Maintenance enhancement under Section 127 justified due to changes in living costs and the child's needs.

1. Heard Mr. P. Kalita and Ms. S. Goswami, learned counsel for the appellant. Also heard Mr. P.S. Bhattacharyya, learned counsel for the respondent.

2. The appellant is before this Court in this appeal assailing the order dated 13.2.2018 passed in Misc. Case No.624/2017. Through the said order, the Court below has enhanced the payment of maintenance to the wife and daughter of the appellant. The respondent wife was before the Court below in an application filed under S.127 of the Code of Criminal Procedure seeking enhancement of the maintenance which had been granted earlier for her benefit and for the benefit of the daughter. The Court below having taken into consideration the fact that the maintenance was last granted through the order dated 18.5.2015, was of the opinion that the same is required to be enhanced keeping in view the cost of living. Accordingly, in respect of wife, the maintenance which was at Rs.1,400/- per month, was enhanced to Rs.2,500/- and the maintenance for the daughter, which was at Rs.600/-, was enhanced to Rs.2,000/- per month. In total, the maintenance payable by the appellant is at Rs.4,500/-. The appellant, therefore, claiming to be aggrieved is before this Court in this appeal.

3. Learned counsel for the appellant while assailing the order passed by the Court below would contend that the manner in which the enhancement is made by the Court below is not justified. At the outset, he contends that the actual income of the appellant is required to be determined and, therefore, the quantum of maintenance by way of enhancement is not justified as the said exercise has not been done. It is also contended that even if the cost of living / expenses having been increased is taken into consideration, the percentage of enhancement as granted is unreasonable and, therefore, the order is liable to be set aside.

4. Learned counsel for the respondent would, however, seek to sustain the order passed by the Court below.

5. In that light, considering that the application before the Court below in Misc. Case No.624/2017 was under S.127 of the Code of Criminal Procedure , and since at the earlier instance the applications filed under S.125 of the Code of Criminal Procedure as also under S.127 of the Code of Criminal Procedure , have been consideration and allowed, the basic question with regard to entitlement of the respondent to maintenance from the appellant need not be adverted to in this appeal. The only issue for consideration is as to whether the quantum of enhancement as granted is justified.

6. In that regard, the Court below has taken note of the earlier order dated 18.5.2015 passed in Misc. Case No.689/2013. Since at the present juncture, the cost of living having increased is taken into consideration, the Court below was of the opinion that an enhancement is required to be made. Insofar as the income of the appellant, the respondent - wife has contended that he has sufficient income as he is functioning as a LIC agent. Though the appellant has denied that he is not doing agency work at present and the monthly income as claimed by the respondent is not justified, no material was placed on record to indicate his actual income. However, the very statement of the appellant that he is earning Rs.10,000/- was taken note of by the Court below and, in that light, the maintenance was enhanced providing for all the three of them. In that circumstance, even if the said amount of Rs.10,000/- is taken into consideration, the total enhancement of Rs.4,500/- to the wife and the daughter cannot be considered as excessive when an equitable distribution is made.

7. Further, with regard to the contention that percentage of enhancement is on the higher sid