The main legal point established in the judgment is that the revisional court can enhance the maintenance allowance based on the present monthly income of the opposite party, even in the absence of specific pleading in the application under Section 125 of the Code of Criminal Procedure.

JUDGMENT

Bibek Chaudhuri, J. - Applicant of Misc Case No.109 of 2017 (T.R No.141 of 2017) being a proceeding under Section 125 of the Code of Criminal Procedure has challenged the legality, validity and propriety of an order dated 24th February, 2020 passed by the learned Judicial Magistrate, 4th Court, Serampore at Hooghly directing the opposite party/husband to pay maintenance allowance at the rate of Rs.6,000/- per month to the applicant from the date of the of the order on the ground that the learned Magistrate while fixing the quantum of maintenance failed to consider the monthly income of the opposite party. The learned Magistrate failed to appreciate the income of the opposite party who himself admitted his income to the tune of Rs.76,495/- and awarded inadequate maintenance to the tune of Rs.6,000/-.

2. The case of the petitioner is that the petitioner is the legally married wife of opposite party. Their marriage was solemnized on 3rd February, 2001 as per Hindu Rites and Customs. Their marital relation started deteriorating and on 5th March, 2015 the petitioner left her matrimonial home and started residing at her brother's house. During her stay, the opposite party did not pay a penny knowing well that the petitioner was suffering from tuberculosis.

3. At the time of filing of the application, the opposite party was designated as 'Assistant of LIC' having monthly income of Rs.60,000/- to which the opposite party claimed monthly maintenance allowance at the rate of Rs.10,000/-.

4. During pendency of the aforesaid maintenance case the petitioner used to receive a sum of Rs.3,000/- per month towards interim maintenance. An application under Section 6 of the Right to Information Act was sent by the petitioner dated 21st December, 2018 where it was informed that the opposite party's gross salary for the month of November 2018 was 76,495.73/-. At the time of hearing of the maintenance application the learned court below failed to consider the income of the opposite party and the basic as well as medical needs of the petitioner and awarded a meager amount of Rs.6,000/- vide order dated 24th February, 2020.

5. The petitioner made another application under Section 6 of the Right to Information Act to the Senior Branch Manager of LIC to which it was informed by a reply dated 10th August, 2021 that the gross salary of the opposite party for the month of July 2021 was Rs.1,16,628.42/-.

6. The petitioner now prays for enhancement of her maintenance at the rate of more than Rs.10,000/- per month without amending the prayer portion.

7. The only issue involved in the revision is as to whether the revisional court can pass an order enhancing quantum of maintenance allowance considering the present monthly income of the opposite party in the absence of such pleading in the application under Section 125 of the Code of Criminal Procedure.

8. Learned Advocate for the petitioner submit that in her application under Section 125 of the Code of Criminal Procedure the petitioner made a specific statement stating, inter alia, that the opposite party/husband is an employee of Life Insurance Corporation of India and earns more than 60,000/- per month. During pendency of Misc Case No.109 of 2017, the petitioner filed a report which she obtained on filing of an application under Section 6 of the Right to Information Act to show that the gross salary of the opposite party was Rs.76,495.73/-. The learned Magistrate in the impugned judgment accepted the said report in view of Section 58 of the Evidence Act as proof of income of the opposite party. It is contended by the learned Advocate for the petitioner that the petitioner being the legally married wife of the opposite party is entitled to get at least 1/3rd of the monthly income of her husband as maintenance allowance. Without considering such aspect of the matter, the learned Magistrate arbitrarily fixed monthly maintenance allowance at the rate of Rs.6,000/- per month for the petitioner.

9. The learned A