Tilak Raj vs Renu Sharma And Another

Vivek Singh Thakur, J

This Revision Petition has been preferred by Tilak Raj, who is father of respondent No. 2 Era Sharma, against order dated 30.11.2023 passed in Petition under Section 127 of Code of Criminal Procedure (for short "Cr.P.C") in Case No. 57 of 2020, titled as Era Sharma Vs. Tilak Raj passed by Principal Judge (Family Court) Shimla, District Shimla, H.P., whereby maintenance awarded in favour of Era Sharma at the rate of ₹1,500/- per month has been enhanced to ₹2,000/- per month from the date of filing the petition i.e. 18.12.2020.

First of all it is noticeable that Revision Petition has been preferred against respondent No. 1 Renu Sharma and respondent No. 2 Era Sharma, whereas marriage between Tilak Raj and Renu Sharma has been dissolved by decree of divorce passed with mutual consent vide judgment and decree dated 9.3.2020 passed by District Judge (Family Court), Shimla in a petition filed under Section 13 (B) of the Hindu Marriage Act, 1955 for dissolution of marriage by way of mutual consent.

Petition for enhancement of maintenance amount was filed by Era Sharma through her natural guardian Renu Sharma. In aforesaid facts present Revision Petition was maintainable only against respondent No. 2 Era Sharma, but not against respondent No. 1 Renu Sharma who was not party in proceedings before Trial Court, and thus her impleadment as respondent No.1 is mis-joinder of party.

Though numerous grounds have been taken in Revision Petition for assailing the impugned order dated 30.11.2023, however, learned counsel for the petitioner has pressed only ground by submitting that petitioner is not against payment of maintenance, even enhanced maintenance to his daughter Era Sharma, but the impugned order, passed by Family Court, is an order passed without jurisdiction and, therefore, it is not sustainable.

It has been argued by learned counsel for the petitioner that respondent No. 2 through respondent No. 1 had preferred a petition under Sections 125 and 127 of Cr.P.C. for enhancement of maintenance amount, whereas no maintenance amount was awarded in favour of respondent No. 2 Era Sharma under Section 125 Cr.P.C., but the amount of maintenance was awarded to respondent No. 2 Era Sharma on the basis of compromise arrived at between the petitioner and respondent No. 1 for dissolution of marriage on the basis of which their marriage was dissolved vide judgment and decree dated 9.3.2020 with direction to the petitioner to pay maintenance amount at the rate of ₹1,500/- per month to respondent No. 2, Era Sharma, who was in care and custody of her mother Renu Sharma and it was decreed that parties i.e. petitioner and respondent No. 1 shall bound by their statements which shall form part of the decree.

In aforesaid facts, it has been contended that issue of maintenance payable to respondent No. 2, has attained finality, where Family Court has awarded ₹1,500/- per month maintenance in favour of respondent No. 2 Era Sharma, but without any clause of enhancement of the said amount at subsequent times and, therefore, petition for enhancement was not maintainable on this count.

It has been further submitted that when there is no amount awarded under Sections 125 and 127 of Cr.P.C., there was no question of enhancement by filing petition under Sections 125 and 127 Cr.P.C. for enhancement of the same.

Learned counsel for the respondents has submitted that a petition under Section 125 Cr.P.C. had also been filed by Era Sharma and Renu Sharma, which was disposed of on 14.9.2019 by Lok Adalat on account of compromise being arrived at between the parties. It has been stated that what was communicated before the Lok Adalat, was re-iterated by learned Sessions Judge (Family Court) in his order dated 5.9.2019 as under:-

"... I have further interacted with the parties in order to explore possibility of conciliation and pursuant to interaction the matter stood settled and the parties expressed their intention to seek divorce by way of mutual consent. The respondent agreed to pay permanent alimony of Rs.12,00,000/- to the petitioner No. 1 and monthly maintenance of Rs.1500/- to the petitioner No. 2. Pursuant to such settlement, the petitioner No. 1 stated on her behalf as well as on behalf of the minor respondent No. 2 being mother and natural guardian that petition is withdrawn. Petitioner No. 1 is identified by Sh. Varun Vashisht, Advocate. Matter is ordered to be listed in the National Lok Adalat on 14.09.2019."

On the basis of aforesaid agreement, petition filed under Section 125 Cr.P.C. preferred by Renu Sharma and Era Sharma, bearing Case No. 57/2019/2015, titled as Renu Sharma & Another Vs. Tilak Raj, was dismissed as withdrawn in National Lok Adalat, in terms of compromise arrived at between the parties.

From the aforesaid facts, it is evident that petition under Section 125 Cr.P.C. was preferred on behalf of Era Sharma, which was disposed of for agreement between her parents, whereby petitioner had agreed to pay ₹1,500/- per month maintenance to his daughter Era Sharma.

During pendency of present Petition, as permitted by Co-ordinate Division Bench vide order dated 31.10.2025, respondent had placed on record copy of petition preferred under Section 125 Cr.P.C and orders dated 9.8.2019, 27.8.2019 and 5.9.2019 passed by the Family Court and order dated 14.9.2019 passed in the Lok Adalat and these documents clearly indicate that petition was preferred on behalf of Era Sharma for maintenance, which was disposed of in terms of mutual understanding arrived at between the parties.

We are of the considered opinion that though amount of monthly maintenance at the rate of ₹1,500/- was awarded in the judgment and decree passed for dissolution of marriage between the petitioner and respondent No. 1, however, it is a matter of fact that petition under Section 125 Cr.PC was disposed of on the basis of said compromise, though stating that it was dismissed as withdrawn.

Infact the petition was disposed of in terms of compromise arrived at between the parties. Therefore, ₹1,500/- per month maintenance, ordered to be paid by petitioner to his daughter Era Sharma in judgment and decree dated 9.3.2020, was made basis for disposal of petition under Section 125 Cr.P.C. and, therefore, it has to be deemed to have been passed in a petition under Section 125 Cr.P.C. In aforesaid facts, petition under Sections 125 and 127 of Cr.P.C. for enhancement was and is maintainable.

Even if a worst case is taken that petition under Section 125 Cr.P.C. was dismissed as withdrawn and no amount was awarded under Section 125 Cr.P.C., thus also, Era Sharma was not precluded from filing petition under Section 125 Cr.P.C. for maintenance, independent of amount awarded in the judgment and decree for dissolution of marriage of her parents with mutual consent and at the time of determining quantum under Section 125 Cr.P.C. the amount of maintenance awarded vide judgment and decree dated 9.3.2020 was definitely to be taken into consideration and, therefore, Family Court was not precluded from passing fresh order of maintenance under Section 125 Cr.P.C., after taking into consideration the monthly maintenance already awarded in favour of Era Sharma.

Family Court has rightly used the word enhancement of compensation amount for the reasons that ₹1,500/- per month maintenance was already granted in favour of Era Sharma and thus any maintenance more than that, to be awarded even under Section 125 Cr.P.C., is to be determined by taking into consideration maintenance amount of ₹1,500/- per month, already awarded in favour of Era Sharma and, therefore, any addition of amount of maintenance would be termed as enhancement of maintenance amount.

Petition preferred by respondent Era Sharma for enhancement of maintenance amount, either treating as a fresh petition under Section 125 Cr.P.C., for the reason that earlier petition filed under Section 125 Cr.P.C. was withdrawn or treating it a petition for enhancement under Section 127 Cr.P.C. in continuation of earlier petition under Section 125 Cr.P.C., both ways was and is maintainable. In case it is to be treated under Section 125 Cr.P.C. then also there is no merit in present Revision Petition and if it is considered to be filed under Section 127 Cr.P.C., in continuation of earlier petition filed under Section 125 Cr.P.C., respondent Era Sharma had and has a right to file and maintain the petition for enhancement even it is considered that in earlier petition under Section 125 Cr.P.C. zero amount was awarded, because there would be no remedy to daughter to enhance maintenance awarded in decree of divorce between her parents wherein she was not even party.

A person eligible for maintenance under Section 125 Cr.P.C. is not precluded from filing subsequent petition under Section 125 Cr.P.C. after withdrawal of the first petition. At the most, such person can be held dis-entitled for amount of maintenance, for the period for which maintenance was claimed in the earlier petition preferred under Section 125 Cr.P.C. for dismissal of said petition as withdrawn.

It is also apt to notice that it was claim of the petitioner that he was jobless, but in cross-examination he has admitted that he has got a job in July-August, 2021. He has also claimed that he has to look after his parents and to maintain them, but in his cross-examination he has categorically admitted that his father was a retiree from Animal Husbandry Department as Junior Assistant and expenditure of medicines of his parents is reimbursed by the Government of Himachal Pradesh.

As previous petition filed under Section 125 Cr.P.C. was dismissed as withdrawn on account of compromise between the parties, therefore, for further enhancement, petition under Section 127 Cr.P.C. was and is maintainable.

Plea of the petitioner that once amount of maintenance was determined in the compromise on the basis of which marriage was dissolved and the said condition of payment of maintenance at the rate of ₹1,500/- per month was part of that judgment and decree, then respondent had no right to file a petition for enhancement, is misconceived.

The compromise between the parents was arrived at when respondent No.2 Era Sharma was minor and her right to claim maintenance or enhancement of maintenance, cannot be curtailed only on the basis of mutual agreement arrived at between her parents at the time of divorce. Era Sharma has a right to get the maintenance altered which was and has been ordered to be paid to her in judgment and decree dated 9.3.2020.

It is also apt to adjudicate issue raised by petitioner as to whether after agreeing for maintenance amount of ₹1,500/- per month at the time of dissolution of marriage, by the mother on behalf of minor, can be said the final agreement between the parties for all times to come. In our considered opinion the answer is no. In changed circumstances, daughter, receiving maintenance amount from her father, is entitled for enhancement thereof, depending upon the facts and circumstances and increasing expenses to have basic amenities. It would be a hypertechnic view if claim of respondent Era Sharma for enhancement of maintenance amount is rejected on technical ground which, otherwise, in view of discussion hereinbefore, has been rightly enhanced by the Family Court by entertaining the application preferred by daughter.

Being minor, Era Sharma was not capable to enter into an agreement, however, her parents had entered into agreement on the basis of mutual consent between them and they determined the monthly maintenance payable to respondent No. 2 at the rate of ₹1,500/- per month. Respondent No. 2 has every right to file petition for enhancement of said amount. The amount was awarded in the year 2020 and we are in 2026, and monthly maintenance amount of ₹1,500/- is a meager amount, and being father of respondent No. 2 Era Sharma, petitioner cannot be shirked from his responsibility to maintain his daughter. Rights of a minor cannot be curtailed on the basis of agreement arrived at between parents of the said child. The amount of ₹1,500/- was awarded in the year 2020 and enhancement was also ordered in the same year, however, now we are in 2026 and ₹2,000/- is a meager amount and thus enhancement of monthly maintenance amount from ₹1,500/- to ₹2,000/- is reasonable and justified.

In view of above discussion, we do not find any merit in the petition and accordingly, the same is dismissed including miscellaneous application(s), if any. Record of the Trial court be sent back forthwith.