1. This revision is directed against the judgment and order of Ms. Pratibha Saxena, the Additional Principal Judge, Family Court, Court No.2, Ghaziabad dated 22.01.2020, enhancing maintenance payable by the revisionist to the wife, Smt. Rajkali. The order aforesaid has been made in exercise of powers under Section 127 Cr.P.C.
2. Affidavits have been exchanged between parties.
3. Admit.
4. Heard forthwith.
5. Heard Mr. Mohd. Monis, learned Advocate holding brief of Mr. Amar Jeet Upadhyay, learned Counsel for the revisionist, Ms. Mandavi Tripathi, Advocate holding brief of Mr. Santosh Tripathi, learned Counsel for opposite party no.2 and Mr. S.S. Tiwari, learned AGA appearing on behalf of the State.
6. The revisionist, Mange Ram Ravi and his wife Rajkali were married according to Hindu rites on 16.06.1978. The marriage was followed by a customary Gauna on 14.07.1980. It is the wife's case that her father had lavished the couple with gifts according to his means. It is her further case that post-marriage, the revisionist and his relatives tortured her, and on 10.03.1986, over an unmet demand for a refrigerator, scooter and Rs. 10,000/- in cash, she was thrown out of her matrimonial home. The wife brought proceedings under Section 125 Cr.P.C. on 21.10.1987 in the Court of the then Second Additional Munsif Magistrate, Ghaziabad praying that she may be awarded a monthly maintenance to keep her body and soul together. The husband contested the claim by filing a written statement. However, he absented from the proceedings later on. The Magistrate by an ex parte judgment and order dated 11.04.1991, awarded maintenance in the sum of Rs. 500/- per mensem from the date of application (w.e.f. 27.10.1987).
7. The husband challenged the aforesaid order in revision by moving the learned Sessions Judge. The Sessions Judge remanded the matter to the Magistrate. The maintenance case, post remand, came up for determination before the 9th Additional Chief Judicial Magistrate, Ghaziabad on 30.07.1987, who again passed a maintenance order awarding Rs. 500/- per month. The husband once again moved the Court of Sessions seeking to revise the Magistrate's order. On this occasion, the learned Sessions Judge dismissed the revision vide order dated 31.12.1993.
8. Aggrieved by both these orders, the husband instituted Writ Petition No. 252 of 1994 before this Court that came to be dismissed vide an order dated 29.04.2002. It is the wife's case that she has no other means of sustenance except that provided to her by her husband.
9. The wife made an application on 18.03.2008 under Section 127 Cr.P.C. saying that the maintenance order was passed way back on 30.07.1992 and during all this time the price index had risen a lot. She said that it was not possible to make ends meet in the paltry sum of Rs. 500/- granted to her in maintenance way back in time. She also said she has grown older and stays unwell. The husband on the other hand is an Advocate practicing at Meerut who has a stable monthly income of Rs.50,000/-. The wife, therefore, sought enhancement to a sum of Rs. 7500/- in maintenance in place Rs.500/- per month, earlier awarded. The husband contested this case. He acknowledged the factum of marriage. He said, however, that the wife is a City Dweller as she has always lived in Ghaziabad. She does not wish to stay in the village, where the husband stays. She had left the revisionist and went away from home telling her father that she could not stay in the village.
10. It was also pleaded that the wife, in connivance with her sister, Chandrakali, who is employed as a stenographer in the District Judgeship Ghaziabad, got a number of baseless cases instituted against the husband. It is also said that when he came out of those various proceedings, she was irked into instituting Case no.596 of 1986, seeking a decree of divorce. The petition was granted on 18.02.1991. It is also pleaded that ever since the divorce, the relationship as husband and wife has ceased between parties. The wife stays with her father. Her father was employed on a good position in the Railways and draws a monthly pension of Rs.15,000/- per month.
11. It was also pleaded that the revisionist has remarried and he has his wife, Smt. Sudha and two children, whom he is obliged to maintain. He has no means of income. He was earlier employed with M/s. Modi Rubber, but in the year 2001, there was a closure of the Company's establishment/ factory. He is unemployed ever since. It was also pleaded that he is aged about 55 years and cannot secure alternative employment. There is a plea that the wife is the holder of a B.Ed. Degree, besides a Special B.T.C. She is a teacher in the Primary School, an avocation which yields her regular income. The husband also pleaded that he has no property or accumulated wealth, the absence of which, renders him unable to maintain the wife. There is also a plea raised to the effect that no doubt he was enrolled as an Advocate, but he is not able to earn anything from the profession. It is also the husband's case that after divorce, the provisions of Section 127 Cr.P.C. are not attracted.
12. The learned Judge in the Family Court has found that a sum of Rs.500/- was awarded in maintenance way back on 03.07.1992. The circumstances have undergone a lot of change since then and living has become dearer. The learned Judge has also remarked that the husband's case, that he too has grown older and is afflicted with serious ailments, is not borne out by any documentary evidence. He has been found to be enrolled as an Advocate since the year 2006, a fact that the husband has acknowledged in the witness box. The woman, whom he has remarried, is employed as a teacher. In these circumstances, the Judge in the Family Court has enhanced the maintenance to a sum of Rs.3000/- per month from the date of application.
13. It is argued by the learned Counsel for the revisionist that though the rule is generally to award maintenance from the date of application, but this is a case of enhancement and maintenance ought to be awarded from the date of order. Ms. Mandavi Tripathi, learned Counsel appearing for opposite party no.2 has not challenged this submission made on behalf of the revisionist. It is true that generally speaking the law is that the maintenance ought to be awarded from the date of the application, but the circumstances in this case are different. No doubt, the wife is entitled to an enhancement of the maintenance, that was awarded decades ago, but the countervailing factor on account of the aging husband has also to be borne in mind. There is nothing on record to show that the husband has a very lucrative practice. There is no reference to income tax return or any other tangible evidence to establish his professional receipts. He has remarried and his wife now is a teacher, but her income is not relevant in fixing the quantum of maintenance payable.
14. In the opinion of this Court, to ask the husband to pay arrears of enhanced maintenance, would not be a very fair exercise of discretion in the circumstances of this case.
15. This Revision is, accordingly, allowed in part and the impugned order dated 22.01.2020 passed by the learned Additional Principal Judge, Family Court, Court no.2, Ghaziabad is modified to the extent that the enhanced maintenance in the sum of Rs.3000/- would be payable to the wife-opposite party no.2 from the date of the judgment and order dated 22.01.2020 passed by the Family Court.
Order Date :- 18.1.2021 Anoop/ BKM/ Deepak