Delhi District Court
Smt. Asha vs Sh. Satender Kumar on 15 February, 2010
: 1 :
IN THE COURT OF MS. SHUCHI LALER
MM (MAHILA COURT) : KARKARDOOMA COURT : DELHI
Institution no. 2490/07
Date of decision 15022010.
u./s 127 Cr.P.C.
In the matter of
1. Smt. Asha
w/o Sh. Satender Kumar
d/o Sh. Vijay Pal Singh
2. Kumari Jyoti
3. Kumari Kajal @ Ashu
(petitioner nos. 2 & 3 through her mother / natural guardian)
All r/o A8, Gali No. 1,
Brahampuri,
Delhi. ......... Petitioners
Versus
Sh. Satender Kumar
s/o Sh. Satvir Singh
r/o A975, Ghadoli,
Dairy Farm, Near Mayur ViharIII,
Delhi .......... Respondent
APPLICATION U/S 127 Cr.PC FOR ENHANCEMENT
OF THE MAINTENANCE GRANTED TO THE APPLICANT
JUDGEMENT:
1. By this judgement I shall decide the present petition filed u/s 127 : 2 : Cr.P.C moved by Smt. Asha on behalf of herself and Kumari Jyoti / petitioner no. 2 and Kumari Kajal @ Ashu / petitioner no. 3. It is stated that the petitioner no. 1 was married with the respondent on 09121993 as per Hindu Rites & Customs at Delhi. Out of the said wedlock, two daughters namely Kumari Jyoti aged about 10 years / petitioner no. 2 and Kumari Kajal @ Ashu aged about 8 years/ petitioner no. 3 were born and are studying in classes V & III respectively in School i.e. Spring Flower's Public School, Brahampuri, Delhi - 53. It is alleged that on 27032007, the petitioners filed a petition for maintenance wherein the Learned Predecessor Judge granted maintenance for a sum of Rs.1,000/ p.m. to petitioner no. 1 and Rs.500/ p.m. each to petitioner nos. 2 & 3 i.e. a total Rs.2,000/ p.m. w.e.f. filing of the petition. It is alleged that since the inlaws including the respondent threw out the petitioner no. 1 alongwith both minor children from the matrimonial home, the petitioner no.1 was residing at her brother's home but now due to family problems, the petitioner no. 1 is facing too much difficulties in residing at the brother's home. It is alleged that the amount which the petitioners are getting for maintenance is not sufficient to meet the daily needs of the petitioner no.1 and her both daughters and the petitioner no. 1 has to spend on petitioner nos.
: 3 : 2 & 3 for their maintenance and misc. expenses (books, copy stationary, conveyance and coaching etc.) worth Rs.1,500/ on each child and Rs.5,000/ on her other expenses of daily needs and has to spend on house rent also. It is further stated that the petitioner no. 1 is unemployed having no source of income and is fully dependent upon the maintenance for day to day needs and requirements, which is not sufficient. It has been claimed that the respondent is employed with the Delhi Fire Services and getting handsome salary and the respondent is also having immovable property from which he is having extra income also. It is therefore, prayed that maintenance allowance @Rs.5,000/ per month be awarded for petitioner no. 1 and @Rs.3,000/ p.m. each in favour of petitioner nos. 2 & 3.
2. Reply has been filed by the respondent wherein it is stated that the respondent is working as a Fireman in Delhi Fire services and is getting Rs.5,876/ as salary after deduction. It has also been stated that an amount of Rs.50,000/ each has been deposited by way of FDR in the name of petitioner nos. 2 & 3 and has been handed over to petitioner no. 1. The respondent has stated that he has no other income except his salary and he has no immovable property in his name. The respondent has claimed that he is earning a sum of : 4 : Rs.5,876/ out of which Rs.2,000/ is being paid to the petitioners regularly and rest of Rs.3,876/ is required by the respondent for his personal expenses.
3. The Petitioner no. 1 in support of her case has examined herself as PW1 and has tendered her evidence by way of affidavit, which is Ex.PW1/A bearing her signature at pointA & B wherein she has reiterated the facts stated in the Petition. She has been cross examined by the Ld. Counsel for Respondent and in her cross examination, she has stated that she has no proof of the salary of the respondent being Rs.20,000/ p.m. PW1 admitted that she has received two cheques of Rs.50,000/ each after the order of Hon'ble High Court of Delhi at the time of grant of bail u/s 498A/406 IPC. PW1 denied the suggestion that the respondent is getting Rs.5,876/ p.m. as salary from the Department Delhi Fire Services as Fireman. On 18122009, when the matter was listed for respondent's evidence, the Ld. Counsel for respondent stated at bar that the respondent does not wish to examine any witness, accordingly, the respondent's evidence was closed.
4. I have heard the Learned Counsels for the parties and perused the record with their assistance.
5. Sub Section 1 of Section 127 CrPC deals with alteration in : 5 : maintenance allowance as a result of change in circumstances. The change in circumstances referred to in Section 127(1) CrPC is a change in the pecuniary or other circumstances of the party paying or receiving the allowance which would justify an increase or decrease of the amount of the monthly payment originally fixed.
6. Now adverting to the facts of the present petition, the petitioner has sought enhancement of maintenance amount on the ground of advancement in the age of the petitioner nos.2 & 3 and on account of increase in the prices of day to day commodities and also on the ground of increase in the salary of the respondent. Vide order dated 26052005, the Learned Predecessor Judge had awarded maintenance allowance @Rs.1,000/ p.m. in favour of petitioner no. 1 and @ Rs.500/ p.m. each in favour of petitioner nos. 2 & 3. PW1 has deposed that at the time of filing of the petition u/s 125 Cr.P.C., the petitioner nos. 2 & 3 were 6½ years and 4-½ years old and at present, the petitioner nos. 2 & 3 are aged about 11 years and 9 years and are studying in classes 6th and 4th. The testimony of the petitioner no. 1 / PW1 remains unrebutted and uncontroverted as the Ld. Counsel for respondent did not prefer to cross examine petitioner no. 1 regarding enhancement in the age of petitioner nos. 2 : 6 : & 3. The petitioners have successfully proved that there has been a change in the circumstances as there has been advancement in the age of Petitioner nos. 2 & 3. Judicial notice can be taken that there has been an increase in the prices of essential commodities since 2005. Admittedly, the respondent is an employee of Delhi Fire Services. The respondent has himself filed on record the details of his gross salary from the month of July, 2007 till January, 2010. In the year 2008, the gross salary of the respondent was Rs.9,656/ and in the year 2009, the gross salary of the respondent was Rs.16,150/ and also in the month of January, 2010, the gross salary of the respondent was Rs.16,150/. The petitioners are entitled to enhancement in the monthly maintenance allow with effect from the date of filing of the present petition i.e. 24032008, hence, on the basis of the gross salary of the respondent on record, it would be safe to presume that the average monthly income of the respondent would be Rs.14,000/ p.m. approximately. Having regard to the income of the respondent and the status of the parties and their liabilities, the petition is accordingly decreed with the direction to the respondent to, henceforth pay a sum of Rs.3,000/ p.m. in favour of petitioner no. 1 and to pay a sum of Rs.2,500/ p.m. each in favour of Petitioner nos. 2 & 3 from the date of filing : 7 : of the present petition (Total Rs.8,000/ p.m. to be paid to the petitioners). Payment shall be made by 7th of every month by money order or be deposited in the bank account of the petitioner. Arrears shall be cleared within 6 months.
File be consigned to Record Room.
ANNOUNCED IN OPEN COURT
DELHI DT. 15022010 (SHUCHI LALER)
METROPOLITAN ;MAGISTRATE
KARKARDOOMA COURTS
DELHI