Court No. - 49
Case :- CRIMINAL REVISION No. - 1046 of 2021 Revisionist :- Smt. Rumi Kahkasha Opposite Party :- State of U.P. and Another Counsel for Revisionist :- Lal Mani Singh,Praveen Kumar Singh Counsel for Opposite Party :- G.A.,Mohammad Sadab Khan
Hon'ble Vivek Agarwal,J.
1. Sri Lal Mani Singh, learned counsel for the revision- petitioner and Sri Sadab Khan, learned counsel for the respondent no.2.
2. This Criminal Revision has been filed seeking enhancement of amount of maintenance awarded in favour of the revision- petitioner by the learned Additional Principal Judge, Family Court No.3, Kanpur Nagar vide order dated 30.01.2021 in Case No.307 of 1994 @ Rs.2000/- per month, treating notional income of the husband respondent no.2 to be Rs.7000/- per month from the date of order.
3. Sri Lal Mani Singh, learned counsel for the revision- petitioner submits that application for maintenance was filed in the year 1994. It is submitted that opposite party no.1-Mohd. Rizwan Khan in his examination-in-chief, which was conducted on 22.04.1997 accepted the factum of marriage and birth of a child from such marriage. He denied existence of 18 shops, but accepted that there are six shops in his house, which fetch rental to the tune of Rs.1800/- per month. He further admitted that he is engaged in the business of 'Kabad' and earns about Rs.1000/- to 1200/- per month. Admittedly, this statement was recorded on 22.04.1997, therefore, after lapse of 24 years, if the rate of inflation would have been taken into consideration and also the proportionate increase in the income, and when tested on the touchstone of the parameters of minimum wages, then in my opinion for an order passed in 2021, Court below erred in computing notional income of respondent no.2 at Rs.7000/- per month, taking all the parameters and the fact that evidence was adduced in 1997, it would be appropriate to compute notional income of respondent no.2 at Rs.15,000/- per month.
4. At this stage, Sri Mohd. Sadab Khan, learned counsel for the respondent no.2 appears and submits that he is filing his counter affidavit.
5. Let counter-affidavit be filed in the Registry during the course of the day.
6. Perused counter-affidavit at the insistence of the learned counsel.
7. In counter-affidavit, two defenses have been taken, namely, that complainant has herself admitted that she does not wish to live with her husband, and secondly that income of the respondent no.2-husband has been rightly computed at Rs.7000/- per month.
8. It is submitted by Sri Mohd. Sadab Khan, learned counsel for the respondent no.2 that taking into consideration age of the respondent no.2 to be 63 years, no indulgence is required in the matter of enhancement of maintenance amount.
9. As far as age of the respondent no.2 is concerned, it is mentioned as 38 years, when his cross-examination took place in June, 1997. Therefore, it may be true that age of the respondent no.2 is 63 years, but there is no material available on record to show that he is not engaging himself in his business of 'kabad' and is not having any income. There is no material on record to show that income from the rented property has seized to accrue or has not increased proportionately with passage of time.
10. In view of such fact circumstances and looking to the rate of inflation, it will be in the fitness of thing that if this revision is allowed and respondent no.2 is directed to pay a sum of Rs.4000/- per month as maintenance to his wife from the date of order.
11. In above terms, Revision Petition is disposed off. Order Date :- 28.7.2021 Ashutosh Digitally signed by Justice Vivek Agarwal Date: 2021.07.29 11:15:33 IST Reason: Document Owner Location: High Court of Judicature at Allahabad