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CHHOTU SINGH & ANR. Vs. SMT. RAMDINI

Judgements favoring men

 
Court:RAJASTHAN HIGH COURT

Bench: JUSTICE Sunil Kumar Garg

CHHOTU SINGH & ANR. Vs. SMT. RAMDINI On 19 March 2002

Law Point: Increased amount of maintenance shall be taken from the date of passing of order and not from date of application.

 

 

JUDGEMENT

 

This revision petition has been filed by the petitioners against the order dated 29.3.2001 passed by the learned Judge, Family Court, Jodhpur in Case No. 81/1994 by which he partly accepted the application filed by the respondent under Section 127, Cr.P.C. for enhancement of the maintenance allowance awarded to the respondent earlier vide order dated 29.4.1985 and enhanced the amount of maintenance to be paid by petitioner No. 2 from Rs. 100/- to Rs. 300/-.

2. The facts giving rise to this revision petition are as follows :

(i) The respondent-wife filed an application under Section 127, Cr.P.C. in the Court of Judge, Family Court, Jodhpur on 23.5.1994 stating that vide order dated 29.4.1985 passed by the Judicial Magistrate No. 5, Jodhpur, she was awarded Rs. 400/- per month as maintenance and out of Rs. 400/-, Rs. 300/- were to be paid to her by the petitioner Chhotu Singh, who is her husband and Rs. 100/- were to be paid by petitioner No. 2 Om Prakash who is her son.

3. Aggrieved from the order dated 29.4.1985, the present petitioners preferred a revision before the Sessions Judge, Jodhpur which was transferred to the Court of Additional Sessions Judge, No. 1, Jodhpur who vide his judgment dated 29.6.1986 accepted the revision petition filed by the petitioners partly and allowed maintenance of Rs. 200/- in place of Rs. 300/- to be paid to respondent-wife by her husband petitioner No. 1 and order of paying maintenance of Rs. 100/- per month by petitioner No. 2 was maintained. Thus, in total Rs. 300/- were ordered to be paid by the present petitioners.

4. The respondent filed an application on 23.5.1994 under Section 127, Cr.P.C. before the learned Judge, Family Court, Jodhpur stating that during 10 to 12 years passage had increased, therefore, the amount of Rs. 300/- was not sufficient and, therefore, it was prayed that this may be increased from Rs. 300/- to 700/-.

5. Reply to that application was filed by the present petitioners on 7.3.1995 and they submitted that they were not in a position to pay more.

6. In the Family Court, the respondent examined herself as P.W. 1 and two more witnesses were also produced by her and in rebuttal present petitioners examined themselves and one more witness Smt. Kanta.

7. The learned Judge, Family Court came to the conclusion that so far as enhancement of allowance by the petitioner Chhotu Singh who is husband of respondent is concerned, since that man had retired and he was not getting any pension and he was an old man and was not in a position to work, therefore, the application for enhancement against him (Chhotu Singh) husband of the respondent, was rejected. But the learned Judge, Family Court came to the conclusion that so far as petitioner No. 2 Om Prakash is concerned, the learned Judge, Family Court enhanced the amount of maintenance from Rs. 100/- to Rs. 300/- to be paid by petitioner No. 2 with effect from 23.5.1994, the date on which the application was filed by the respondent under Section 127, Cr.P.C.

8. Aggrieved from the order dated 29.3.2001, this revision petition has been filed by the present petitioners.

9. In this revision petition, it has been submitted that the order dated 29.3.2001 is erroneous one as even the petitioner No. 2 Om Prakash who is the son of respondent is not in a capacity to pay more as he himself has four children and he has to maintain them and he is a peon, therefore, the order dated 29.3.2001 be set aside and furthermore, it was submitted that this amount was allowed with effect from 23.5.1994 and actually it should have been allowed from the date of passing of order i.e. with effect from 29.3.2001 and, therefore, this order is illegal and deserves to be set aside.

10. I have heard both.

(1) Section 127, Cr.P.C. makes a provision for alteration of allowance on the proof of change in the circumstances of the parties. On proof of 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 the case may be, the Magistrate may make such alteration in the allowance as he thinks fit.

(2) This Court is S.B. Criminal Revision Petition No. 576/2001, Rajkumar v. Smt. Shanta Bai, II (2002) DMC 368, decided on 14.2.2002, has held that Court can modify the order, but such order of alteration in allowance can be made from the date of order and not from the date of application.

8. The respondent is mother of petitioner No. 2 Om Prakash and he was ordered to pay Rs. 100/- as maintenance to her mother vide order dated 29.4.1985 and vide order dated 29.3.2001, he was ordered to pay Rs. 300/- per month as maintenance to her mother in place of Rs. 100/-.

(3) It may be stated here that the first order was passed in the year 1985 and second order was passed in the year 2001 i.e. after 16 years and during this period, prices of the essential commodities have increased substantially, therefore, this fact itself can be regarded as the circumstance which can compel the Court to make alteration in the order of granting maintenance. From this point of view, the order under challenge cannot be set aside. But the learned Judge, Family Court has committed illegality in granting this increased amount with effect from 23.5.1994, the date on which the application was filed. As held earlier, the increased amount can be granted from the date of order. Therefore, the date of granting increased amount shall be taken to be the date of passing of order and not from the date of application.
For the reasons mentioned above, this revision petition is partly allowed and the order dated 29.3.2001 passed by the learned Judge, Family Court is modified to the extent that the respondent will get increased amount with effect from 29.3.2001 in place of 23.5.1994.

The rest order dated 29.3.2001 is maintained.

Revision Petition partly allowed.

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