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2014 Supreme(Gau) 1019
Gauhati High Court
C.R. Sarma, J.
Anupal Kalita - Appellant
Versus
Shikha Medhi Kalita - Respondent
Crl. Pet. No.643 of 2014
Decided On : 31-10-2014
For the Petitioner: Mr. P. Roy, Mr. I. Alam and Mr. T. S.K.
For the Respondent: Mr. A.K. Bhattacharjee and Mr. D.K. Bhattacharrya.
Headnote:
Code of Criminal Procedure, 1973 - Section 127 and 482 - Criminal Petition - Challenged the correctness and legality of the order - Heard learned Sr. Counsel, assisted by learned Counsel, appearing for the petitioner - Learned Sr. Counsel, has contended that, notwithstanding the amendment brought by the amendment in respect of Section 127, the Code of Criminal Procedure there can’t be enhancement of maintenance allowance more than at a time - Held, Husband 2nd party i.e. the present petitioner and his Counsel were absent - Accordingly, the Court fixed the case, for order - In view of the above, as the petitioner failed to file written objection and also to cross examine the petitioners witnesses, despite granting many opportunities, the learned Magistrate, considering the price rise, the hardship faced by the wife petitioner and the cost of education of the child, enhanced the allowance at the rate in favour each of the wife petitioner and their child, in addition to earlier amount each, and thus, fixed the total amount at rupees five thousand - From the above, it appears that the learned Magistrate granted sufficient opportunities to the petitioner to file written objection and also cross examine the witnesses, by granting several adjournments, but the petitioner failed to avail the said opportunities - Therefore, the learned Magistrate was left with no other option except passed necessary order - Court found that the learned Magistrate, as well as the learned Sessions Judge applied their judicial mind and passed reasoned order - Petition dismissed.
2. In view of the said law point, raised by the petitioner, regarding ceiling of enhancement of maintenance allowance and in order to arrive at a correct decision, this Court requested Mr. A.K. Bhattacharjee, learned Sr. Counsel to assist this Court. Mr. Bhattacharjee, learned Sr. Counsel, graciously accepted the request and rendered his valuable assistance by highlighting the consequence of the amendment in respect of Section 127 Cr.P.C.
3. By this criminal petition, filed under Section 482 Cr.P.C., the petitioner, who is the husband of the opposite party, has challenged the correctness and legality of the order, dated 05.06.2014, passed by the learned Sessions Judge, Morigaon, in Criminal Petition No.74/2013, whereby the learned Sessions Judge, while dismissing the revision, filed by the petitioner, upheld the order, dated 15.11.2013, passed by the learned SDJM (S), Morigaon, thereby allowing enhancement of the maintenance allowance from Rs.2000/- per month to Rs.5000/- per month in favour of the opposite party wife and their child.
4. The opposite party, i.e. the wife of the present petitioner, initiated a proceeding under Section 125 Cr.P.C. seeking maintenance allowance for herself and their minor child from her husband i.e. the petitioner. The application was registered as M.R. Case No. 278/2012 and the learned C.J.M., Morigaon, by judgment and order, dated 31.12.2009, while rejecting the prayer of the wife opposite party, granted maintenance allowance of Rs.2000/- per month in favour of the child and the petitioner continued to pay the same.
5. Aggrieved by the said order, the opposite party (wife) preferred a revision, being Criminal Petition No. 2/2010 and the learned Sessions Judge by his order, dated 13.07.2010, while allowing the revision, granted maintenance allowance @ Rs.1000/- each in favour of the mother and the child. Accordingly, the petitioner continued to pay the same.
6. The opposite party, in view of price rise and increase in the requirement, including the education her daughter, by filing an application, under Section 127 Cr.P.C., prayed for enhancement of the maintenance allowance. This petition has been registered as MR Case No. 278 of 2012 and notice was issued to the petitioner, who used to serve in the Indian Army. Though, the petitioner, initially took steps and prayed for time to file written objection, he failed to appear or file any written statement, despite granting sufficient time for the same.
7. Therefore, the learned Magistrate, by order, dated 15.11.2013, passed in MR No. 278/2012, allowed enhancement of maintenance allowance @ Rs.1500/- each and thus enhanced the total maintenance allowance of Rs.2000/- p.m. to Rs.5,000/- p.m.
8. Aggrieved by the enhancement, the petitioner challenged the said order by filing a revision petition, being Crl. Revn. No. 74/2013, and the learned Sessions Judge, Morigaon, by the impugned order, upheld the said order of enhancement.
9. Dissatisfied with the said order, the petitioner, by this Crl. Ptn. filed under Section 482 Cr.P.C., has challenged the order aforesaid.
The grounds taken by the petitioner are as follows:-
(i) That the Courts below committed error of law by enhancing the allowance by Rs.1500/- in contravention of the statutory provision, provided by Section 127(1) Cr.P.C., inasmuch as, as per the proviso to the said Section, the enhancement can't exceed Rs.500/- at a time.
(ii) That the Courts below failed to appreciate that the opposite party was regularly getting @ Rs.2000/- per month and that the trial Court committed error by
