Madhya Pradesh High Court
Lalji Mishra vs Smt. Kundkali on 20 August, 2018
Equivalent citations: AIRONLINE 2018 MP 734
THE HIGH COURT OF MADHYA PRADESH
PRINCIPAL SEAT AT JABALPUR
S. B. : Hon'ble Shri Justice Rajendra Kumar Srivastava
Misc.Criminal Case No.20666/2015
Lalji Mishra
Vs
Smt. Kundkali
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Shri A.K. Tiwari, learned counsel for the applicant.
None for the respondent.
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ORDER
(20.08.2018) This Miscellaneous Criminal Case has been instituted under Section 482 of the Cr.P.C. for setting aside the order dated 17.10.2015 in Criminal Revision No.115/2015 passed by the Court of Additional Sessions Judge, Nagod, District Satna whereby the order dated 12.08.2014 passed in M.J.C. No.10/2013 passed by the Judicial Magistrate First Class, Nagod District Satna has been affirmed.
2. The respondent/applicant has filed an application under Section 127 of the Cr.P.C. for enhancement of the maintenance and the same was allowed. The trial Court 2 M.Cr.C.No.20666/2015 enhanced the maintenance amount from Rs.1,300/- per month to Rs.3,500/- in favour of the respondent/applicant.
3. According to the petitioner/non-applicant, earlier an application for enhancement was filed and the amount of Rs.625/- was enhanced of Rs.1,000/- per month. Thereafter, she again filed an application for enhancement of the maintenance amount and that application was allowed and the amount of Rs.1,000/- was enhanced to Rs.1,500/- per month, which was ultimately considered by this Court and Rs.1,300/- per month was directed to be paid. This important fact has not been considered by the both the learned Courts below that the maintenance amount cannot be enhanced again and again. Therefore, the findings given by the Courts below being perverse, unreasonable and violative of the procedure. The amount of maintenance granted to the respondent for such a long period was paid without any default. Earlier the amount was granted to the respondent and so also to her son Veeru Mishra, now Veeru Mishra has attained the majority and he is independently running business in the Court premises of Nagod. Further, the house has been 3 M.Cr.C.No.20666/2015 constructed by the respondent and she is getting income of rent. The petitioner/non-applicant has still to discharge his liability to make arrangement for his two adult daughters who are of marriageable age and in near future he has to make expenditure of such amount. In fact that the respondent has no any liability as such. It is settled principle of law that the order of maintenance cannot be enhanced again and again.
4. The petitioner has retired from service on 31.08.2016 and has to make the arrangement for the marriage of his daughters, therefore, after retirement it is very difficult for him to survive on the pension alone which will became half of the salary. He has to make payment of loan of Rs.9600/- per month for construction of the house of the respondent. Therefore, the order of enhancement has been passed in the exercise of excessive jurisdiction which is liable to be set aside.
5. None for the respondent at the time of argument.
6. On perusal of the record and the impugned orders, it is not disputed that the respondent/applicant is 4 M.Cr.C.No.20666/2015 wife of the petitioner/non-applicant. The respondent/applicant filed an application to enhance the maintenance filed under Section 127 of the Cr.P.C. This application was dismissed by the Judicial Magistrate First Class, Satna. The respondent/applicant filed a Revision against this order, the Revisional Court allowed the revision and enhanced the amount of maintenance from Rs.1,000/- to Rs.1,500/- per month. Thereafter, the present petitioner/non-applicant filed a Miscellaneous Criminal Case No.9786/2009 under Section 482 of the Cr.P.C. before this Court. This Court partly allowed the application and reduced the amount of maintenance from Rs.1,500/- to Rs.1,300/- per month. Thereafter, the respondent/applicant has filed an application under Section 127 of the Cr.P.C. for enhancement of the maintenance amount. The same was allowed and the amount of maintenance has been reduced from Rs.1,500/- to Rs.1,300/- per month. This order has been affirmed by the Revisional Court also. Then the petitioner/non- applicant filed this application before this Court. 5 M.Cr.C.No.20666/2015
7. It is revealed from the order of trial Court and Revisional Court that the respondent/petitioner has a son. She admitted in her evidence that the petitioner/non- applicant has given the agricultural land in partition for his son. She further admitted that her son Veeru is doing cultivation on that land. It is admitted fact that the respondent/applicant has sufficient means of earning.
8. According to the petitioner/non-applicant he also has two daughters and he also submitted that he has retired on 31.08.2016. He has to make arrangement for the marriage of his daughters. In these circumstances, it is evident that the petitioner/non-applicant has great liability. The Revisional Court has assessed the income of the petitioner/non-applicant to be Rs.17281/- per month.
9. The petitioner/non-applicant deposed that he has to pay of Rs.9600/- per month on account of personal loan. The Revisional Court assessed Rs.2,500/- per month for maintenance and Rs.1,000/- for rent in which the respondent/applicant is living. But, when the son of the petitioner/non-applicant is adult and he has sufficient means, he is bound to maintain her mother. The trial Court 6 M.Cr.C.No.20666/2015 and Revisional Court did not consider this aspect. So in these circumstances and the fact that petitioner/non- applicant has liability of her two daughters as they are of marriageable age and also the fact that there is sufficient means to the respondent/applicant for livelihood.
10. The learned trial Court has not considered these facts. So, the order of the learned Court below is not proper in this regard, and the same is required to be modified. In these circumstances, Rs.3500/- is excessive for the petitioner/non-applicant. Therefore, the same is fixed at Rs.2500/- per month.
11. In view of the aforesaid, the Miscellaneous Criminal Case is partly allowed to the extent that the respondent/applicant would be entitled to get Rs.2500/- (Rupees Two Thousand Five Hundred only) per month as maintenance.
(Rajendra Kumar Srivastava) Judge sp