Kaur Singh alias Chamkaur Singh vs Surinder Kaur

Dr. Sarojnei Saksena, J.

By this order the Criminal Miscellaneous Petition No. 19716M of 1995 and Criminal Revision No. 731 of 1995 are being decided as they arise out of the order passed by the Judicial Magistrate I Class, Ludhiana dated 29.7.1994 (Annexure P2) and the order passed by the Sessions Judge, Ludhiana dated 12.5.1995 (Annexure P3).

Facts are taken from Criminal Miscellaneous No. 19716M of 1995. Briefly stated the facts are that the petitioner Kaur Singh was married to respondent Surinder Kaur in the year 1975. In this wedlock, they were not blessed with any offspring. They lived together for 2 years. Thereafter respondentwife is living separately. Husbandpetitioner pleaded that he and respondent wife could not adjust with each other and bickering between them started within the first week of marriage. After staying with him for 2 years, the respondent wife deserted him. The petitionerhusband made several attempts to bring her back, but she always declined. After more than three years of her stay in her parental home, respondentwife filed an application under Section 125, Code of Criminal Procedure before the Judicial Magistrate I Class, Ludhiana for grant of maintenance at the rate of Rs. 300/ per month. Service was not effected on the petitioner; therefore, he could not appear in that Court to contest the petition; the case was taken up ex parte. The learned Judicial Magistrate I Class, Ludhiana vide his order dated 4.2.1981 granted maintenance allowance at the rate of Rs. 150/ per month with effect from the date of order. This order was arbitrary as respondentwife left the matrimonial home without petitioner''s consent and without any cogent or valid reason.

After the passing of the order dated 4.2.1981 the petitioner started ignoring his work and ultimately was under heavy loan from different banks including the Mortgage bank and his entire land stands mortgaged with the banks. He was not in a position to pay even Rs. 150/ per month due to his deteriorated economic condition. But the respondent filed an application under Section 127 of the Code of Criminal Procedure for enhancement of maintenance from Rs. 150/ per month to Rs. 500/ per month. This petition was contested by the husband, but vide order dated 29.7.1994 her petition was allowed and maintenance allowance was enhanced from Rs. 150/ to Rs. 500/ per month with effect from the date of order.

Aggrieved by that order dated 29.7.1994 the petitioner filed revision before the Sessions Judge, Ludhiana. After hearing both the parties, the Sessions Judge, Ludhiana reduced the maintenance allowance from Rs. 500/ per month to Rs. 325/ per month with effect from the date of application i.e. 18.8.1989. The petitionerhusband averred that his entire land is mortgaged, he is not cultivating it properly since he has no money to cultivate it. Father of the respondent is very big landlord and owner 8100 bighas of land. Respondent is getting her share in the land, which is almost the double of the land of the petitioner. She is also doing the work of knitting and sewing and therefore, she should not be allowed the maintenance allowance at the rate of Rs. 300/ per month. He averred that the learned Sessions Judge has wrongly enhanced maintenance from Rs. 150/ per month to Rs. 325/ from the date of application. Hence, he prayed that the order dated 18.8.1989 passed by the Judicial Magistrate I Class (Annexure P2) and the order dated 12.5.1995 passed by the Sessions Judge, Ludhiana (Annexure P3) be quashed.

In her revision, wife has averred that the learned Sessions Judge committed illegality and interfered in the discretion exercised by the trial Court whereby he enhanced the maintenance granted to her from Rs. 150/ to Rs. 500/ per month. The learned trial Court perused the whole of the evidence and gave finding that the petitioner has no source of income and husband owns 16 bighas of land. He also took into consideration the increase in prices of livelihood and increase in income from agricultural land. Thus, according to her, the learned Sessions Judge, Ludhiana, has reduced the amount of enhanced maintenance from Rs. 500/ to Rs. 325/ only on the ground that increase in prices is both for the husband as well as for the wife. Without pointing out any illegality or irregularity in the impugned order, he has reduced the enhanced maintenance from Rs. 500/ to rs. 325/ per month. Hence, she prayed that revision petition be allowed and the impugned order reducing the maintenance be set aside.

During arguments, petitionerhusband''s learned counsel admitted that the enhancement of maintenance from Rs. 150/ to Rs. 325/ per month, as ordered by the Sessions Judge, Ludhiana is not very seriously challenged by the husband/petitioner, but he strongly canvassed that the learned Sessions Judge has fallen into an error in awarding the enhanced maintenance at the rate of Rs. 325/ per month from the date of petition, i.e., 18.8.1989. According to him, unless special reasons are mentioned in the order itself, maintenance cannot be awarded from the date of application. It should always be awarded from the date of order. To support this contention, he has relied on Ramesh v. Chitra, II(1988) DMC 502; Dharmendra Kumar Gupta v. Smt. Chandra Parbha Devi, 1990(2) Recent Criminal reports 583 ; Arun Kumar Sharma v. Smt. Rama Sharma and another, 1991(1) Recent Criminal Reports 151 and Arun Kumar v. Kamlesh Kumari, 1989(1) Recent Criminal Reports 233.

Respondent''s learned counsel valiantly argued that the enhancement can be ordered from the date of application. To support his arguments, he has referred to a judgment of this high Court in Amar Singh v. Satya Devi and others, 1997 Cr. L.J. 4681. Respondentwife''s learned counsel also argued that the learned Sessions Judge has wrongly reduced the amount of maintenance from Rs. 500/ to Rs. 325/. He has not assigned any valid reason for this reduction in the amount of maintenance. It is common knowledge that the price index has gone very high since 1981. Maintenance at the rate of Rs. 150/ per month was awarded by the Judicial Magistrate I Class, Ludhiana, vide his order dated 4.2.1981. After 8 years, on 8.8.1989 wife filed an application under Section 127 of the Code of Criminal Procedure alleging that the amount of Rs. 150/ per month is not sufficient for her maintenance taking into consideration the hike in price of all the essential commodities; therefore, she prayed that he amount of maintenance be enhanced from Rs. 150/ to Rs. 500/. Her prayer was allowed and the learned Magistrate enhanced the maintenance at the rate of Rs. 500/ per month from the date of order. When the husband filed revision against this order, the learned Sessions Judge has reduced the amount of maintenance from Rs. 500/ to Rs. 325/ by assigning only the following reasons :

"There is no evidence that the wife earns or that she owns land. There is evidence that the husband owns land vide Jamabandi Exhibit A1. There is no gainsaying the fact that the prices of essentials of life have gone at least two folds since after the year 1981. Increase in the prices of essentials of life affects both husband and wife. Maintenance allowance allowed to the wife is little excessive. Revision filed by Kaur Singh is partly accepted and the wife is allowed maintenance at the rate of Rs. 325/ per month."

Respondent''s learned counsel submits that there is hardly any valid reason assigned by the learned Sessions Judge, Ludhiana while reducing the amount of maintenance granted to the wife from Rs. 500/ to Rs. 325/. He also submits that it is a known fact that the prices have increased in geometrical figures and it is more than 10 times than the price index of 1981. Under these circumstances, the learned Sessions Judge though has rightly awarded the enhanced maintenance from the date of application. has fallen into an error in reducing that amount from Rs. 500/ to Rs. 325/.

After hearing rival contentions, in my considered view, there is no merit in the revision filed by the husband and wife''s revision deserves to be accepted.

On 11.10.1980 wife filed the petition under Section 125 of the Code of Criminal Procedure against the husband claiming maintenance at the rate of Rs. 300/ per month. Wife examined four witnesses including herself; despite service husband remained absent and the case proceeded ex parte. By adducing her evidence, wife proved that she has been turned out of the matrimonial home by the husband as she could not give birth to any child. Husband wanted to marry her sister, but her father declined. Wife also proved that even now she is ready and willing to reside with the husband. Husband filed the petition under Section 9 of the Hindu Marriage Act as well as the divorce petition under Section 13 of the Act. Both were dismissed. She also produced in evidence jamabandi, Exhibit A1 showing that the husband owns 15/16 bighas of land in his name which can easily fetch an income of Rs. 7000/ to Rs. 8000/ per month, even if it is given on batai. Considering the evidence on record, the learned Judicial Magistrate I Class Ludhiana allowed the wife''s petition and granted her maintenance at the rate of Rs. 150/ per month with effect from the date of order dated 4.2.1981.

On 18.8.1989 wife filed an application under Section 127 of the Code of Criminal Procedure claiming enhancement of maintenance from Rs. 150/ to Rs. 500/. She pleaded that the prices of daily use articles have gone high more than 10 times. It is difficult for her to make both ends meet with this meagre mount of Rs. 150/ per month. Respondenthusband owns 16 bighas of land in his own name and also an equal area in the name of his mother. By cultivating this land, he earns about Rs. one lac per month and she prayed for enhancement of maintenance from Rs. 150/ to Rs. 500/ per month.

On being noticed, the husband submitted reply. He denied the averments made in the petition. He also denied that she is not in possession of any property and has no source of income. He averred that she is doing sewing and stitching work and is earning more than Rs. 600/ per month and thus, she is able to maintain herself. The applicantwife examined three witnesses including herself. The respondent entered the witnessbox but did not examine any other witness. The learned Magistrate considered the evidence adduced by the parties and observed that about 1011 years back, wife was granted maintenance in the sum of Rs. 150/ per month, but now prices of daily used articles have gone up for more than 10 times. Wife also proved that husband owns 15/16 bighas of land. Wife denied that she has any source of income or she is doing sewing or stitching work and is earning any thing thereby. Husband stated on oath that he is T.B. patient. His mother is aged about 70 years. She is blind. He is spending about Rs. 1500/ per month over her treatment and Rs. 700/ to Rs. 800/ per month over his own treatment. He has also produced the medical certificate Exhibit R1 in support of his treatment. After considering the jamabandi produced on record, the learned Judicial Magistrate I Class, Ludhiana, held that respondenthusband owns 16 bighas of land. Wife is not doing stitching work or embroidery work. On one hand, prices of essential commodities have gone high and on the other hand, there is an increase in the income from agriculture. Thus, weighing evidence adduced by the parties and relying on a judgment of this High Court, the learned Judicial Magistrate I Class, Ludhiana, enhanced the amount of maintenance from Rs. 150/ to Rs. 500/ per month, which is made payable from the date of order dated 29.7.1994.

When the husband filed revision against this order, the learned Sessions Judge, Ludhiana, reduced the maintenance from Rs. 500/ to Rs. 325/ on the reasons given in para 9 of his order quoted above in extenso. Thus, according to the learned counsel appearing for the respondentwife, the learned Sessions Judge, while exercising the revisional jurisdiction under Section 401 of the Code of Criminal Procedure, should not have interfered with the judicial discretion exercised by the learned Magistrate, who passed the order dated 29.7.1994 enhancing the amount of maintenance from Rs. 150/ to Rs. 500/, which was a well reasoned order, without arriving at a conclusion that this order suffers from any infirmity or illegality or jurisdictional error. The learned Sessions Judge has not held that the learned Magistrate has not weighed the evidence properly and has not arrived at a correct conclusion. Simply on the basis of his own surmises and conjecture, he has reduced the amount of maintenance granted to the wife from Rs. 500/ to Rs. 325/. Thus, according to him, this part of the order passed by the learned Sessions Judge, Ludhiana, be set aside and maintenance be enhanced at the rate of Rs. 500/ per month.

So far as wife''s revision is concerned, the learned Magistrate while passing the order dated 29.7.1994 has weighed the evidence adduced by the parties and has arrived at a well reasoned conclusion that about 10/11 years back, the maintenance was granted to the wife at Rs. 150/ per month and since the prices of daily use articles have gone up for more than 10 times and the respondent is owning 16 bighas of land, the wife has no source of income; therefore, maintenance awarded to her at the rate of Rs. 150/ per month is not sufficient. As income of the husband from agricultural land is also increased, thus relying on the observations made by this High Court in Kalawati v. Bishan Lal, 1992(2) C.C. Cases 432, he enhanced the maintenance from Rs. 150/ to Rs. 500/ per month.

Aggrieved by the aforesaid order, when the husband filed revision, the Sessions Judge reduced this amount of maintenance from Rs. 500/ to Rs. 325/ simply on the basis that the hike in prices is both for the husband as well as for the wife. The price index of essential commodities of life has gone at least two fold high since the year 1981. Therefore, in his considered view, enhancement of maintenance allowance in favour of the wife is little excessive. This finding of the learned Sessions Judge is based on fragile foundation. It cannot be suggested with any modicum of reasonableness that since the year 1981 till 1989 the price index of essential commodities of life has increased only two fold. The learned Sessions Judge blissfully forgot that the learned Magistrate has considered the evidence adduced by the parties and on the basis of that evidence he has arrived at the conclusion that the amount of Rs. 150/ per month is not sufficient for the maintenance of the wife keeping in view the price hike in essential commodities of life which have gone high by 10 times. The learned Magistrate rightly considered the spiralling prices of essential commodities and rightly enhanced the maintenance from Rs. 150/ to Rs. 500/ per month. The learned Sessions Judge could have interfered with the judicial discretion exercised by the Magistrate in favour of respondentwife only if he would have found that the findings recorded by the learned Magistrate were infirm or illegal on any count or it is not based on evidence or he has misread the evidence on record or the order suffers from any jurisdictional error. No such infirmity or illegality was detected by the learned Sessions Judge in the impugned order passed by the learned Judicial Magistrate I Class. Simply on the basis that the price index has gone high both for wife as well as for the husband, he found that the enhancement of maintenance is little excessive in wife''s favour. He has utterly failed to consider that the income from the agricultural land has increased many folds since 1981. According to the learned Sessions Judge, wife is not entitled to enhancement of maintenance at the rate of Rs. 500/ per month. Hence, he conveniently slashed it to Rs. 325/ per month without any cogent evidence/reason.

Thus, in my considered view, the learned Sessions Judge fell into an error in reducing the amount of enhanced maintenance from Rs. 500/ to Rs. 325/. To this extent, the impugned order passed by the learned Sessions Judge, Ludhiana is bad in law and liable to be set aside.

So far as other point raised by the learned counsel appearing for the husbandpetitioner is concerned, in my considered view, there is little force in that submission as well. Remesh''s case (supra) is distinguishable because that order was passed in connection with the petition filed under Section 24 of the Hindu Marriage Act, which does not prescribe any limit to which maintenance can be awarded. Under Section 125 of the Code of Criminal Procedure, maintenance cannot be awarded to a claimant more than Rs. 500/.

In Dharmendra Kumar Gupta, Arun Kumar Sharma and Kamlesh Kumari''s cases (supra) it is held that while granting maintenance under Section 125 of the Code, ordinarily maintenance should be awarded from the date of passing of the order and not from the date of application unless there are circumstances justifying the same or such order is supported by reasons. In this case, reasons are given by the learned Judicial Magistrate I Class Ludhiana, when he passed the order dated 29.7.1994. The learned Sessions Judge has not mentioned any specific reason why he is ordering that enhanced maintenance be paid from the date of application. Such an order is to be passed on the basis of the facts pleaded in the application filed under Section 127 of the Code of Criminal Procedure, if those facts are also proved by the claimants.

In Amar Singh''s case (supra), after considering various judgments, a single Bench of this High Court held :

"The provisions of Sections 125(2) and 127 of the Code are not conflicting provisions in the Code. Section 125 lays down the foundation and its upper edifice is Section 127. While laying down the foundation a discretion is given to the Magistrate to award maintenance either from the date of application or from the date of order. There is no reason to circumscribe the order of enhancement to be passed under Section 127 of the Code to the date of order only. The purpose of these provisions is to provide a living maintenance to the destitutes. Therefore, when such a destitute is claiming enhancement in the maintenance already awarded to him/her, stating the changed circumstances on the basis of which the petitioner is claiming such an enhancement, it should be granted from the date of application if the petitioner is able to prove the change in circumstances from the date of presentation of the petition."

Wife has not only pleaded but has proved also that because of the spiralling prices after 8 years of the first order passed in her favour whereby maintenance was awarded to her at the rate of Rs. 150/ per month, she is claiming enhancement. She also proved her allegations; therefore, the learned Magistrate considering the necessity of the wife in the background of the enhanced price index of essential commodities, allowed the petition under Section 127 of the Code of Criminal Procedure. When that very evidence was before the learned Sessions Judge, Ludhiana, he rightly held that the wife is entitled to enhanced maintenance from the date of petition, i.e., 18.8.1989. Accordingly, wife''s revision petition is allowed; impugned order passed by the learned Sessions Judge is partly set aside. It is ordered that the respondentwife is entitled to enhanced maintenance at the rate or Rs. 500/ per month from the date of her application dated 18.8.1989 filed under section 127 of the Code of Criminal Procedure.

Consequently, husband''s revision petition is dismissed.