Andhra HC (Pre-Telangana)
T. Kausalya vs T. Narayana Reddy And Anr. on 16 September, 1997
Equivalent citations: 1997(6)ALD537, 1997(2)ALD(CRI)740, 1998(1)ALT(CRI)254, 1998CRILJ1795
ORDER
1. This revision case is directed against the Judgment of the Family Court at Tirupathi in M.C. No. 7 of 1996 dated 16-2-1996 modifying the order of the II Additional Munsif Magistrate, Tirupathi dated 6-4-1993 in M.C. No. 29 of 1992 by reducing the maintenance amount to Rs. 100/- from Rs. 500/- per month from the date of the Judgment.
2. The facts, in brief, resulting in filing of this revision case are as follows :
(i) The revision petitioner Kousalya is the legally wedded wife of the first respondent herein T. Narayana Reddy. (For the sake of convenience they are referred to as wife and husband in this order.). The wife filed M.C. No. 29 of 1992 on the file of the II Additional Munsif Magistrate, Tirupathi, under section 125 Cr.P.C. for grant of maintenance alleging that she is the legally wedded wife and that her husband having sufficient means neglected and refused to maintain her. The husband filed his counter, but at the time of enquiry the counsel for the husband made an endorsement that the husband is willing to pay maintenance at the rate of Rs. 500/- per month and that a decree may be passed to that effect. In view of that endorsement on the petition, the learned Magistrate allowed that petition on 6-4-1993 and directed the husband to pay a sum of Rs. 500/- per month from the date of that petition. The husband continued to pay maintenance at that rate.
(ii) In the month of April, 1995, the husband filed Criminal M.P. No. 697 of 1995 in M.C. No. 29 of 1992 on the file of the II Additional Munsif Magistrate under section 125(5) Cr.P.C. alleging that he had retired from service, that the wife refused to live with him and that she was leading a way ward life, that she got a house at Tirupathi getting a sum of Rs. 2,500/- per month towards rent, that she gets annual income of Rs. 10,000/- from landed property and that the wife has got sufficient means and, therefore, the husband requested to cancel the order granting maintenance at the rate of Rs. 500/- per month towards maintenance in M.C. No. 29 of 1992 dated 6-4-1992. The wife resisted that petition filing a counter denying the allegations in that petition. Subsequent to the constitution of the Family Court at Tirupathi presided over by a District Judge that Criminal M.P. No. 697 of 1995 in M.C. No. 29 of 1992 was transferred from the Court of the II Additional Munsif Magistrate, Tirupathi, to the file of the Family Court, Tirupathi and the same was renumbered as Criminal M.P. No. 30 of 1995. Subsequently, as per the docket order dated 29-1-1996, Criminal M.P. No. 30 of 1995 was numbered as M.C. No. 7 of 1996 and proceeded with the enquiry. During the course of the enquiry, on behalf of the petitioner-husband, P.Ws. 1 to 3 were examined and Exs. B. 1 was marked. On behalf of the respondent-wife R.Ws. 1 to 5 were examined and Exs. R. 1 and R. 2 were marked. The husband got himself examined as P.W. 1, P.Ws. 2 and 3 were examined to speak to the income of the wife. Ex. P. 1 is the copy of the settlement deed. The wife got herself examined as R.W. 1, R.Ws. 2 to 5 were examined to show that the respondent-wife has no sufficient means. Ex. R. 1 is a demand notice; Ex. R. 2 is the electricity bill relating to the house in which the wife is living. On a consideration of the oral and documentary evidence placed before him, the learned Judge, Family Court, held that the maintenance already granted as per the Order in M.C. No. 29 of 1992 is liable to be varied and, accordingly modified the maintenance and directed the husband to pay maintenance at the rate of, Rs. 100/- per month only from the date of his order i.e. 16-2-1996.
Aggrieved of that order, the wife has come up with this revision.
3. Heard the learned counsel on both sides and also perused the lower Court record.
The learned counsel for the revision petitioner contended that the maintenance order passed in M.C. No. 29 of 1992 was at the consent of the respondent-husband, that the counsel for the husband made such an endorsement on the maintenance petition on 6-4-1993 that the husband is willing to pay maintenance at the rate of Rs. 500/- per month and that the decree was passed to that effect. Hence, the decree passed in pursuance of the said endorsement is a consent decree and it cannot be varied subsequently to the detriment of the wife. It is further contended that M.C. No. 7 of 1996 has been filed under section 125(5) Cr.P.C. and the ingredients under section 125(5) Cr.P.C. have not been established by the husband and as such the impugned order modifying the order of maintenance granted earlier in M.C. No. 29 of 1992 is not maintainable.
4. The learned counsel for the husband, on the other hand, submits his arguments in support of the impugned order. He also contended that M.C. No. 7 of 1996, though filed under section 125(5) Cr.P.C., is actually an application under Section 127 Cr.P.C. to alter the allowance granted to the wife in M.C. No. 29 of 1992 due to the change of circumstances subsequent to the passing of that order and that quoting a wrong provision of law in the petition is not a ground to refuse to render substantial justice to the parties when he is otherwise entitled to.
5. Admittedly, the husband filed M.C. No. 7 of 1996 under Section 125(5) Cr.P.C. Seeking cancellation of the maintenance order passed in M.C. No. 29 of 1992. Section 125(5) Cr.P.C. reads as under.
"On proof that any wife in whose favour an order has been made under this Section is living in adultery or that without sufficient reason she refuses to live with her husband or that they are living separately by mutual consent, the Magistrate can cancel that order".
As seen from the averments in the petition, and the evidence of the petitioner as P.W. 1, it is not his case that his wife is living in adultery or that they are living separately by mutual consent. Though a vague averment is made in the petition that his wife refused to join with him after his retirement, the same is not substantiated by adducing evidence that in fact he made a request to the wife to join with him after his retirement and that she refused to join him. Therefore, all the ingredients of Section 125(5) Cr.P.C. are not made out by the husband. But it has come in the evidence of P.W. 1, the husband-petitioner, that now he had retired from service and that he is incapable of paying maintenance at the rate as granted earlier in M.C. No. 29 of 1992 as his present income is only Rs. 3,000/- per month. It is also in his evidence that his wife is getting substantial income as rentals from the house and agricultural income from the lands. The learned counsel for the respondent-husband also contended that the maintenance granted in M.C. No. 29 of 1992 is liable to be altered in view of the change in the circumstances, that is, the husband has retired from the service and his income has deminished in view of his retirement from service, and that the husband is entitled for relief under sub-section (1) of Section 127 Cr.P.C. though that section is not quoted in the petition in view of the change in the circumstances. There is much force in this contention. Section 127(1) Cr.P.C. reads as under
"Section 127. Alteration in allowance -
(1) On proof of a change in the circumstances of any person receiving under Section 125 monthly allowance, or ordered under the same section to pay a monthly allowance to his wife, child father or mother, as the case may be, the Magistrate may make such alteration in the allowance as he thinks fit.
Provided that if he increases the allowance the monthly rate of five hundred rupees in the whole shall not be exceeded."
The plain import of sub-section (1) of Section 127 Cr.P.C. is that a provision is made therein for an increase or decrease of the allowance consequent on a change in the circumstances of the parties at the time of the application for alteration of the original order of maintenance. It must be shown that there has been a change in the circumstances of husband or of the wife. "Change of circumstances" referred to (in) sub-section (1) of Section 127 Cr.P.C. also includes change of circumstances of husband also. The amount of maintenance once fixed under section 125(1) Cr.P.C. is not something which can be taken to be a blanket liability for all time to come. It is subject to variation on both sides. It can be increased or decreased as per the altered circumstances, Further, where the circumstances alleged by the husband already existed at the time of passing the original maintenance order, proof of such circumstances cannot form the basis for altering the amount of maintenance under sub-section (1) of Section 127 Cr.P.C. A change in one of the circumstances of the person which may not affect his conditions or capacity to pay at the old rate is not effected and it has to be held that there is no change in the circumstances within the meaning of Section 127(1) Cr.P.C. It has been held by our High Court in a decision that fall or rise in the husband's income or status may be urged as a change in the circumstances failing under the Section 127(1) Cr.P.C. In the instant case, admittedly the husband was working in the Military and according to him, he was drawing a salary of Rs. 8,000/- per month at the time when the earlier order of maintenance at Rs. 500/- per month was passed. Further, as seen from the record, he himself got an endorsement made on the petitioner through his counsel that a decree may be passed granting maintenance at the rate of Rs. 500/- per month. It is not disputed that by the date of filing of M.C. No. 7 of 1996 the husband has retired from service and accordingly he is getting monthly pension of Rs. 3,000/-. Thus, in view of his retirement, there is diminition of his income and that itself amount to change in the circumstance in the financial position or capacity of the husband to pay the maintenance as per the earlier order. Except, the 'ipse dixit' of R.W. 1, there is nothing on record to show that the husband is also getting substantial income from any other source including from the landed property. Therefore, it is open for the husband to plead for variation of the maintenance order in view of the later circumstance i.e. his retirement from service and fall in his income. This change of circumstance definitely affects the capacity of the husband to pay at the old rate of maintenance to the wife. Further, it has come in the evidence of R.Ws. that the wife is getting rents by letting out a portion of her house and that she is also maintaining some pet animals.
7. As regards the contention of the learned counsel for the revision petitioner-wife that no such relief can be granted as the application is not filed under section 127(1) Cr.P.C., it may be stated that the husband has pleaded for cancellation of modification of the earlier order of maintenance on the ground that he has retired from service but quoted a wrong provision of law i.e. Section 125(5) Cr.P.C. It is well settled that quoting a wrong provision of law in the petition is not a ground to reject the petition when he is otherwise entitled for substantial justice. Therefore, I am not able to agree with the said contention of the learned counsel for the wife.
8. The next aspect to be considered is that in view of the altered circumstances of the husband, that is, his retirement from service and getting a monthly pension of Rs. 3,000/- only, what is a just and reasonable amount that has to be ordered to be paid towards the maintenance of his wife ? As seen from the impugned order the learned Judge reduced the maintenance from Rs. 500/- to Rs. 100/- per month. But considering the facts and circumstances in this case it is a very meagre amount and as such the same is liable to be set aside. I am of the opinion that it will meet the ends of justice if the husband is directed to pay maintenance at the rate of Rs. 250/- per month instead of at the old rate of Rs. 500/- per month and also if it is ordered to come into effect from 16-2-1996 i.e. the date of the order passed in M.C. No. 7 of 1996.
9. For the aforesaid reasons, the revision case is allowed partly. The impugned order in M.C. No. 7 of 1996 is modified and the husband is directed to pay maintenance at the rate of Rs. 250/- per month to the wife i.e. the revision petitioner herein from 16-2-1996 as against the maintenance at Rs. 500/- per month granted in M.C. No. 29 of 1992.
10 .Order accordingly.