A mutual consent divorce agreement was done wherein some amount was paid by husband per month to wife and child, but the amount was increased later by order of family court under CrPC 127 (which deals with alteration of maintenance granted under CrPC 125), and upheld by high court in this Allahabad High judgment. The main reason was rise in cost of living, and also increased earnings of the husband so that the increased amount was not too much of a burden on him.
Full judgment follows with important points in bold:
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*Court* : HIGH COURT OF JUDICATURE AT ALLAHABAD
*Brief* : : Maintenance allowance fixed in the compromise can be altered u/s
127 Cr.P.C.
*Citation : *
*Judgment :*
HIGH COURT OF JUDICATURE AT ALLAHABAD
A.F.R.
Court No. 1
Criminal Misc. Application No. 11923 of 2007
Ram Narayan Gupta Vs. Smt. Laxmi Devi and others
Hon'ble R.K. Rastogi,J.
This is an application filed under section 482 Cr.P.C. to quash the order
dated 10.5.2007 passed by the Principal Judge, Family Court, Varanasi in
complaint no. 247 of 2001 (Smt. Laxmi Devi and another Vs. Ram Narayan
Gupta).
I have heard learned counsel for the applicant and learned A.G.A for the
State.
Since the controversy involved in the case is legal one, I am deciding it on
merits at the admission stage.
The facts relevant for disposal of the application are that the opposite
parties no. 1 and 2 had filed an application under section 125 Cr.P.C.
against the applicant which was registered as petition no. 2026 of 1990 in
the court of Principal Judge, Family Court, Varanasi and in that case the
parties filed compromise on 11.7.1995 in which it was agreed that the
present applicant shall pay a sum of Rs. 500/- p.m. to his wife, present
opposite party no. 1, and Rs. 200/- to his daughter, present opposite party
no. 2. That case was decided in terms of that compromise vide order dated
12.7.1995. Thereafter, the present opposite parties no. 1 and 2 filed an
application for enhancement of the amount of maintenance under section 127
Cr.P.C. which was registered as complaint case no. 247 of 2001. It was
prayed in the application that the amount of maintenance payable to opposite
party no. 1 should be enhanced, from Rs. 500/- p.m. to Rs. 5000/-p.m. and
the amount payable to opposite party no. 2 from Rs. 200/-p.m. to Rs. 2000/-
p.m. thus claiming total amount of Rs. 7000/- p.m. The application was
contested by the present applicant and the Principal Judge, Family Court,
Varanasi, after hearing both the parties enhanced the amount payable to
present opposite party no. 1 from Rs. 500/- p.m. to Rs. 1000/-p.m. and the
amount payable to opposite party no. 2 from Rs. 200/- p.m. to Rs. 500/-p.m.
Aggrieved, with that order the applicant has filed this application under
section 482 Cr.P.C.
Learned counsel for the applicant made one submission only before the court.
He submitted that the earlier order of maintenance dated 12.7.1995 was
passed on the basis of the compromise entered into between the parties, and
so the court had no jurisdiction to make any alteration in the terms of that
compromise, and thus the application moved under section 127 Cr.P.C. was not
maintainable.
I do not agree with the above contention. It is to be seen that the earlier
compromise dated 11.7.1995 entered into between the parties had a binding
effect so far as the liability of the applicant to pay maintenance to his
wife and daughter (present opposite parties no. 1 and 2) was concerned. But
so far as the question of variation in the amount of maintenance is
concerned the court has got ample jurisdiction to alter the amount of
monthly allowance under section 127 Cr.P.C. taking into consideration the
rise in prices.
The contention of the applicant could have same force if any lump sum
payment had been made by way of permanent alimony vide the aforesaid
compromise dated 11.7.1995, and in that case after receiving the final
payment, the present opposite parties no. 1 and 2 could not raise any
further claim under section 127 Cr.P.C. But this is not the position in the
present case. The amount of Rs. 500/- p.m. was granted to opposite party no.
1 and of Rs. 200/-p.m. to opposite party no. 2 in the compromise reached in
the year 1995. There has been sufficient rise in prices since that date and
so the present opposite parties no. 1 and 2 moved an application under
section 127 Cr.P.C. for enhancement of the amount of maintenance and the
learned Principal Judge, Family Court, Varanasi, after hearing both the
parties allowed the application, taking into consideration the rise in
prices.
It is to be seen that the period of about 12 years has passed since the date
when the aforesaid compromise dated 11.7.1995 was entered into between the
parties, and there had been sufficient rise in prices during this period,
but the learned Principal Judge, Family Court, Varanasi adopting very
reasonable approach enhanced the amount payable to opposite party no. 1 from
Rs. 500/-p.m. to Rs. 1000/-p.m. and that payable to opposite party no. 2
from Rs. 200/-p.m. to Rs. 500/-p.m. It is also to be seen that opposite
party no. 2 was a child at the time when the compromise dated 11.7.1995 was
entered into between the parties but at present she is student of B.A. and
her expenses have increased. It is also to be seen that the applicant is now
posted as Manager of Gomti Gramin Bank and he is drawing salary of
Rs.18,500/-p.m. and after deduction of Rs. 4000/- from his salary he is
drawing net amount of Rs. 14,500/- p.m. He has been ordered to pay Rs.
1500/-p.m. only to opposite parties no.1 and 2 and this amount cannot be
held to be excessive.
Learned Principal Judge, Family Court, Varanasi has enhanced the amount, but
he has not clarified in the order as to from which date the enhancement
shall be effective. It is hereby clarified that It shall be enforced from
the date of order i.e. 10.5.2007.
However, as discussed above, there is no force in the plea of the applicant,
that the application for enhancement of the maintenance was not maintainable
in view of the compromise entered into between the parties on 11.7.1995.
The above contention of the learned counsel for the applicant is therefore,
rejected, and the order passed by the Principal Judge, Family Court,
Varanasi, enhancing the amount of maintenance from the date 10.5.2007 is
liable to be upheld.
Accordingly, the application under section 482 Cr.P.C. is rejected.