Jayashree Tiwari, J.;-

Case called out in the revised list. Both learned counsel for the parties are present. Heard learned counsel for the parties.

2. Present revision has been filed by the wife challenging the order dated 15.7.2009 whereby her application under Section 127 Cr.P.C. for enhancement of the maintenance allowance in accordance with the subsequent change in the financial condition of the husband has been allowed and only an amount of Rs.500/- in addition to Rs.200/- which she was granted previously has been enhanced.

3. The crux of the objection raised by learned counsel for the revisionist is that learned lower court has admitted and had come to the conclusion that undoubtedly the salary of the O.P. is Rs.29,000/- per month as shown in paper no.40-B but learned lower court has observed that he has to retire in June, 2008. Learned lower court has enhanced only Rs.500/- per month in the maintenance allowance under Section 127 Cr.P.C. application from Rs.200/- to i.e. in all Rs.700/-.

4. A bare perusal of the order shows that the observations have been made by learned lower court that the revisionist is spending Rs.8,000/- to Rs.10,000/- per month on her treatment. Learned lower Court has held that without disclosing the source of earning, the income of the applicant is to be presumed to be Rs.10,000/- per month. Onus lies on the husband to prove that the revisionist has resources to maintain herself and the husband must give positive evidence regarding those sources as well the income from them but here it appears that learned lower court has presumed only keeping in view the fact that she was spending Rs.8,000/- to Rs.10,000/- on her treatment and presumed her income to be more than Rs.10,000/- without any authentic evidence of income. Mere presumption in this regard is not appropriate. More so, if there are sufficient resources for the wife to maintain herself, there was no reason to enhance the maintenance allowance Rs.200/- to Rs.700/-. In such case, the maintenance allowance ought to have been refused but this is not the case. Learned lower Court has, thus, committed error in appreciating the evidence and also failed to appreciate the financial condition of both the parties when admittedly the income of the husband is Rs.29,000/- per month and there was no occasion to grant such small maintenance allowance of Rs.700/- per month when salary of the O.P. is Rs.29,000/- per month. The matter requires consideration and is liable to be quashed. Accordingly, the order passed by learned lower court is quashed and the matter is remanded back to the learned lower court for reconsideration after hearing both the parties and after consideration of authentic evidence adduced by both the parties. Learned lower court shall hear the matter as directed and shall pass a well reasoned speaking order in the light of provisions initiated with regard to the maintenance and enhancement of the maintenance allowance under Section 127 Cr.P.C..

5. The revision is allowed. The matter is remanded back to learned lower court for passing fresh order as directed above. The file be sent back to learned lower court forthwith and the parties shall appear before the learned lower court on 30.9.2011.

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