Calcutta High Court (Appellete Side)
Sudarshan Agarwal vs Seema Agarwal on 21 December, 2018
Form No.J(1)
IN THE HIGH COURT AT CALCUTTA
Criminal Appellate Jurisdiction
Present:
The Hon'ble Justice Madhumati Mitra
C.R.R. No.284 of 2018
With
C.R.R.No.3982 of 2017
Sudarshan Agarwal
-Versus-
Seema Agarwal
Advocate for the Petitioner : Mr. Supriyo Chattopadhyay
Mr.Sudip Kumar Maity
Opposite Party : Ms. Seema Agarwal
Heard on : 14.12.2018
Judgment on : 21.12.2018
Madhumati Mitra, J. :
Both the revisional applications have been preferred by the same revisionist challenging the orders dated 24.11.2017 and 29.12.2017 passed by learned Judicial Magistrate, 5th Court, Howrah in Misc. Case No.677A of 2012 and Misc. Case no.193 of 2016 respectively under Section 127 Code of Criminal Procedure.
Misc. Case no.677A of 2012 was initiated by the present opposite party of the both revisional applications praying for enhancement of the amount of maintenance which was granted on 18.11.2004 in Misc. Case no.199 of 2002 under Section 125 Cr.P.C. On the other hand Misc. Case No.193 of 2016 was filed by the present revisionist praying for cancellation of the said order of maintenance dated 18.11.2004 under Section 125 Cr.P.C.
Learned Magistrate allowed Misc. Case no.677A of 2012 and enhanced the amount of maintenance to Rs.5,000/-(Rupees Five Thousand) and Rs.4,000/- (Rupees Four Thousand) for the petitioner (present O.P) and her minor son respectively from the date of the passing of the impugned order and directed the O.P. (the present revisionist) to pay the enhanced amount of maintenance month by month.
The amount of maintenance which was enhanced vide order 24.11.2017 in Misc. Case no.677A of 2012 has been reduced to Rs.4,000/-(Rupees Four Thousand) and Rs.3,000/-(Rupees Three Thousand) in favour of the present opposite party and her son respectively vide order dated 29.12.2017 passed in Misc. Case No.193 of 2016.
Being aggrieved by and dissatisfied with the orders passed in the above mentioned Misc. Cases, the petitioner has filed both the revisional applications challenging the legality and correctness of both the impugned orders passed in connection with both the Misc. Cases mentioned above under Section 127 Cr.P.C.
Learned Counsel for the revisionist/petitioner prayed for analogous hearing of both the revisional applications on the ground that both the orders originated in respect of the same order of maintenance granted under Section 125 Cr.P.C. and both the revisional applications are interrelated with each other. Opposite party appeared in person and she submitted that she had no objection if both the revisional applications were heard together. As such on consent of both the parties, both the revisional applications were heard analogously.
Learned Advocate for the petitioner has assailed both the impugned orders on various grounds. The main plunk of his submission is that learned Magistrate has committed an error at the time of enhancing the amount of maintenance as he has failed to consider the actual income of the revisionist/petitioner. He has contended that the learned Magistrate ought to have considered the income of the opposite party as reflected in various pass books of the bank and ought to have come to the conclusion that the opposite party has sufficient means to maintain herself and her son. According to his contention the order of enhancement of maintenance is not at all justified. He has further submitted that the present revisionist/petitioner filed the application being Misc. Case no.193 of 2016 under Section 127 Cr.P.C. praying for cancellation/modification of the order of maintenance, but learned Magistrate instead of cancelling or modifying the said order of maintenance under Section 125 Cr.P.C. has reduced the amount of maintenance which was enhanced by him under Section 127 Cr.P.C. in Misc. Case no. 677A of 2012. His specific contention is that cancellation or reduction was sought for by the revisionist in respect of the amount of maintenance granted under Section 125 Cr.P.C. under changed circumstances.
Opposite party has appeared in person and submitted that she has no source of income to maintain herself and her son. She has to depend on her father and her family members. According to her contention her son is a student. His educational expenses as well as their cost of living are incurred by her father. The amount of maintenance granted under Section 125 Cr.P.C. in the year 2004 is too meager for maintaining their livelihood and as such she approached for enhancement of the amount of maintenance under changed circumstances. She has further submitted that the order of enhancement of maintenance passed by learned Magistrate on 24.11.2017 in Misc. Case no.677A of 2012 is justified and there is no reason to interfere with the said order. She has prayed for dismissal of both the revisional applications. She has made further prayer to give effect of the order of enhancement of maintenance dated 24.11.2017 passed in Misc. Case no.677A of 2012 from the date of the application, not from the date of the order. She has prayed for modification of the order of enhancement of maintenance in this regard. Her specific submission is that the amount of maintenance as awarded to her under Section 125 Cr.P.C. was granted in the year 2004. In the meantime, the educational expenses of her son and cost of their livelihood have been increased many times due to rising of price of essential commodities. Opposite party has also contended that though she filed her application for enhancement of maintenance in the year 2012 but due to the conduct of the revisionist the said application was not disposed of in time.
Learned Advocate for the revisionist has submitted that the revisionist was not given reasonable opportunity of being heard by the learned Magistrate and learned Magistrate disposed of the applications under Section 127 Cr.P.C. hurriedly and as such he has prayed for setting aside both the orders passed by the learned Magistrate and to send back both the cases before the Magistrate on remand for hearing afresh.
Before dealing with the rival submissions of the parties, it would be better and justified to set out the facts of the case briefly.
Present opposite party got an order of maintenance for herself and her minor son in connection with Misc. Case no. 199 of 2002 under Section 125 Cr.P.C. The said order of maintenance was passed on 18.11.2004 and the amount of maintenance was Rs.1,000/- and Rs.2,000/- for the minor son of the opposite party and opposite party herself respectively. In the year 2012 opposite party filed an application praying for enhancement of the said order of maintenance on the grounds that the amount of maintenance which was awarded in the year 2004 was not sufficient to bear the educational expenses of her son and to maintain themselves. She has claimed Rs.15,000/- (Rupees Fifteen Thousand) for herself and Rs.10,000/- for her son. That application was registered as Misc. Case no.677A of 2012.
Present revisionist in his written objection claimed that petitioner/O.P. of the revisional applications earns Rs.22,000/- in total as she is a school teacher and she also earns from tuition. Revisionist claimed that he remarried and he has one child. He has to maintain them and his parents. His income is only Rs.7,600/- per month. He prayed for rejection of the prayer for enhancement of maintenance amount of the petitioner i.e. opposite party of the present revisional application.
During the pendency of the Misc. Case no. 677A of 2012, the revisionist filed another Misc. Case being No.193 of 2016 under Sec.127 Cr.P.C. praying for cancellation of the order of maintenance dated 18.11.2004 passed in Misc. Case no.199 of 2002 under Section 125 Cr.P.C. It was alleged by the Revisionist that the opposite party married and was residing with her new family. It was claimed by the revisionist that the O.P. has sufficient means as she is a school teacher and also earns from tuition to maintain herself and her son. All the claims and allegations of the revisionist were denied by the Opposite party.
From the contention and rival contention of the parties, it would appear at a glance that following three questions arise for consideration:
i) Whether the opposite party of the revisional applications and her son are entitled to enchanced maintenance;
ii) What could be the amount of enhancement;
iii) Whether the order of maintenance under Section 125 Cr.P.C. could be cancelled or reduced.
Both the Misc. Cases no.677A of 2012 and 193 of 2016 arose in respect of the self same order of maintenance under Section 125 Cr.P.C. From the impugned order passed in connection with Misc. Case no.677A of 2012 it appears that initially that Misc. Case was heard ex-parte. Thereafter the said ex- parte order was set aside and opposite party i.e. present revisionist was given opportunity to contest that case. From the materials on record it further appears that the revisionist took a plea that the name of the minor son of the opposite party (petitioner) was not correct. However, from the materials on record it appears that admittedly one son was born out of the wedlock parties and that boy remains in the custody of her mother. The bank documents on which the learned Advocate for revisionist has placed reliance to show that the opposite party has sufficient means were not brought into evidence either in Misc. Case no.193 of 2016 or in Misc. Case no.677A of 2012. As such no weightage can be given on those papers by the revisional Court. The learned Advocate for the revisionist has further contended that the learned Magistrate has failed to consider that the monthly income of the revisionist is only Rs.7,600/- (Rupees Seven Thousand Six Hundred). According to his contention amount of maintenance as enhanced by the learned Magistrate is excessive and unreasonable. A plea was taken by the present revisionist/the opposite party of Misc. Case no.677A of 2012 that the petitioner is a primary school teacher and she earns a lot by giving tuition. The revisionist has failed to prove by adducing evidence that the present opposite party/petitioner of Misc. Case no.677A of 2012 is a school teacher or has sufficient means to maintain herself.
The change of circumstances as appeared under Section 127 Cr.P.C. does not mean not only in relation of the wife but also in relation to the husband. When the husband begins to earn more, the wife can approach under Section 127 Cr.P.C. to enhance maintenance. Similarly, when the wife begins to earn then the husband may apply either to cancel the order of maintenance or to reduce the amount of maintenance granted by the Magistrate under Section 125 Cr.P.C.
In the instant case the revisionist husband filed one Misc. Case being no.193 of 2016 praying for cancellation of the order of maintenance dated 18.11.2004 on the ground that in the year 2005 the opposite party wife married another person and started to reside with him. In his said petition the revisionist also claims that opposite party earns Rs.13,000/- (Rupees Thirteen Thousand) by getting monthly salary as a teacher and Rs.9,000/- per month (Rupees Nine Thousand) by way of giving tuition. The claim of the present revisionist regarding the income of the opposite party in Misc. Case no.193 of 2016 was totally denied by the opposite party. The Revisionist has failed to discharge that burden by proving the income of the opposite party adducing cogent evidence.
In fact the petitioner of the Misc. Case No. 193 of 2016 has totally failed to substantiate his allegation of another marriage of opposite party and her income. However, the learned Magistrate has reduced the amount of maintenance which was granted to the opposite party and her son in Misc. Case no.677A of 2012 to Rs.4,000/-(Rupees Four Thousand) for the opposite party and Rs.3,000/-(Rupees Three Thousand) for her minor son. Opposite party approached the Court for enhancement of maintenance in the year 2012. The grounds as taken by the present revisionist in both the Misc. Cases are more or less similar. Regarding the quantum of maintenance learned Magistrate has specifically observed that the revisionist is capable to earn money. The amount of enhancement does not appear to be excessive or unreasonable considering the present market price. The quantum of maintenance as enhanced vide order dated 18.11.2017 in Misc. Case no.677A of 2012 is quite just and proper.
From the contentions of the application of the revisionist under Section 127 Cr.P.C which was registered as Misc Case No. 193 of 2016 it appear that the revisionist had knowledge about the alleged marriage of the opposite party in the year 2005. Then the question comes why he kept mum for more than one decade to approach for cancellation of the order of maintenance granted in the year 2004 under Section 125 Cr.P.C. Materials on record go to show that the revisionist adopted dilatory tactices to avoid maintenance of the opposite party and her son. The order of maintenance was passed in the year 2004. The order of enhancement of maintenance has been passed in the year 2017 on the basis of the application filed by the opposite party in the year 2012. By this time the minor son of the opposite party promoted to higher class and the expenses for his education, price of essential commodities have also been increased many times. Above mentioned factors are within the purview of the term change of circumstances. These are the justified grounds to enhance the amount of maintenance which was granted in the year 2004. In fact the Misc. Case filed by the revisionist in the year 2016 is nothing but the counterblast of the Misc. Case filed by the opposite party in the year 2012.
In the light of the observations and reasons mentioned above, I am of the view that the learned Magistrate was fully justified in granting enhancement of maintenance and there is no infirmity in the same. Opposite party of both the Revisional applications and her son are entitled to get enhanced maintenance and quantum of maintenance as granted by learned Magistrate in Misc. Case no.677A of 2012 is just and proper.
The prayer of the revisionist to send both the cases on remand for hearing afresh has no basis at all as the revisionist got sufficient opportunities as reflected on the materials on record. The learned Advocate for revisionist has submitted that revisionist has prayed for cancellation of the order of maintenance but the learned Magistrate without cancelling the order passed under Section 125 Cr.P.C. reduced the amount of maintenance which was enhanced under Section 127 Cr.P.C. on the basis of the prayer of the opposite party. The grounds for cancellation of the order passed under Section 125 Cr.P.C. as taken by the revisionist in Misc. Case no.193 of 2016 have not been substantiated by him by adducing cogent and convincing evidence. He has totally failed to substantiate that the opposite party had married again or has sufficient income. Prior to passing of the order in Misc. Case No. 193 of 2016, the order under Section 125 Cr.P.C was modified in Misc. Case No. 677A of 2012 and the amount of maintenance was enhanced. Learned Magistrate reduced the enhanced amount while considering Misc. Case No. 193 of 2016.
In the above situation I am of the view the order of reduction of the amount of maintenance in Misc Case no.193 of 2016 which was enhanced vide order no.24.11.2017 passed in Misc. Case no.677A of 2012 is not justified. The learned Magistrate has committed an error in reducing the amount of maintenance which was enhanced by order dated 24.11.2017 in Misc. Case no.677A of 2012 just only month before the impugned order passed in Misc Case No. 193 of 2016. The order dated 29.12.2017 passed in Misc. Case no.193 of 2016 requires to be interfered with and cannot be sustained in law as revisionist/petitioner of the Misc. Case has totally failed to substantiate the grounds taken by him in his petition for cancellation or reduction of amount of maintenance granted under Section 125 Cr.P.C. Order dated 29.12.2017 passed in Misc. Case no.193 of 2016 is hereby set aside.
The opposite party has verbally prayed for giving effect to the order of enhancement of maintenance from the date of filing the application.
Order of maintenance can be made payable from the date of order or if so ordered from the date of the application. In the present case the learned Magistrate directed to pay the enhanced maintenance from the date of the order. Opposite party has not assigned any reason in support of her prayer.
As such, the prayer of the opposite party regarding giving effect of order of enhanced maintenance from the date of the application cannot be entertained.
The above discussions lead me to hold that the:
i) Opposite party and her son are entitled to get enhanced maintenance;
ii) The quantum of maintenance as granted by the learned Magistrate in Misc. Case no.677A/2012 is justified,
iii) The Revisionist failed to justify his prayer for cancellation/reduction of the amount of maintenance which was granted on 18.11.2004 in Misc. Case No. 199 of 2002 under Section 125 Cr.P.C. and subsequently enhanced vide order dated 24.11.2017 in Misc. Case No. 677A of 2012.
Thus both the revisional applications being C.R.R.No.284 of 2018 arising out of order dated 29.12.2017 in Misc. Case no.193 of 2016 and C.R.R. No.3982 of 2017 arising out of order dated 24.11.2017 in Misc. Case no. 677A of 2012 of learned Judicial Magistrate, 5th Court, Howrah are disposed of.
Let the copy of this order be sent to the learned Judicial Magistrate, 5th Court, Howrah for information.
Urgent Photostat certified copy of this order, if applied for, be supplied to the parties on priority basis after observing all formalities.
(Madhumati Mitra, J.)