Sanjay Kumar vs Kavita Kumari And Anr

Sandeep Sharma, J

By way of instant petition filed under Section 482 Cr.PC., challenge has been laid to order dated 3.7.2019, passed by the learned Additional Sessions Judge-I, Kangra at Dharamshala in Criminal Revision No. 13-D/X/2015, affirming order dated 15.7.2019, passed by the learned Judicial Magistrate Ist Class-I, Dharamshala, District Kangra, H.P., whereby an application bearing Cr.MA No. 4-IV/2013, having been filed by the respondent-wife under Section 127 Cr.PC, for enhancement of maintenance came to be allowed.

Precisely, facts of the case as emerge from the record are that petitioner and respondent are husband and wife, however, on account of certain differences, they have been living separately for more than 15 years. Respondent-wife applied for maintenance under Section 125 Cr.PC in the Court of Judicial Magistrate Ist Class, Kangra at Dharamshala, who vide order dated 1.11.2006, having taken note of the fact that petitioner-husband was earning sum of Rs. 8910 p.m. on account of salary, proceeded to award Rs. 1000/- pm as maintenance to the respondent-wife. Aforesaid order dated 1.11.2016 was accepted by the petitioner-husband and at no point of time, he laid challenge to aforesaid order and as such, same has attained finality.

Since the petitioner-husband after passing of order dated 1.11.2006, became regular in service and started earning monthly salary to the tune of Rs.23,000/-, respondent-wife filed an application under Section 127 Cr.PC, praying therein enhancement of maintenance awarded in her favour under Section 125 Cr.PC. Respondent-wife claimed before the court below that since salary of her husband i.e. petitioner has increased many fold and there is substantial hike in prices, she is finding it difficult to sustain in the sum of Rs. 1000/- awarded in her favour by the court below. Learned trial Court on the basis of pleadings as well as other material adduced on record by the respective parties, proceeded to enhance the maintenance allowance from Rs.1000 /- to Rs. 10,000/- from the date of the order.

Being aggrieved and dissatisfied with order of enhancement passed by the learned trial Court below, petitioner-husband preferred Revision Petition under Section 397 of Cr.PC, in the court of learned Additional Sessions Judge-1, Kangra at Dharamshala, H.P., which was dismissed vide order dated 3.7.2019. In the aforesaid background, petitioner has approached this Court in the instant proceedings, praying therein to set-aside the order of enhancement of maintenance passed by the learned court below.

Mr. Y.P. Sood, learned counsel representing the petitioner vehemently argued that since no opportunity ever came to be afforded to the petitioner to dispute prayer of enhancement made by the petitioner, impugned order of enhancement of amount of maintenance deserves to be quashed and set-aside. While referring to Section 127 Cr.PC, Mr. Sood, vehemently argued that learned court below while ordering enhancement of maintenance ought to have afforded an opportunity to lead evidence to the petitioner to prove that there is no changed circumstance, which enables the respondent-wife to seek enhancement. Lastly, Mr. Sood, contended that mere pleadings adduced on record by the respondent could not have been made basis or relied upon by the courts below while enhancing the amount of maintenance awarded in favour of the respondent under Section 125 Cr.PC.

Having heard learned counsel for the parties and perused material available on record, this Court finds that there is no dispute inter-se parties that at the time of passing of order of maintenance under Section 125 Cr.PC., petitioner husband was drawing monthly salary to the tune of Rs.8910 pm. Court below having taken note of the fact that respondent is legally wedded wife of the petitioner and she has no independent source to maintain herself, proceeded to award Rs.1000/-pm as maintenance vide order dated 30.9.2010 in favour of the respondent-wife. Similarly, it is not in dispute that salary of the petitioner husband came to be enhanced from Rs. 8910 to Rs. 23000/- after passing of the order dated 30.9.2010 under Section 125 CrPC.

Mr. Sood, learned counsel representing the petitioner though argued that since there was no changed circumstance, prayer made on behalf of the respondent-wife for enhancement could not have been acceded to by the courts below, but once there is no dispute that salary of the petitioner husband was substantially increased after passing of order dated 30.9.2010, under Section 125 Cr.PC, respondent-wife rightly prayed for enhancement under changed circumstances. Order awarding sum of Rs. 1000/- as maintenance allowance was passed vide order dated 30.9.2010 and application for enhancement under Section 127 Cr.PC., came to be filed after two years of passing of aforesaid order, by which time, not only salary of the petitioner husband was increased substantially, but there was sharp rise/hike in the prices of essential commodities. Though material available on record reveals that petitioner apart from sum of Rs. 1000/- awarded in favour of the respondent-wife under Section 125 Cr.PC, is paying sum of Rs. 1500/-p.m. on account of rent under the Domestic Violence Act, but by no stretch of imagination, sum of Rs. 2500/- (Rs.1000 as maintenance + Rs.1500/- as rent), can be said to be sufficient for maintenance/sustenance of an individual, who has no other source of income. Sum of Rs. 1500 is/was being paid on account of rent, meaning thereby, respondent was left to sustain herself in a sum of Rs. 1000/- awarded in her favour under Section 125 Cr.PC. Since there is no dispute, rather stands admitted by the petitioner that he after having become regular as JBT is getting salary to the tune of Rs. 23,000/-, enhancement of maintenance allowance ordered by the court below cannot be said to be excessive or on higher side, especially, when there is nothing on record that petitioner apart from his wife is liable to support other family members.

Section 127 Cr.PC., clearly provides that on proof of change in the circumstances of any person, receiving, monthly allowance under Section 125 Cr.PC., a Magistrate can make such alteration as he thinks fit. Proof of change in terms of Section 127 Cr.PC is to be adduced on record by a person, seeking enhancement. Provisions contained under Section 127 Cr.PC, nowhere suggest that opportunity, if any, is required to be given to the opposite party to prove that there is no change in the circumstances of any person, rather change, if any, in circumstances, is to be ascertained by the court by seeing/examining proof of change rendered on record by the person seeking enhancement. In the case at hand, respondent-wife successfully proved on record that monthly salary of the petitioner has substantially increased from Rs. 8910 to Rs. 23000/-. Once factum with regard to increase in salary was never disputed by the petitioner, rather was admitted, there was no occasion, if any, for the court to provide an opportunity to the petitioner to demonstrate by way of evidence that there is no change in the circumstances. Increase in salary of a person responsible for providing maintenance is itself sufficient proof of changed circumstances of a person entitled to receive the maintenance under Section 125 Cr.PC. This Court cannot lose sight of the fact that nowadays one LPG cylinder costs approximately at Rs.1000/. Respondent besides requiring money for her food also requires reasonable amount for her personal needs i.e. medicines and cloths etc. Moreover, this Court finds that aforesaid plea of not having afforded an opportunity to the petitioner-husband never came to be raised by the petitioner in his revision petition filed before the learned Additional Sessions Judge, Kangra at Dharamshala and as such, same cannot be otherwise permitted to be raised in the instant proceedings filed under Section 482 Cr.PC, wherein this Court is only required to see whether order sought to be quashed, if permitted to sustain would meet ends of justice or same shall be abuse of the process of law.

During proceedings of the case learned counsel for the respondent made available latest salary certificate of the petitioner, perusal whereof reveals that at present, net pay of the petitioner is Rs. 46431/ - and as such, enhancement ordered by the courts below cannot be said to be excessive.

Consequently, in view of the discussion made herein above, this Court finds no illegality and infirmity in the impugned order passed by the court below and as such same are upheld. Accordingly, instant petition is dismissed being devoid of any merits. All pending applications are disposed of.