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Indu Bagde vs Sunil Bagde on 16 February, 2018

1 CR.R. No. 1295/2017

THE HIGH COURT OF MADHYA PRADESH

CRIMINAL REVISION NO. 1295/2017

Jabalpur, Dated 16.02.2018

Shri Jayant Prakash Patel, Advocate and

Shri Manoj Singh, learned counsel for the applicants.

Shri Rahul Kumar Tripathi, learned counsel for

respondent No. 1.

The applicants have filed this revision

challenging the order dated 01.04.2017 passed by the

Principal Judge, Family Court, Balaghat thereby awarding

the maintenance of Rs.2,000/- per month to applicant No. 1

and Rs.4,000/- each to applicants No. 2 and 3.

2. Brief facts of the case are that the applicants

have filed an application under Section 125 of the Cr.P.C

against the respondent claiming the maintenance. The

Family court has partly allowed the application preferred

by the applicants and thereby awarding a maintenance of

Rs.2,000/- to applicant No. 1 and Rs.4,000/- each to

applicants No. 2 and 3. The application has been filed on
2 CR.R. No. 1295/2017

the ground that applicant No. 1 and respondent had

entered into marriage on 06.06.2001. The respondent is

working on the post of Technician Grade-2 in the Indian

Railways at Nagpur. The respondent thereafter started

demanding the dowry from the applicant’s parents and for

that harassing her mentally and physically. Out of this

wedlock the applicant had two children. Thereafter, the

services of the respondent has been transferred to Balaghat.

After 2014, the respondent started to stay away from his

wife and children and stop the payment of expenses and

school fees to the applicants. Applicant No. 1 has also filed

a complaint under Section 498A/34 of the IPC and under

Section 3 and 4 of the Dowry Prohibition Act against the

respondent. Thereafter, on 10.11.2014, the applicants have

filed an application under Section 125 of the Cr.P.C

against the respondent claiming maintenance of

Rs.25,000/- per month for herself as well as for children. It

has further been stated that the salary of the respondent is

Rs.38,498/- and further he is the owner of 10 acres of
3 CR.R. No. 1295/2017

agricultural land and his mother is getting pension of

Rs.15,000/- per month and his younger brother also owns a

medical shop. Thus, there is no one dependent on the

respondent.

3. The Family Court after recording the evidence

of both the parties have passed an order thereby awarding

the maintenance of Rs.2,000/- per month to applicant No. 1

and Rs.4,000/- each to applicants No. 2 and 3. Being

aggrieved by that order, the applicants have filed this

application for enhancement of the award of maintenance

awarded by the Family Court.

4. Learned counsel appearing on behalf of the

applicants submits that the respondent is working on the

post of Technician Grade-2 in the Indian Railways and is

getting Rs.45,000/- per month. As per the pay slip which is

on record as Ex. A/7 his salary was Rs.47,289/- per month

in the month of July, 2014. He further submits that after

July, 2014 the 7th Pay Commission has been made

applicable to the Central Government Employees and after
4 CR.R. No. 1295/2017

coming into force of 7th Pay Commission there is a hike in

the salary of the respondent. It is also a fact that there is no

one in the family which is dependent on the respondent. In

such circumstances, the amount awarded by the Family

Court is on lower side.

5. On the other hand, learned counsel appearing

on behalf of the respondent argues that the amount

awarded by the Family Court is just and proper looking to

the income of the respondent.

6. Heard learned counsel for the parties and

perused the record as well as the documents. From the pay

slip which is filed by the applicants Annexure-A/7 on

record, the total gross pay of the respondent is Rs.47,289/-

per month and after deduction he is getting net pay of

Rs.38,498/-. This pay slip is of the month of July, 2014.

There is hike in the salary of the Government employees as

per 7th Pay Commission and also the fact that there is

considerable rise in the price index. Therefore, looking to

the present circumstances, the amount awarded by the
5 CR.R. No. 1295/2017

Family court to applicant No. 1 appears to be on lower

side.

7. The Apex Court in the case of Vinny Parmvir

Parmar Vs. Parmvir Parmar, AIR 2011 SC 2748, has

considered the case of Shri Bhagwan Dutt Vs. Smt.

Kamla Devi and Another in para 10, 11 and 12 and held as

under:-

“10. In Shri Bhagwan Dutt Vs.
Smt. Kamla Devi and Another,
though this Court has considered
the amount of maintenance
payable to wife u/s 488 of the
Code of Criminal Procedure,
1898, the principle laid down is
applicable to the case on hand. In
para 19, this Court held:

19. The object of these
provisions being to prevent

vagrancy and destitution, the
Magistrate has to find out as to
what is required by the wife to
maintain a standard of living
which is neither luxurious nor
6 CR.R. No. 1295/2017

penurious, but is modestly
consistent with the status of the
family. The needs and
requirements of the wife for such
moderate living can be fairly
determined, only if her separate
income, also, is taken into
account together with the
earnings of the husband and his
commitments.

11. In Chaturbhuj Vs. Sita Bai,
which also relates to maintenance
claim by deserted wife u/s 125 of
the Code of Criminal Procedure,
1973. The following statement in
para 8 is relevant which reads as
under:

……Where the personal income
of the wife is insufficient she can
claim maintenance u/s 125 Code
of Criminal Procedure. The test
is whether the wife is in a
position to maintain herself in the
way she was used to in the place
of her husband. In Bhagwan Dutt
7 CR.R. No. 1295/2017

Vs. Kamla Devi it was observed
that the wife should be in a
position to maintain a standard of
living which is neither luxurious
nor penurious but what is
consistent with status of a family.

The expression “unable to
maintain herself” does not mean
that the wife must be absolutely
destitute before she can apply for
maintenance u/s 125 Code of
Criminal Procedure.

12. As per Section 25, while
considering the claim for
permanent alimony and

maintenance of either spouse, the
Respondent’s own income and
other property, and the income
and other property of the
applicant are all relevant material
in addition to the conduct of the
parties and other circumstances
of the case. It is further seen that
the court considering such claim
has to consider all the above
8 CR.R. No. 1295/2017

relevant materials and determine
the amount which is to be just for
living standard. No fixed formula
can be laid for fixing the amount
of maintenance. It has to be in
the nature of things which
depend on various facts and
circumstances of each case. The
Court has to consider the status
of the parties, their respective
needs, the capacity of the
husband to pay, having regard to
reasonable expenses for his own
maintenance and others whom he
is obliged to maintain under the
law and statute. The courts also
have to take note of the fact that
the amount of maintenance fixed
for the wife should be such as
she can live in reasonable
comfort considering her status
and mode of life she was used to
live when she lived with her
husband. At the same time, the
amount so fixed cannot be
9 CR.R. No. 1295/2017

excessive or affect the living
condition of the other party.

These are all the broad principles
courts have to be kept in mind
while determining maintenance
or permanent alimony.”

8. Thus, in light of the aforesaid judgments as

well as the over all evidence produced by the applicants,

this revision is partly allowed and enhanced the amount of

maintenance awarded by the Family Court to applicant

No. 1 from Rs.2,000/- per month to Rs.5,000/- per month.

The enhanced amount shall be payable to the applicant

No. 1 from the date of passing of this order.

(Ms.Vandana Kasrekar)
Judge
ashish

Digitally signed by ASHISH
KUMAR LILHARE
Date: 2018.02.20 03:19:19 -08’00’

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