IMPORTANT POINT
The main legal point established in the judgment is the determination of maintenance allowance based on the husband's income and the wife's capacity to earn, in accordance with the provisions of Section 125 and Section 127 of the Criminal Procedure Code.

JUDGMENT :

By means of the instant criminal revision, revisionist has assailed the judgement and order dated 01.11.2022 passed by Principal Judge, Family Court, Amroha in Case No.05 of 2019 (Smt. Rakhi vs. Amit Kumar), under Section 125 Cr.P.C., Police Station Amroha, District Amroha.

2. By the impugned order, the trial Court has granted monthly maintenance allowance of Rs.5,000/- to the revisionist from the date of presentation of application under Section 125 Cr.P.C. The revisionist has prayed for enhancement of maintenance allowance granted by the trial Court in her favour. The opposite party No.2 has not challenged the aforesaid impugned order, therefore, findings in the impugned judgment and findings regarding the marriage of the revisionist with opposite party No.2 as well as there being sufficient reason for her residing away from the opposite party No.2, has become final.

3. It has been submitted by the learned counsel for the revisionist that this criminal revision has been filed on the point of quantum of maintenance payable to the revisionist contending that it is quite meagre considering the monthly net income of the opposite party No.2 (husband). The averments have been made on behalf of the revisionist that admittedly opposite party No.2 is working in Indian Navy and he is getting monthly salary of about Rs.35,000/- to 40,000/- per month. The trial Court may have fixed at-least 25 % of the net monthly salary of the opposite party No.2, but trial Court has awarded maintenance allowance of Rs.4000/- till date of order, and thereafter, Rs.5000/-, which is on the lower side. It has also been submitted that trial Court has not given any reason for fixing aforesaid monthly maintenance allowance payable to the revisionist. It has also been submitted that earlier trial Court vide judgment and order dated 11.02.2020 had ex-parte granted Rs.12,000/- per month as interim maintenance allowance to the revisionist. Later on, recall application under Section 126 (2) Cr.P.C. was filed by the opposite party No.2, which was allowed and there is no ground to provide the revisionist lesser monthly maintenance allowance than the interim one, since the trial Court passed the impugned judgment and order without considering the evidence on record and without applying judicial mind it should be enhanced.

4. Per contra, learned counsel for the opposite party No.2 has submitted that trial Court has passed the impugned judgment and order on the basis of oral and documentary evidence on record and there is no ground to make interference into it. It has also been submitted that interim maintenance was passed ex-parte without considering the contentions raised by the opposite party No.2. The trial Court has rightly granted a reasonable maintenance allowance, which is not liable to be altered.

5. Learned counsel for the opposite party No.2 has raised objection about the maintainability of the criminal revision and contended that the revisionist should have filed an application under Section 127 Cr.P.C. in the trial Court itself for enhancement of the amount of monthly maintenance allowance. It has also contended that since there is a statutory provision for enhancement of the amount of maintenance allowance under Section 127 Cr.P.C., the criminal revision for such enhancement is not maintainable in this Court.

6. Heard Sri Jayant Kumar, learned counsel for the revisionist, learned A.G.A. for the State and Sri Sandeep Kumar Srivastava, learned counsel for opposite party no.2.

7. The revisionist has filed instant criminal revision for enhancement of the amount of monthly maintenance allowance not on the ground of change of circumstances, since the order was passed but on the ground that the trial court while fixing the amount of monthly maintenance allowance has not considered the evidence on record, therefore, order passed is illegal or liable to be altered.

8. Learned counsel for the opposite party No.2 has raised preliminary objection as per jurisdict