Md. Aslam Ansari vs State of Jharkhand and Another

Rakesh Ranjan Prasad, J.—Heard learned Counsel appearing for the petitioner. Over an application filed u/s 125, Cr.P.C. on behalf of the

opposite party No. 2, a sum of Rs. 600 was awarded vide order dated 21.8.2006 passed in M-79/04 to the opposite party No. 2 to be paid by

the petitioner, as maintenance. In the year 2008, an application was filed u/s 127(1), Cr.P.C. stating therein that the opposite party No. 2 has

grown older and has developed several kinds of diseases, as a result of which, a sum of Rs. 600 proves to be inadequate for her livelihood. On

such application, without there being any evidence with respect to increase in income of the petitioner, an order was passed enhancing the amount

of maintenance from Rs. 600 to Rs. 2,500 per month, on the ground that by the passage of time of two years, there has been price escalation. That

order was challenged before revisional Court and the revisional Court vide order dated 8.4.2009, affirmed the order passed by learned Magistrate

u/s 127, Cr.P.C. Those orders are under challenged.

Mr. N.K. Prasad, learned Counsel appearing for the petitioner submits that the opposite party No. 2 had been awarded maintenance of Rs.

600 per month in the year 2006, but the same was enhanced to Rs. 2,500 in the year 2008, without there being any evidence to the effect that

there has been increased in the income of this petitioner, as such order passed u/s 127, Cr.P.C. suffers from illegality. This aspect of the matter

was also not considered by the revisional Court and, therefore, both the orders are fit to be set aside.

Admittedly, the amount of maintenance of Rs. 600 was enhanced to Rs. 2,500 per month, without there being any evidence of increase in the

income of the petitioner. Enhancement was made, taking into account the fact that by the passage of time, there has been escalation in the price of

things.

It appears that income of the petitioner was taken into account while initial order of maintenance was passed. At that time, as it appears from the

record that the petitioner had been earning Rs. 10,000 per month and was getting Rs. 5,000 per month towards pension on account of being Ex-

serviceman. In course of hearing, it was admitted that there had been increase in pension on account of release of the Dearness Allowance twice in

a year @ 8%. Keeping in view that aspect of the matter, the petitioner must have been getting more pension in the year 2008, when the amount of

maintenance was enhanced.

However, keeping in view rate at which Dearness Allowance was increased, a sum of Rs. 1,000 per month would have been sufficient for the

opposite party No. 2 as maintenance.

Accordingly, orders dated 26.11.2008 and 8.4.2009 are modified to the extent indicated above. Thus, the opposite party No. 2 is entitled to

have maintenance at the rate of Rs. 1,000 per month w.e.f. 26.11.2008. Accordingly, this application stands disposed of.