Sangita W/O Rameshwar Daspute vs Rameshwar S/O Shrimantrao Daspute

Heard. Rule. The Rule is made returnable forthwith. The learned advocate for the respondent waives service. With the consent of both

the sides the matter is heard finally.

This is a revision preferred by the wife being aggrieved and dissatisfied by the inadequacy of the increment granted by the Judge of the Family

Court under Section 127 of the Cr.P.C. and also being aggrieved by the direction of the learned Judge in making it effective from the date of the order

and not from the date of the application.

The learned advocate for the applicant vehemently submits that the respondent inspite of having an opportunity to lead evidence has not come out

with a fair disclosure about his exact income. He has been dealing in properties. Even a land has been purchased by him in the name of his

mother for lakhs of rupees which he could not have if he was not having sufficient income. She would point out that he also has agricultural land but

has conveniently omitted from disclosing even his income from the land. The learned Judge has taken note of all the pieces of evidence in the form

of revenue record of the agricultural land, his visiting card showing his occupation to be an estate agent, a photograph displayed on a property

mentioning that it belongs to his father. The learned Judge also noted that the respondent had not controverted all these facts and even the Judge

was alive and rightly drew adverse inference against him about his income but still only a meager amount of Rs.800/Â per month has been awarded

by way of enhancement increasing the maintenance of Rs.1200/Â​ per month to Rs.2000/Â​ per month.

The learned advocate would further point out that without assigning any reason under SubÂSection 2 of Section 125 of the Cr.P.C. the learned

Judge has given effect to such increase in the maintenance only from the date of the order when she ought to have awarded it from the date of the

application. The observations and the conclusions of the learned Judge in determining the quantum of the increment and in making it operational

from the date of the order is perverse, arbitrary and capricious and this Court should intervene under the revisional jurisdiction.

The learned advocate for the respondent submits that after taking into consideration all the facts and circumstances and evidence, the learned Judge

has arrived at the figure regarding enhanced maintenance and has rightly made it effective from the date of the order pursuant to the judgment of the

Supreme Court in the case of Suman Narayan Niphade & Anr. V/s. Narayan Sitaram Niphade & Anr; 1995 Supp (4) SCC 243. There is no

apparent perversity or arbitrariness. The discretion exercised by the learned Judge is judicious and this Court cannot intervene under Section 397 read

with Section 401 of the Cr.P.C.

Needles to state that since the respondentÂhusband has not been impugning the judgment and the order passed by the learned Family Court Judge,

the present inquiry needs to be restricted to ascertain if the quantum of increment determined by the learned Judge and the order directing it to be

made effective from the date of the order can be said to be either perverse, arbitrary or capricious so as to vest this Court with jurisdiction under

Section 397 of the Cr.P.C.

Taking up the issue of quantum, it is apparent that the first order awarding maintenance to the applicant under Section 125 of the Cr.P.C. was

passed on 26.07.2008 when by virtue of a compromise maintenance was fixed @ Rs.700/Â per month. In a proceeding instituted under Section 127 in

the year 2010, it was enhanced to Rs. 1200/ w.e.f. 05.01.2012. It is now after two years from the last enhancement the present application has

been moved in the year 2012 seeking further enhancement under Section 127.  Bearing in mind these aspect, it is quite clear that the applicant has

sought enhanced compensation within two years from the earlier increment.

Bearing in mind the above aspects if one examines the evidence, all the sources of income which the respondent had continued to be the same.Â

The agricultural land was already there. There is no material to show that he had purchased any additional agricultural land in the intervening

period. Even on the earlier occasion his occupation as an estate agent was the same. Besides, though it is stated now that he had purchased

property in the name of his mother even that saleÂdeed has taken place on 19.10.2010 i.e. prior to the date of the earlier proceeding for increasing

maintenance under Section 127 which was decided on 05.01.2012, meaning thereby that all these facts and circumstances were even obtaining as it is

when the earlier increment was granted on 05.01.2012.

If such is the state of affairs, even by drawing adverse inference as has been drawn by the learned Judge of the Family Court there is no cogent

and reliable material to suggest that the income of the respondent has considerably increased during the period of two years next before the filing of

the present application, from the date when he was directed to pay the enhanced maintenance by the order dated 05.01.2004.

Considering all these aspects, the observations and the conclusions drawn by the Family Court Judge increasing the maintenance from Rs.1200/Â‐

per month to Rs.2000/Â​ per month by no stretch of imagination can be said to be either perverse, arbitrary or capricious.

Now coming to the point of the effective date for the enhanced maintenance, the order passed by the learned Judge is devoid of any reason as to

why its operation was restricted to the date of the order and not made operational from the date of the application. The learned Judge has simply

referred to the decision in the case of Suman Narayan Niphade (supra). However it is quite clear that the learned Judge has clearly misunderstood

the observations and the conclusions of the Supreme Court. A careful reading of the order would clearly show that it has been specifically laid

down that it lies in the discretion of the Magistrate whether to grant the maintenance from the date of the order or from the date of the application,Â

in view of SubÂSection 2 of Section 125 of the Cr.P.C. Meaning thereby that it nowhere lays down any ratio that in no case Magistrate should

award maintenance from the date of the application. Reading of the judgment of the Supreme Court by the learned Judge is clearly faulty.

In this regard it is also necessary to note that there is no provision under Section 127 of the Cr.P.C. like the one under SubÂSection 2 of Section

125 of the Cr.P.C. which requires a Magistrate to specify the date for operation of the order of enhanced maintenance. Be that as it may, assuming

that the provision of SubÂsection 2 of Section 125 of the Cr.P.C. even governs / regulates the powers of the Magistrate under Section 127 fo the

Cr.P.C., still it is apparent that the discretion has to be exercised judiciously and not arbitrarily. In other words, the Magistrate must demonstrate

objectively as to why in any case he is directing the enhanced maintenance to be made payable either from the date of the application or from the date

of the order. This is where the learned Judge of the Family Court seems to have committed an error in not appreciating the law laid down by the

Supreme Court in the case of Suman Narayan Niphade (supra) and by simply referring it, has made the enhanced maintenance operational from the

date of the order.

Considering the fact that the applicant had sought enhanced maintenance after couple of years, taking note of the fact that the cost of living must

have gone up during the intervening period, the propriety demanded that the enhanced maintenance ought to have been awarded from the date of the

application i.e. 20.03.2014 rather than from the date of the order i.e. 12.01.2017, particularly when, there is no evidence that anybody else was

dependent on the respondent and his liability had increased in the intervening period. To this extent the observations and the conclusions of the

learned Judge of the Family Court is indeed perverse, arbitrary and capricious and needs to be interfered with.

The revision application is partly allowed.

The revision to the extent of challenge to the quantum of enhanced maintenance granted by the Judge of the Family Court is rejected.

However, the impugned judgment and order directing the enhanced maintenance to be paid from the date of the order is quashed and set aside and

instead it is directed that it shall be paid from the date of the application i.e. 20.03.2014.

The rule is made absolute in above terms.