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Husband progressing Father and Brother – No encouragement in maintenance

Punjab and Haryana High Court

Decided On May-13-1994
Case Number Criminal Misc. No. 5174 of 1992
Judge J.B. Garg, J.

PARMANAND MISHRA
Vs.
REKHA MISHRA On 13 May 1994

JUDGEMENT

1. This petition underneath Section 482 review with Article 227 of a Constitution of India has been filed by a postulant impugning a sequence antiquated 23.11.2011 vide that a schooled Judge, Family Court, Dwarka extended a upkeep awarded to her in a record underneath Section 125, Cr.P.C. from Rs. 1,000 to Rs. 2,000 per month. The postulant feeling discontented with this enhancement, is claiming that a upkeep be increasing from Rs. 1,000 to Rs. 10.000.

2. It is certified box of a parties that they got married on 22.6.1978 as per Hindu rites and ceremonies. It is also not in brawl that within a few days of a matrimony a postulant left a matrimonial home and started vital separately. The means of withdrawal matrimonial home, as per petitioner, is nuisance on comment of dowry from a really second day of a matrimony and she being thrown out of a matrimonial home due to her nauseous demeanour and also since a respondent wanted to marry her younger sister.

3. As per a respondent, means of withdrawal a matrimonial home by a postulant was conjunction her looks nor any nuisance on comment of dowry demand. The respondent is carrying white rags on his skin, a illness famous as leucoderma. The postulant on saying a white rags on his physique forlorn him by withdrawal a matrimonial home within a few days of a matrimony and never returned thereafter.

4. Whatever might be a means of withdrawal a matrimonial home by a petitioner, a fact stays that after a postulant left a matrimonial home in July, 1978, a parties are vital alone and for 11 years they were vital as such though any litigation. However, on 23.9.1989, a respondent filed a divorce petition that was liberated and immediately afterward on 1.11.1989 a postulant filed a petition underneath Section 125, Cr.P.C. claiming upkeep from a husband. Vide sequence antiquated 24.10.2002 upheld by a schooled Metropolitan Magistrate, a postulant was awarded monthly upkeep to a balance of Rs. 1,500. The pronounced sequence awarding upkeep was impugned by a respondent before a Court of Sessions and a schooled Addl. Sessions Judge vide sequence antiquated 28.1.2004 reduced a monthly upkeep from Rs. 1,500 to Rs. 1,000.

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5. Thereafter, a postulant filed an focus underneath Section 127, Cr.P.C. on 19.3.2010 seeking encouragement of a monthly maintenance. The schooled Judge, Family Court, Dwarka vide a impugned order, after deliberation a income of a parties and a element accessible on record, doubled a volume of upkeep i.e. from Rs. 1,000 to Rs. 2,000 per month, that is now being deliberate a really small volume by a postulant for her survival. Hence fundamental powers of this Court have been invoked to get a encouragement of a upkeep from Rs. 1,000 to Rs. 10,000 per month.

6. The encouragement has been sought essentially on a belligerent that she is entitled to have 1/3rd income of a respondent as upkeep to have same kind of vital standard.

7. Since conjunction a attribute is in brawl nor a respondent disowns his shortcoming to compensate a upkeep awarded to a petitioner, a genuine emanate is a quantum of maintenance. Undisputedly, for 11 years a postulant never deliberate herself to be vacant in need of any upkeep from a respondent who was portion in Delhi Police even during that time. The income of a parties is also not in brawl for a reason that a postulant is operative in Anganwadi Centre and as per a certificate antiquated 1.3.2012 placed on record by her, she is receiving Rs. 4,000 per month as honorarium. During a record before a endangered Family Court, a income trip of a respondent was valid by PW-2 ASI Ratan Singh that shows a sum income of a respondent Rs. 28,664 per month. It is a box of a respondent that detached from progressing himself, shortcoming to take caring of his aged father and younger hermit is also on his shoulder. On a other hand, a postulant has no shortcoming on her shoulders. Apart from deductions towards Income Tax and on other counts, he is also contributing towards GPF and shortcoming to do amicable obligations is also on his shoulder since of inability of his father to do a same and younger hermit being not formally employed

8. In Chandni Sharma v. Gopal Dutt Sharma, III (2011) DLT (Crl.) 121=2011 (V) AD 493 (Del.), after deliberation a preference of Apex Court, a criteria to be deliberate by a Court while enhancing a upkeep was deliberate and celebrated as under:

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“As celebrated in a preference of a Supreme Court in a box of Jasbir Kaur Sehgal v. District Judge, Dehradun and Others, (1997) 7 SCC 7: AIR 1997 SC 3397, it is staid law that no set regulation can be laid down for regulating a volume of upkeep payable and a calculation of a same would always count on a contribution and resources of any case.”

9. In a box Sheo Brat v. State of U.P. Anr., 2012 (I) AD 451, matching emanate was endangered and dealt with as under:

“9. Indisputably a law is dictated to strengthen a vacant and tormented women and any firm interpretation stopping a march of probity goes opposite a legislative intent. This appears to be a goal of authority by omission a difference of limitation, so distant as a volume is concerned. By a Code of Criminal Procedure (Amendment) Act, 2001 (Central Act 50 of 2001) a difference ‘not surpassing Rs. 500 in a whole have been wanting w.e.f. 24.9.2001’. In a benefaction case, it is not in brawl that when a explain petition was filed, Rs. 500 was claimed as upkeep as that was a limit volume that could have been postulated since of unamended Section 125, Cr.P.C. though presently, there is no such reduction in perspective of a amendment as referred to above.

10. Learned Counsel appearing for a revisionist vehemently argued that there was no amendment done to a explain petition seeking enhancement, nonetheless a Court had extended a quantum of upkeep to a sum of Rs. 1,000 per month. we find that this is a too technical plea. As a matter of fact, Section 127 of a Code permits boost in a quantum. It is poignant to note that a focus for upkeep was filed on 13.9.1994. The sequence extenuation upkeep was upheld by a schooled Judicial Magistrate, Jaunpur on 3.6.2006. One should not forget that a Additional Sessions Judge, Jaunpur in rapist rider extended a quantum of volume from Rs. 500 to Rs. 1,000 per month w.e.f. a date of sequence in lieu from a date of application. Otherwise also a vigilant behind a upkeep move underneath Section 125, Cr.P.C., is not to retaliate a chairman for his past slight though to forestall itinerancy and distress by constrained those who can yield support to those who are incompetent to support themselves and who have normal explain to support. Such a forlorn mother should be in a position to say customary of vital that is conjunction lush nor penurious though what is unchanging with standing of a family, with this vigilant a legislature has extrinsic Section 127, Cr.P.C. giving a right to such a women, children or relatives whosoever they might be to explain for encouragement of a quantum of a upkeep stipend underneath a altered circumstances. Perceived with this perspective if a revisional Court had extended a quantum of upkeep stipend from Rs. 500 to Rs. l,000 from a date of a sequence of a Judicial Magistrate in lieu of from a date of application, has committed no mistake.”

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10. The memo of parties shows that while respondent is staying in Delhi in Shahbad Mohammad Pur that can be deliberate to be an urbanized village, a respondent is vital in encampment Lakhan Majra, Hair Pana, Distt. Rohtak, Haryana. Obviously, a respondent is attending his avocation in Delhi from his encampment possibly as daily newcomer or contingency be staying in barrack in exigency to perform his avocation to be liberated by him. It is not a box of postulant that respondent is carrying luxuries of life of that she has been deprived.

11. The petitioner, detached from a endowment being perceived by her, has been awarded Rs. 2,000 per month towards upkeep that can't be termed as too low so as to put a postulant on a verge of itinerancy and destitution.

12. As a schooled ASJ has already extended a volume of upkeep from Rs. 1,000 to Rs. 2,000, we do not find any illegality, feebleness or impropriety in a impugned sequence upheld by a Judge, Family Court, Dwarka, New Delhi. The impugned order, therefore, does not aver division by this Court in practice of fundamental jurisdiction.

13. There is no consequence in a benefaction petition and a same is hereby dismissed.

Petition dismissed.

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