Bhanwra Ram vs Smt. Anu

H.R. Panwar, J.—This Criminal miscellaneous petition u/s 482 Cr.P.C. is directed against the order dt. 24.01.2006 passed by the Additional Sessions Judge, Barmer (for short, "the Revisional Court") whereby the revision petition filed by the petitioner against the order dt. 15.10.2004 passed by the Judicial Magistrate, First Class, Barmer (for short "the trial Court"), has been dismissed.

I have learned Counsel for the parties.

It is contended by learned Counsel for the petitioner that the respondent filed an application u/s 127 Cr.P.C. seeking modification/enhancement of the monthly allowance of maintenance, which came to be allowed by the trial Court vide order dt. 15.10.2004 without there being any proof for increase in the monthly allowance of maintenance. It is further contended that the trial Court fell in error in granting application instead of date of order, Learned Counsel has relied on few decisions of this Court wherein it has been held that modification in monthly allowance of maintenance should be from the date of order and not from the date of application. A reference is made to the decision of this Court in Chhotu Singh and Another Vs. Smt. Ramdini, and in Raj Kumar v. Mst. Shanta Bai 2002(2) CCC 251 (Raj.).

In Chanan Singh Vs. Nardu Devi and Another, the Himachal Pradesh High Court held that in absence of any evidence led by parties u/s 127 Cr.P.C., the order of enhancement could not have been passed and order was held to be unsustainable in eye of law.

Learned Counsel appearing for the respondents have supported the orders impugned and submitted that so far as the order from the date of application is concerned, the Hon''ble Supreme Court has held in Sahu Suman Narayan Niphade and another Vs. Narayan Sitaram Niphade and another, 1995(4) Supp (4) SCC 243 that the grant of enhancement of the maintenance whether should be allowed from the date of application, is the discretion of the Court.

I have given my thoughtful consideration to the rival submission made by learned Counsel for the parties. Carefully gone through the orders passed by both the Courts below as also the record of the trial Court.

In the instant case, indisputably, the respondent wife filed an application before the trial Court u/s 127 Cr.P.C. and reply to the application was filed by the petitioner disputing his monthly income as also coming with a case that amount of monthly allowance granted to the respondent earlier is adequate. It also appears that in the application filed by the respondent-Smt. Anu, the respondent prayed that the monthly allowance of maintenance granted by order dt. 21.04.1994 at the rate of Rs. 200/- per month may be enhanced to Rs. 500/- per month. Thus, the prayer of the respondent was to enhance the monthly allowance of maintenance from Rs. 200/- to Rs. 500/-. However, the trial Court has enhanced the monthly allowance of maintenance from Rs. 200/- to Rs. 1000/-. Indisputably, none of the parties led evidence. At any rate, it was burden on the respondent to prove the change of circumstances for receiving the amount u/s 127 Cr.P.C. for the maintenance and also making enhancement. Since, none of the parties led evidence, therefore, absolutely, there is no proof before the trial Court to hold that the petitioner is directed to pay the monthly allowance of maintenance at the rate of Rs. 1000/- per month in favour the respondent. Even, it is not the case of the respondent to enhance the monthly allowance of maintenance from Rs. 200/- to Rs. 1000/-. In the circumstances, therefore, the order impugned passed by the trial Court as well as revision Court cannot sustain and liable to be set aside.

Consequently, the criminal misc. petition is allowed. The order passed by the trial Court dt. 15.10.2004 as also the revisional Court dt. 24.01.2006 are hereby set aside and the matter is remanded to the trial Court to allow the party to lead evidence and on proof, pass an order afresh in accordance with the law. Stay petition stands disposed of.