Kundan Singh Khampa vs Smt. Pushpa Devi and Another

Ram Autar Singh, J.—This revision has been filed against the judgment and order dated 30.1.2008 passed by Principal Judge, Family Court, Meerut, in Case No. 585 of 2004 (Puspa v. Kundan Singh), wherein an application u/s 127 Code of Criminal Procedure for enhancement of maintenance allowance has been allowed and maintenance allowance awarded in Case No. 323 of 1998 has been enhanced from Rs. 500/-to Rs. 2000/-for Respondent No. 1 and from Rs. 300/-to Rs. 1500/- per month each for her two children.

I have heard Shri Anil Mullick, learned Counsel for the revisionist and learned A.G.A. for Respondent No. 2 and perused the record. None has appeared for Respondent No. 1 to oppose this revision.

It transpires from the record that a case bearing No. 323 of 1998 was moved u/s 125 Code of Criminal Procedure by the Respondent No. 1 against the revisionist in the court of Principal Judge, Family Court, Meerut, in which an order was passed on 10.2.2000 and sum of Rs. 500/- per month for Respondent No. 1 and Rs. 300/-each for her two children was awarded as maintenance allowance. The Respondent No. 1 then instituted Case No. 585 pf 2005 against the revisionist for enhancement of maintenance allowance on the ground that her children being grown up started to go to school for getting education and the awarded amount became insufficient in order to meet their expenses. It was further mentioned that the revisionist working as Head Clerk in A.R.M. Office of State Road Transport Corporation, Ranikhet, District Almora was getting Rs. 15,000/- per month as his salary and he had no other responsibility to pay any expenses and thus Respondent No. 1 made demand of Rs. 6000/- per month for maintenance of herself and her children.

The learned court below allowed the said application and enhanced maintenance allowance as above, aggrieved by which, the revisionist filed this revision. The learned Counsel for the revisionist has contended that the learned court below has found monthly income of the revisionist as Rs. 15,000/- per month without any evidence, while the revisionist after deduction is getting Rs. 9,165/- per month as his salary and thus the enhancement of maintenance allowance is too excessive. It is further contended that the order u/s 125 Code of Criminal Procedure was passed on the basis of mutual agreement between the parties and as such in view of Section 125(4) Code of Criminal Procedure the Respondent No. 1 is not even entitled for maintenance allowance but the court below vide order dated 30.1.2008 has passed the impugned order against the provisions of law.

I have considered over the matter and found that the revisionist has not been able to establish on the basis of material on record that Respondent No. 1 is living in adultery or she has refused to live with her husband without any sufficient cause or she has been living separately by mutual consent. Undoubtedly, the Principal Judge, Family Court, Meerut has passed an order of maintenance allowance on the basis of mutual consent which is not indicative of fact that she has been living separately by mutual consent. In the result the maintenance allowance awarded by the court below cannot be refused in the light of provisions of Section 125(4) Code of Criminal Procedure

On behalf of the revisionist an affidavit has been filed in this revision to this effect that the court below has fixed the income as Rs. 15,000/- per month, while the revisionist has filed his pay slip relating to November, 2004 which goes to show his total income Rs. 7,113/- per month and the pay slip of January, 2008 shows that his income is Rs. 9,165/-after deduction. These pay slips have been issued by the department concerned in which the revisionist has been serving and thus the learned court below has recorded a perverse finding on this point. I agree with the contentions of the learned Counsel for the revisionist that since Respondent No. 1 has not filed any counter affidavit to repel above allegations made in the affidavit of Jitendra on behalf of the revisionist. Thus in view of pay slips issued by the department the income of the revisionist is found Rs. 9,165/- per month in January, 2008. In view of this fact the enhancement of maintenance allowance made by the court below appears to be unjust and unreasonable looking to the above income of the revisionist. Under these circumstances it would be just and proper to enhance maintenance allowance from Rs. 500/-to Rs. 1000/- per month for Respondent No. 1 and Rs. 1000/- per month each for her two children. Consequently this revision deserves to be partly allowed accordingly.

Thus this revision is partly allowed and the judgment and order dated 30.1.2008 passed by the court below is modified to this extent that Respondent No. 1 will be entitled to get Rs. 1000/- per month as maintenance allowance and her two children would be entitled to get Rs. 1000/- per month each till their age of maturity with effect from the order dated 30.1.2008.