2019 Supreme(Chh) 529
IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR
ARVIND SINGH CHANDEL, J.
KAMLESH, SON OF BABU LAL CHANDRAKAR - Appellant
Versus
PARWATI, WIFE OF KAMLESH CHANDRAKAR - Respondent
Criminal Revision No. 27 of 2018, 379 of 2018
Decided on : 28-01-2019
Advocate Appeared:
Praveen Dhurandhar, Adv., Arvind Dubey, Adv.
Headnote:
Code of Criminal Procedure, 1973 - Section 127 and 125(4) - Maintenance - Evidence - Enhancement of amount of maintenance - Parties have been entered into a compromise and on basis of compromise, monthly maintenance was enhanced in favour of Smt. Parwati and from in favour of her minor son - Thereafter, who is husband and is arrayed above as Respondent in Criminal Revision No. and Applicant in Criminal Revision No. filed an application, being M.Cr.C. No. praying that orders passed in M.Cr.Cs. No. be set aside on ground that same have been passed without appreciating facts on record - It was further pleaded that his wife has sufficient source to earn as she has one house situated at Rajiv Nagar and has given said house on rent by which she is earning per month as rent and apart from that she is getting per month as pension - It was further alleged that wife is living in adultery therefore, she is not entitled for any maintenance - In her reply, denied averments made by husband – Held, it is only established that in year wife was leading an adulterous life with, but at time of decision of application under Section 125 of Cr.P.C., husband did not take this ground - At time of deciding application filed by wife also, husband did not raise this ground - After passing of the order on application under Section 125 of Cr.P.C, wife is leading an adulterous life, there is no evidence on record to this effect - Therefore, she is still entitled to get maintenance from husband - Husband is suffering from epilepsy and/or mental disorder, there is no evidence on record to this effect - Due to suffering from a disease he is unable to work, there is also no evidence on record to this effect - Husband has been unable to establish that the wife has given her house on rent and is getting rent per month from that house - Wife is still leading an adulterous life is also not established by husband - Therefore, no change is established in circumstances as a result of which maintenance granted to wife could be reduced - Criminal Revision No. preferred by husband is dismissed - Criminal Revision No. moved by wife is allowed and impugned order dated which relates to reduction of monthly maintenance of wife is set aside.
ARVIND SINGH CHANDEL, J.
1. Since both the revisions arise out of the common order dated 30.11.2017, they are disposed of together by this common order.
2. The instant revisions have been preferred against the order dated 30.11.2017 passed by the 1st Additional Principal Judge, Family Court, Durg in Miscellaneous Criminal Case No.75 of 2015.
3. Initially, vide order dated 29.6.2000 passed in M.Cr.C. No.309 of 1998, the Family Court granted monthly maintenance of Rs.350/- to Smt. Parwati arrayed above as Applicant in Criminal Revision No.379 of 2018 and Respondent in Criminal Revision No.27 of 2018 and that of Rs.350/- to her minor son. Thereafter, Smt. Parwati filed an application under Section 127 of the Code of Criminal Procedure for enhancement of the amount of maintenance which was registered as M.Cr.C. No.348 of 2012 in which the parties have been entered into a compromise on 14.2.2013 and on the basis of the compromise, monthly maintenance was enhanced from Rs.350/- to Rs.2,000/- in favour of Smt. Parwati and from Rs.350/- to Rs.1,000/- in favour of her minor son. Thereafter, Kamlesh, who is husband of Smt. Parwati and is arrayed above as the Respondent in Criminal Revision No.379 of 2018 and the Applicant in Criminal Revision No.27 of 2018 filed an application, being M.Cr.C. No.75 of 2015 under Section 127 of the Code of Criminal Procedure praying that the orders passed in M.Cr.Cs. No.309 of 1998 and 348 of 2012 be set aside on the ground that the same have been passed without appreciating the facts on record. He is suffering from mental disorder and the compromise had been done by putting pressure on him. It was further pleaded that his wife Smt. Parwati has sufficient source to earn as she has one house situated at Rajiv Nagar and has given the said house on rent by which she is earning Rs.10,000/- per month as rent and apart from that she is getting Rs.6,000/- per month as pension. It was further alleged that the wife is living in adultery, therefore, she is not entitled for any maintenance. In her reply, Smt. Parwati denied the averments made by husband Kamlesh.
4. The Family Court, after recording evidence and appreciating the evidence led by the parties, allowed in part the application filed by husband Kamlesh vide the impugned order dated 30.11.2017 and reduced the amount of monthly maintenance from Rs.2,000/- to Rs.1,000/- for wife Smt. Parwati.
5. Against the impugned order dated 30.11.2017, Criminal Revision No.379 of 2018 has been preferred by wife Smt. Parwati on the ground that husband Kamlesh could not bring his case within the parameters laid down under Section 125(4) of the Code of Criminal Procedure. Hence, she is entitled for maintenance. It has also been urged that without reasonable ground, the Family Court has reduced the amount of her maintenance.
6. Criminal Revision No.27 of 2018 has been filed by husband Kamlesh on the ground that the impugned order dated 30.11.2017 suffers from impropriety, perversity, incorrectness and is, therefore, not sustainable in the eyes of law. While allowing the application under Section 127 of the Cr.P.C. the Family Court ought to have set aside the order by which the maintenance was granted to wife Smt. Parwati. The Family Court erred in holding that in the application under Section 127 of the Cr.P.C. the grant of maintenance cannot be set aside.
7. I have heard Learned Counsel appearing for the parties and perused the record with due care.
8. Before the Family Court, the husband examined himself as Applicant Witness No.1 and Shatrughan Patel as Applicant Witness No.2. The wife examined herself as Respondent Witness No.1.
9. The first ground raised by the husband before the Family Court was that he is a patient of mental disorder and mirgi (epilepsy) and due to that he is unable to work and, therefore, he is unable to pay the maintenance. In this regard, the husband has submitted his statement under Order 18 Rule 4 of the Code of Civil Procedure wherein it has been