Ganesh Kumar vs Arti Devi And Another
2023 Latest Caselaw 5465 HP

         IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
                                     Cr. Revision No. 268 of 2022
                                        Decided on: May 10, 2023
    _______________________________________________________________




                                                                                .
    Ganesh Kumar                                  ...........Petitioner





                                   Versus
    Arti Devi and another                           ....Respondents
    _______________________________________________________________





    Coram:
    Hon'ble Mr. Justice Sandeep Sharma, Judge.
    Whether approved for reporting? 1No.

    For the Petitioner                     :      Mr. Sat Prakash, Advocate.





    For the Respondents                    :
                                  Mr. Anand Sharma, Senior Advocate
                                  with Mr. Karan Sharma, Advocate.
    _______________________________________________________________
    Sandeep Sharma, Judge (oral):

By way of instant petition filed under Ss. 397/401 CrPC,

challenge has been laid to judgment dated 26.2.2022 passed by

learned Principal Judge (Family Court), Chamba, Himachal Pradesh

camp at Dalhousie, in case No. 21/2019 titled Arti Devi and another v.

Ganesh Kumar, whereby learned court below, while exercising power

under S.127 CrPC, enhanced maintenance awarded by learned

Judicial Magistrate First Class, Dalhousie in favour of respondents

from Rs. 2,000/- to Rs. 6500/- and from Rs. 1200/- to Rs.4000/-

respectively.

2. Precisely the facts as emerge from the record are that

respondent No.1, after being divorced by the petitioner, instituted

proceedings under S.125 CrPC, for grant of maintenance in her favour

and in favour of her daughter i.e. respondent No.2. Learned Judicial

Magistrate First Class, Dalhousie, vide order dated 10.9.2014 passed

Whether the reporters of the local papers may be allowed to see the judgment?

in Case No. 2-IV/2009 filed under S.125 CrPC, granted maintenance in

favour of respondents Nos. 1 and 2 to the tune of Rs.2,000/- and

.

Rs.1200/- per month respectively. After nine four years of passing of

aforesaid order, respondents filed a petition under S.127 CrPC for

enhancement of the maintenance amount on the ground of escalation

in prices of essential commodities and the education of respondent

No.2. Learned Principal Judge (Family Court), Chamba camp at

Dalhousie, vide judgment dated 26.2.2022, enhanced the amounts to

r to Rs.6500/- and Rs.4000/- respectively, in favour of respondents Nos. 1

and 2. In the aforesaid background, the petitioner has approached this

Court in the instant proceedings, praying therein to set aside the

judgment passed by learned Principal Judge (Family Court).

3. Precisely, the grouse of the petitioner, as has been highlighted

in the petition as also canvassed by Mr. Sat Parkash, learned counsel

for the petitioner is that there was no reasonable ground for the learned

court below for ordering enhancement of amount, especially when no

changed circumstances, if any, was pointed out by the respondents,

while seeking enhancement of maintenance.

4. Mr. Sat Prakash, learned counsel for the petitioner further

argued that it is an admitted case of the respondents that the petitioner

is in receipt of Rs.26,000/- per month as salary and as such, it would

be impossible for him to part with Rs.10,500/- per month, out of

Rs.26,000/-, because in that event, other family members of the

petitioner would be neglected. Learned counsel for the petitioner

further argued that learned court below, while ordering enhancement

failed to take note of the fact that marriage inter se petitioner and

respondent No.1 stood dissolved and as such, there was otherwise no

.

occasion for the learned court below to order enhancement, rather,

order granting maintenance amount by learned trial Court, ought to

have been quashed and set aside. He further submitted that

respondent No.2 is studying in Government school, where she is not

charged any fee, as such, learned court below wrongly enhanced the

maintenance awarded in favour of respondent No.2 from Rs.1200 to

Rs.4000.

5.

While refuting aforesaid submissions made by learned counsel

for the petitioner, Mr. Karan Sharma, learned counsel for the

respondents, vehemently argued that there is no illegality and infirmity

in the order impugned in the instant proceedings, rather, same is based

upon proper appreciation of law and facts, as such, calls for no

interference. Mr. Sharma, further submitted that no evidence wroth

credence ever came to be led on record on behalf of the petitioner,

suggestive of the fact that he apart from maintaining himself is also

under obligation to maintain other family members, as such, learned

court below, rightly held that a sum of Rs.15,000-16,000/- shall be

sufficient for the petitioner to maintain himself. Mr. Sharma, further

argued that till the time, respondent No.1 remarries, factum if any, of

divorce inter se petitioner and respondent. No.1 is of no consequence,

because under S.125(1), a divorced wife is also entitled to claim

maintenance till the time, she remarries.

6. Having heard learned counsel for the parties and perused the

material available on record vis-a-vis reasoning assigned in the order

.

impugned in the instant proceedings, this court finds no illegality or

infirmity in the same, because the impugned order /judgment is based

on order passed by Hon'ble Apex Court in Kalyan Dey Chaudhury v.

Rita Dey Chaudhury Nee Nandy, AIR 2017 SC 2383, wherein it has

been held that 25% of husband's net salary would be just and proper to

be awarded as maintenance to the respondent-wife. Though,

respondents, herein attempted to carve out a case that the petitioner is

in receipt of salary to the tune of Rs.60,000/- but since said fact never

came to be proved in accordance with law coupled with the fact that

petitioner successfully proved on record while placing on record salary

slip (Exhibit. R-1) that he is getting salary to the tune of Rs.26,000/-, no

illegality can be said to have been committed by learned court below,

while considering monthly salary of the petitioner as Rs.26,000/-.

7. Initially, on 10.9.2014, Judicial Magistrate First Class, Dalhousie

had granted maintenance to the tune of Rs.2,000/- and Rs.1200/- in

favour of respondents Nos. 1 and 2, respectively, under S.125 CrPC,

as such, it cannot be said that there was no changed circumstance

when respondents filed petition under S.127 CrPC for enhancement in

the year 2018. In the interregnum of five years, prices of essential

commodities have increased manifold. Otherwise also, sum of Rs.3200

(Rs.2,000+1200) awarded by learned trial Court, under S.125 CrPC,

vide order dated 10.9.2014, cannot be said to be sufficient for the

sustenance of two lives. In today's date, even an LPG cylinder costs

more than Rs.1200/-. Apart from above, it is not in dispute that

respondent No.2 at present is studying in XII and petitioner in his

.

cross-examination himself admitted that a person studying in class X

requires a sum of Rs.4000/- for education and other expenses.

8. Though, learned counsel for the petitioner claimed that the

petitioner has other responsibilities but no evidence worth credence

ever came to be led on record that the petitioner besides making

payment on account of maintenance in favour of respondents Nos. 1

and 2 has liability to take care of other persons, rather, as per own

case of the petitioner, he lives in Jallander alone and works as Lab

Technician. Though the petitioner attempted to carve out a case that

fee is not charged in Government school, but he was unable to rebut

the argument raised by the respondents that free education under the

Right of Children to Free and Compulsory Act, 2009 is provided upto

the age of 14 years only.

9. Though, in the case at hand, marriage inter se petitioner and

respondent No.1 stands dissolved by way of decree of divorce but bare

perusal of S.125(1) CrPC clearly reveals that even a wife, who has

been divorced, is entitled to maintenance till the time she remarries. In

the case at hand, petitioner has not been able to prove that respondent

No.1 has remarried, as such, he is otherwise under obligation to pay

maintenance.

10. Though learned counsel for the petitioner argued that

enhancement is on higher side but, as has been taken note herein

above, learned court below has enhanced the maintenance in light of

order passed by Hon'ble Apex Court (supra), whereby it has been held

that 25% of husband's salary would be just amount to be awarded as

.

maintenance in favour of the respondent-wife. Similarly, it cannot be

denied that the petitioner being father, is under obligation to maintain

his daughter, till the time, she attains majority. If it so, sum of

Rs.4,000/- awarded by learned court below, as maintenance in favour

of respondent no.2, cannot be said to be on higher side.

11. In the aforesaid background, this court finds no illegality or

infirmity in the judgment dated 26.2.2022 passed by learned Principal

Judge (Family Court), Chamba Himachal Pradesh camp at Dalhousie,

which is upheld and petition is dismissed. Pending applications, if any

stand disposed of. Interim directions, if any, stand vacated.

(Sandeep Sharma) Judge

May 10, 2023 (vikrant)