation as also the date of award of

compensation, which according to the applicant ought to have

been from the date of application and not from the date of order.

11.

r to I have heard learned counsel for the parties and have

gone through the material placed on record.

At the outset, it needs to be observed that the

respondent right from the very beginning has continuously

denied his relationship with the applicant. It is evident from the

fact that when these proceedings were pending before the

learned Judicial Magistrate, Solan, the applicant had filed a

petition being Cr.MMO No. 198 of 2016, seeking direction to the

respondent to undergo DNA profiling. This application was

allowed by this Court vide its order dated 18.04.2017 and

pursuant to this DNA profiling was conducted and it has been

conclusively established that out of the relationship between

applicant and the respondent two children Surinder Prakash and

Sushma were born to the applicant from the loins of the

respondent.

12. At this stage, it would be relevant to reproduce some

of the observations that were made by this Court, which reads as

under:-

10. Shri H.S.Rana, learned counsel for the respondent,

has strenuously argued that the application filed by the petitioner is totally misconceived as the provisions of the 'DV Act' even in the case of "live-in-relationship" would only apply to cases where the "live-in-relationship" is a

"relationship in the nature of marriage" falling within the definition of the domestic relationship under Section 2(f) of the Act and has placed strong reliance upon the

judgment of the Hon'ble Supreme Court in Indra Sarma versus V.K.V.Sarma (2013) 15 SCC 755. He would

contend that the petitioner very well knew that the respondent is already married and still entered into relationship and even bore two children from his loins

and, therefore, her relationship with the respondent was not in the nature of marriage.

11. I have minutely and carefully gone through the judgment in Indra Sarma's case (supra) where the

Hon'ble Supreme Court has distinguished the "live-in- relationship" with that "relationship in the nature of

marriage". It was held that all "live-in-relationships" are not relationships in the nature of marriage. It was further held that relationship to qualify as "relationship in the nature of marriage" should have some inherent or essential characteristics of a marriage though not a marriage legally recognized. The Hon'ble Supreme Court drew a distinction between the nature of marriage and marital relationship by observing as under:-

"36. We have already dealt with what is "marriage", "marital relationship" and "marital obligations". Let us

.

now examine the meaning and scope of the expression

"relationship in the nature of marriage" which falls within the definition of Section 2(f) of the DV Act. Our concern in this case is of the third enumerated

category that is "relationship in the nature of marriage" which means a relationship which has some inherent or essential characteristics of a marriage though not a marriage legally recognized, and, hence, a comparison

of both will have to be resorted, to determine whether the relationship in a given case constitutes the characteristics of a regular marriage.

37. The distinction between the relationship in the

nature of marriage and marital relationship has to be noted first. Relationship of marriage continues, notwithstanding the fact that there are differences of

opinions, marital unrest etc., even if they are not sharing a shared household, being based on law. But live-in-relationship is purely an arrangement between

the parties unlike, a legal marriage. Once a party to a live-in- relationship determines that he/she does not

wish to live in such a relationship, that relationship comes to an end. Further, in a relationship in the nature

of marriage, the party asserting the existence of the relationship, at any stage or at any point of time, must positively prove the existence of the identifying characteristics of that relationship, since the legislature has used the expression "in the nature of"."

12. The Hon'ble Supreme Court thereafter proceeded to elucidate some of the categories of the cases which would or would not amount to relationship in the nature of marriage and the same are as under:-

"38. Reference to certain situations, in which the relationship between an aggrieved person referred to in

.

Section 2(a) and the respondent referred to in Section

2(q) of the DV Act, would or would not amount to a relationship in the nature of marriage, would be apposite. Following are some of the categories of cases

which are only illustrative:

38.1. (a) Domestic relationship between an unmarried adult woman and an unmarried adult

male.- Relationship between an unmarried adult woman and an unmarried adult male who lived or, at any point of time lived together in a shared household, will fall under the definition of Section 2(f) of the DV Act

and in case, there is any domestic violence, the same

will fall under Section 3 of the DV Act and the aggrieved person can always seek reliefs provided under Chapter IV of the DV Act.

38.2. (b) Domestic relationship between an unmarried woman and a married adult male.-

Situations may arise when an unmarried adult women knowingly enters into a relationship with a married

adult male. The question is whether such a relationship is a relationship "in the nature of marriage" so as to fall within the definition of Section 2(f) of the DV Act.

38.3. (c) Domestic relationship between a married adult woman and an unmarried adult male.- Situations may also arise where an adult married woman, knowingly enters into a relationship with an unmarried adult male, the question is whether such a relationship would fall within the expression relationship "in the nature of marriage".

38.4. (d) Domestic relationship between an unmarried woman unknowingly enters into a

.

relationship with a married adult male.- An

unmarried woman unknowingly enters into a relationship with a married adult male, may, in a given situation, fall within the definition of Section 2(f) of the

DV Act and such a relationship may be a relationship in the "nature of marriage", so far as the aggrieved person is concerned.

38.5 (e) Domestic relationship between same sex partners (Gay and Lesbians).- The DV Act does not recognize such a relationship and that relationship cannot be termed as a relationship in the nature of

marriage under the Act. Legislatures in some countries,

like the Interpretation Act, 1984 (Western Australia), the Interpretation Act, 1999 (New Zealand), the Domestic Violence Act, 1998 (South Africa), the Domestic

Violence, Crime and Victims Act, 2004 (U.K.), have recognized the relationship between the same sex couples and have brought these relationships into the

definition of Domestic relationship."

13. Finally, the Hon'ble Supreme Court culled out some of the guidelines for distinction under what circumstances, the "live- in-relationship" would fall within the expression "relationship

in the nature of marriage" under Section 2(f) of the DV Act, which according to it were only illustrative and not exhaustive but were only meant to give some insight to such relationship and the same read thus:-

"56. We may, on the basis of above discussion cull out some guidelines for testing under what circumstances, a live-in relationship will fall within the expression "relationship in the nature of marriage" under Section 2(f) of the DV Act. The guidelines, of course, are not

exhaustive, but will definitely give some insight to such relationships.

.

56.1. Duration of period of relationship.- Section 2(f) of the DV Act has used the expression "at any point of time", which means a reasonable period of time to

maintain and continue a relationship which may vary from case to case, depending upon the fact situation.

56.2. Shared household.- The expression has been

defined under Section 2(s) of the DV Act and, hence, need no further elaboration.

56.3. Pooling of resources and financial

arrangements.- Supporting each other, or any one of

them, financially, sharing bank accounts, acquiring immovable properties in joint names or in the name of the woman, long term investments in business, shares in separate and joint names, so as to have a long

standing relationship, may be a guiding factor.

56.4. Domestic arrangements.- Entrusting the

responsibility, especially on the woman to run the home, do the household activities like cleaning,

cooking, maintaining or upkeeping the house, etc. is an indication of a relationship in the nature of marriage.

56.5. Sexual relationship.- Marriage- like relationship refers to sexual relationship, not just for pleasure, but for emotional and intimate relationship, for procreation of children, so as to give emotional support, companionship and also material affection, caring etc.

56.6. Children.- Having children is a strong indication of a relationship in the nature of marriage. Parties, therefore, intend to have a long standing relationship.

Sharing the responsibility for bringing up and supporting them is also a strong indication.

.

56.7. Socialization in public.- Holding out to the public and socializing with friends, relations and others, as if they are husband and wife is a strong

circumstance to hold the relationship is in the nature of marriage.

56.8. Intention and conduct of the parties.-

Common intention of parties as to what their relationship is to be and to involve, and as to their respective roles and responsibilities, primarily determines the nature of that relationship."

14. Judged in the light of the aforesaid guidelines, it would be noticed that the Court here is dealing with a case where a woman (petitioner) herself admits that she has never married to the man (i.e. the respondent), but would claim that

respondent was having access to her and out of this relationship, two children were born, whereas the case of the

respondent is that of total denial of not only the relationship, but also with regard to the children being born out of this

relationship.

15. As observed earlier, the parties have two grown-up

children and, therefore, the sexual relationship interse them was not just for pleasure but for procreation of children so as to give emotional support, companionship as also material affection, caring etc. As observed by the Hon'ble Supreme Court, having children is a strong indication of relationship in the nature of marriage and would be a strong indicator to establish that the parties intended to have long standing relationship, sharing the responsibility for bringing up and supporting the children.

16. Therefore, prima-facie, having concluded that the parties are not totally strangers, I am of the considered

.

view that no prejudice would be caused either to the

respondent or the two children, if they undergo DNA test. After all, only the truth will come out from such test and it has to be remembered that every trial is a voyage of

discovery in which the truth is the quest. It is, therefore, the duty of the Court to ensure that the truth in a case comes out. The truth is the basis of justice delivery

system and therefore, should be the guiding star in the entire judicial process. The Court's serious endeavour has to be to find out where in fact the truth lies. Judges at all levels have to seriously engage themselves in the journey

of discovering the truth. That is their mandate, obligation

and bounden duty. Justice system will acquire credibility only when people will be convinced that justice is based on the foundation of the truth.

13. Admittedly, the aforesaid order has attained finality

and the observations that were prima facie made at the time of

passing of the order are now to be treated a conclusive inter se

the parties because of the establishment of paternity of the

respondent vis-a-vis two children Surinder Praksh and Sushma.

14. As regards the applicability of the Act, as contended

by Shri M. S. Chandel, Advocate, it needs to be remembered that

history behind the legislation of the Act, more particularly, the

object "An Act to provide for more effective protection of the

rights of woman guaranteed under the Constitution who are

victims of violence of any kind occurring within the family and

for matters connected therewith and incidental thereto", it would

be appropriate to once again refer to Indra Sarma's case

(supra) more particularly, paras 16 and 53, which read as

under:-

16. "Domestic Violence" is undoubtedly a human rights issue, which was not properly taken care of in this country even though the Vienna Accord 1994 and the Beijing Declaration and Platform for Action (1995) had

acknowledged that domestic violence was undoubtedly a human rights issue. UN Committee on Convention on Elimination of All Forms of Discrimination Against Women

in its general recommendations had also exhorted the

member countries to take steps to protect women against violence of any kind, especially that occurring within the family, a phenomenon widely prevalent in India. Presently,

when a woman is subjected to cruelty by husband or his relatives, it is an offence punishable under Section 498A IPC. The Civil Law, it was noticed, did not address this

phenomenon in its entirety. Consequently, the Parliament, to provide more effective protection of rights of women

guaranteed under the Constitution under Articles 14, 15 and 21, who are victims of violence of any kind occurring

in the family, enacted the DV Act.

53 Live-in relationship, as such, as already indicated, is a relationship which has not been socially accepted in India, unlike many other countries. In Lata Singh v. State of U. P., 2006 AIR(SC) 2522 it was observed that a live-in relationship between two consenting adults of heterosexual sex does not amount to any offence even though it may be perceived as immoral. However, in order to provide a remedy in Civil Law for protection of women,

from being victims of such relationship, and to prevent the occurrence of domestic violence in the society, first

.

time in India, the DV Act has been enacted to cover the

couple having relationship in the nature of marriage, persons related by consanguinity, marriages etc. We have few other legislations also where reliefs have been

provided to woman placed in certain vulnerable situations.

15. The object of enacting Domestic Violence Act is to

16. It is

needless

prevent deep rooted patriarchal set up prevailing in the Indian

society since time immemorial.

                                      to    emphasize       that     'domestic

    violence'    has got different facets which would affect the

woman of every social background irrespective of their age,

religion, caste or class. Indeed, it is a violent crime that not only

affects the woman but also her children. It is difficult to decipher

the root or the cause behind the crime. However, one of the

reasons resulting in the domestic violence is on account of

gender discrimination and destruction of power. The framers of

legislation having considered the relevant statutes which are

already in force felt that there is an imminent need to arrest the

particular type of violence that takes place in domestic set up.

17. In order to curb domestic violence, which includes

emotional, mental, financial and other forms of cruelty and

keeping in view the danger that would be caused to the healthy

life (mental or physical) of victim and also to relieve the woman

from physical, sexual, verbal, emotional and economic abuse, a

special statute i.e., Protection of Women from Domestic Violence

Act, 2005 has been enacted.

18. Earlier to passing of domestic violence Act, victim

could only resort to Section 498A of IPC or seek maintenance u/s

125 of Cr.PC. Since both the provisions of law were not sufficient

enough to deal with the situations referred to supra, Domestic

Violence Act came into force on and from 13.09.2005. It is also

worth to quote the objective of the Act which reads as under:-

"An Act to provide for more effective protection of the rights of woman guaranteed under the Constitution who are victims of violence of any kind occurring within the

family and for matters connected therewith and incidental thereto."

19. This enactment was made in order to implement the

recommendation No. 12 of United Nations Committee on

Convention for elimination of all forms of discrimination against

woman [CEDAW, 1989 which was ratified in India in June, 1993].

Therefore, any interpretation in respect of the Act should always

be in conformity to the international conventions and

international instruments and norms.

20. In Ishpal Singh Kahai vs. Ramanjeett Kahai,

2011 OnlineBom 412, the Hon'ble Bombay High Court held

that the object of the domestic Violence Act is to grant statutory

protection to the victims of violence in the domestic sector who

had no proprietary rights.

21. As observed above, every attempt is made by the

respondent to raise a ground that there was no marriage inter se

him and the applicant, therefore, the applicant is not entitled to

maintenance. This contention has virtually been over-ruled

22.

r to earlier by this Court while adjudicating Cr.MMO No. 198 of 2016

in paras 14 to 16 (supra).

It needs to be reiterated that the applicant has never

set up a plea that she was legally wedded wife and this question

has been answered while adjudicating Cr.MMO No. 198 of 2016.

23. The question as to whether the applicant had

solemnised marriage with the respondent during the subsistence

of her earlier marriage is/was not question required to be gone

into the proceedings under Section 12 of the Act. This has been

held by a Coordinate Bench of this Court in CMPMO No. 295 of

2019, titled as Param Jeet Singh vs. Kiran Bala and

another, decided on 15.03.2021, wherein it was observed as

under:-

10. "Whether respondent No.1 solemnized marriage with the petitioner during subsistence of her earlier marriage with respondent No.2 is /was not a question required to be gone into the proceedings under Section 12 of the Domestic Violence Act, rather in that case complainant

with a view to claim maintenance is/was only required to prove that her relationship with the petitioner falls within

.

the definition of expression "relationship in the nature of

marriage " under Section 2(f) of the Act and she has been subjected to domestic violence as defined under section 12 of the Act.

Consequently, the appeal by the respondent is

ordered to be dismissed.

24. Now, adverting to the petition filed by the applicant,

it would be noticed that the learned Trial Magistrate has awarded

the maintenance from the date of the order and not from the

date of the application.

25. This Court in Cr.MMO Nos. 51 and 52 of 2016,

titled as Rajnish Singh Chaudhary vs. Dr. Purnima Thapar

and Anr., decided on 23.05.2017, has held as under:-

25. As regards the order of maintenance being enforced from the date of the application, it is more than settled

that the order of maintenance has normally to be awarded from the date of application and only under the

compelling circumstances, can the order of grant of maintenance be postponed to a later date.

26. It is contended by the respondent that the applicant

cannot be awarded maintenance from the date of application as

the matter has been prolonged before the Court on her

instances. However, record reveals otherwise.

27. At this stage, it would be fruitful to refer to following

observations of the Hon'ble Supreme Court in Bhuwan Mohan

Singh vs. Meena and others (2015) 6 SCC 353, wherein it

was observed as under:-

"16. In the present case, as we find, there was enormous delay in disposal of the proceeding under Section 125 of the Code and most of the time the husband had taken adjournments and sometimes the court dealt with the

matter showing total laxity. The wife sustained herself as far as she could in that state for a period of nine years. The circumstances, in our considered opinion, required

grant of maintenance from the date of application and by

so granting the High Court has not committed any legal infirmity. Hence, we concur with the order of the High Court. However, we direct, as prayed by the learned

counsel for the appellant, that he may be allowed to pay the arrears along with the maintenance awarded at present in a phased manner. The learned counsel for the

respondents did not object to such an arrangement being made. In view of the aforesaid, we direct that while

paying the maintenance as fixed by the learned Family Court Judge per month by 5th of each succeeding month,

the arrears shall be paid in a proportionate manner within a period of three years from today.

28. In view of the aforesaid discussion, the order passed

by the learned Trial Court, as also upheld by the learned

Additional Session Judge, upholding the grant of maintenance

from the date of the order and not from the date of the

application is clearly erroneous and is accordingly set aside.

29. As regards the quantum of maintenance, it would be

noticed that the same was awarded in the year, 2018 vide order

dated 31.12.2018 and it cannot be denied that since then the

cost of living has gone up and it is more than settled that if the

cost of living has gone up then there is a change in the

circumstances in favour of the applicant, which enable her to ask

for enhancement of maintenance. The provision for maintenance