M/s. Trishul Construction vs State of M.P., & Ors.

The applicant has preferred this revision being aggrieved by the order dated 06.04.2016 passed by the Principal Judge, Family Court, Shivpuri in Miscellaneous Criminal Case No. 142/2015, whereby the Family Court has partly allowed the application filed by the non-applicant - Smt. Khurshid Begam under Section 127 of Cr.P.C. and enhanced the maintenance amount from Rs.300/- to Rs.5,000/- per month.

Facts, in brief, are that the non-applicant had filed an application on 11.07.1985 under Section 127 of Cr.P.C. for grant of maintenance before the JMFC, Shivpuri. Vide order dated 01.03.1989, the JMFC, Shivpuri has allowed the said application and a sum of Rs.300/- has been awarded to the non-applicant for her maintenance. Thereafter on 24.09.2014 the non-applicant filed an application under Section 127 of Cr.P.C. before the JMFC, Shivpuri on the ground that the maintenance of Rs.300/- is the only source of her income, which was ordered to be paid per month to her wayback in the year 1989 and she has been receiving that amount for the last 26 years and hence, a prayer was made before the JMFC to enhance the amount from Rs.300/- to Rs.10,000/- per month. The matter was ordered to be transferred to the Family Court, Shivpuri, which has partly allowed the application enhancing the maintenance amount from Rs.300/- to Rs.5,000/-.

Learned counsel for the applicant submits that the impugned order passed by the learned Family Court is against the settled proposition of law relating to the maintenance. Learned Family Court has not considered the fact that for the last 25 years, the non-applicant has been maintaining herself who has three children, whereas the applicant is 80 years old person and he is a pensioner, whereas the non-applicant has recently, vide sale deed Ex. D-1, received an amount of Rs.20,90,000/-. Therefore, there is no question of enhancement of maintenance to the non-applicant because she has enough means to maintain herself. Thus, the impugned order is liable to be set aside.

Learned counsel for the non-applicant supported the impugned order and submitted that the learned trial Court has rightly taken the judicial notice of present inflation rate and also rightly observed that it is not possible for the present non-applicant to maintain herself at Rs.300/- only. Therefore, he prays for dismissal of this revision petition.

After carefully considering the rival contentions raised by the parties and on perusal of the records, it emerges that the prerequisite of exercising the discretion under Section 127 of Cr.P.C. has not been satisfied which renders the impugned order dated 06.04.2016 vulnerable for adjudication of the facts of the instant case. For ready reference, Section 127 of Cr.P.C. reads as under:-

"127. Alteration in allowance-

(1) On proof of a change in the circumstances of any person, receiving, under section 125 a monthly allowance, or ordered under the same section to pay a monthly allowance to his wife, child, father or mother, as case may be, the Magistrate may make such alteration in the allowance he thinks fit: Provided that if he increases the allowance, the monthly rate of five hundred rupees in the whole shall not be exceeded.

(2) Where it appears to the Magistrate that, in consequence of any decision of a competent Civil Court, any order made under section 125 should be cancelled or varied, he shall cancel the order or, as the case may be, vary the same accordingly.

(3) Where any order has been made under section 125 in favour of a woman who has been divorced by, or has obtained a divorce from, her husband, the Magistrate shall, if he is satisfied that-

(a) the woman has, after the date of such divorce, remarried, cancel such order as from the date of her remarriage;

(b) the woman has been divorced by her husband and that she has received, whether before or after the date of the said order, the whole of the sum which, under any customary or personal law applicable to the parties, was payable on such divorce, cancel such order,-

(i) in the case where, such sum was paid before such order, from the date on Which such order was made,

(ii) in any other case, from the date of expiry of the period, if any, for which maintenance has been actually paid by the husband by the woman;

(c) the woman has obtained a divorce from her husband and that she had voluntarily surrendered her rights to maintenance after her divorce, cancel the order from the date thereof.

(4) At the time of making any decree for the recovery of any maintenance or dowry by any person, to whom a monthly allowance has been ordered to be paid under section 125, the Civil Court shall take into account the sum which has been paid to, or recovered by, such person as monthly allowance in pursuance of the said order."

The opening sentence of the reproduced provision makes it clear that the discretion given to the Court is circumscribed by the obligation of the non-applicant moving application under Section 127 of Cr.P.C. to discharge the burden of proving the change in circumstances while leading evidence.

In the given facts and circumstances of the present case, the said obligation has not been discharged by the present non- applicant. Here in this context, it is appropriate to observe that the present non-applicant herein did not produce any document to show the income of the husband. The present applicant Abdul Aziz, who is aged about 80 years, has stated in his examination that he has retired from the post of Patwari in the year 1990. He admitted that he is getting pension of Rs.10,000/-. The present non-applicant Khurshid Begum stated that the present applicant is earning Rs.15,000/- per month as pension but no document has been filed to substantiate this plea. Present non-applicant Khurshid Begum affirmed in her cross-examination that she has executed a sale deed and received Rs.20,90,000/-. It is shown that the non-applicant has enough source of income. The applicant is aged about 80 years and he admits that the non-applicant has three sons. Although she has denied this fact that she is living with her sons but she admits that she has come with her son Abdul Shamad. So it cannot be ignored that the non-applicant has been maintaining herself through her major sons otherwise she would not have awaited for 25 years to file the application for enhancement of the maintenance amount but looking to the fact that the present applicant is the husband of the present non-applicant, he is liable to maintain his wife and in the maintenance amount of Rs.300/-, which was allowed in 1989, it is not possible for anybody to maintain in that meager amount, therefore, the maintenance amount is enhanced from Rs.300/- to Rs.1500/- per month.

Having regard the aforesaid contentions and facts of the case, the Court is of the opinion that the instant revision deserves to be partly allowed. Consequently, the revision filed by the applicant - Abdul Aziz Khan is allowed in part and the impugned order of family court is hereby modified and it is directed that the applicant shall pay Rs.1500/- per month to the non-applicant from the date of filing of the application, i.e., 24.09.2014.