CHANDRA KUMARI Vs. MAHIPATSINH KALUBHA RANA

JUDGEMENT

(1.) THE petitioner is the wife of opponent No. 1. It is an undisputed position that in the year 1977 in Criminal Misc. Application No. 59 of 1977 filed by the petitioner -wife under the provisions of Section 125 of the Criminal Procedure Code it was directed that the opponent - husband should pay an amount of Rs. 80/ - per month. That order was passed on September 14, 1977. Thereafter the petitioner filed Criminal Misc. Application No. 67 of 1980 and prayed that the amount of maintenance be raised to Rs. 200/ - per month. This application was filed under the provisions of Section 127 of the Criminal Procedure Code. The opponent -husband is resisted the application and contended that an amount of Rs. 80/ - directed to be paid to the petitioner -wife was sufficient for her maintenance. The Trial Court took into consideration the evidence led by the parties and the arguments advanced by both the sides and held that the amount of Rs. 80/ - directed to be paid in the year 1977 was not sufficient for maintenance of the petitioner -wife and enhanced the amount of maintenance of Rs. 125/ - per month. The Trial Court delivered the judgment on January 7, 1982. It is against this judgment and order passed by the Trial Court that the petitioner - wife has preferred this Criminal Revision Application and has prayed that the amount of maintenance should be raised to Rs. 200/ - per month as prayed for by her in the application.

(2.) IT is an admitted position that the opponent -husband has 16 acres of agricultural land as discussed in para 9 of the judgment of the Trial Court. The father of the opponent has 80 acres of land. It is not clear as to how many members of the family are there. But it appears that there are other brothers also and as discussed in the judgment of the Trial Court, each of the brother of the opponent -husband has got 16 acres of land. It was the case of the petitioner -wife that the opponent -husband had income from the business of milk also. According to her, the opponent -husband was earning Rs. 18,000/ - from agricultural land and was earning additional amount from the business of milk. As against the aforesaid evidence of the petitioner -wife the opponent has not produced any material on record to show that he was not earning sufficiently from the land of his ownership which was 16 acres in all. Even if one estimates the agricultural land income at Rs. 1,000/ - per acre, the income of the opponent -husband would come to Rs. 16,000/ - per year. It may be noted that this is a land situated at village Lakhamsi, Taluka Chotila, Taluka Chotila is near Rajkot. In absence of any documentary evidence or oral evidence led by the opponent -husband regarding the income received by him from agricultural land and other business, rough estimate has got to be made and that the income of Rs. 1,000/ - per acre can reasonably be estimated. However, in view of the fact that the petitioner -wife has not claimed anything more than Rs. 200/ - per month, further discussion on the point is not necessary. The fact remains that there is a considerable change in the circumstances since the earlier order granting maintenance at the rate of Rs. 80/ - per month was passed on September 14, 1977. The petitioner -husband belongs to Garasia community and the opponent -wife appears to be the member of Girasiar family. The petitioner's father has 80 acres of land in his own name. This is an admitted position. Keeping in view this status of the opponent -husband in the society, the petitioner -wife must be awarded atleast Rs. 200/ - per month so that she can live as per the standard of the family of the opponent -husband. Had the Trial Court tried to ascertain the income from the agricultural land, the Trial Court would have surely come to the conclusion that atleast the agricultural income would be around Rs. 15,000/ - per year, if not moved. In above view of the matter the order passed by the Trial Court, granting Rs. 125/ - per month only to the petitioner - wife as and by way of maintenance is required to be modified.

(3.) IN the result the revision application is allowed. The judgment and order passed by the Trial Court enhancing the amount from Rs. 80/ - to Rs. 125/ - per month from the date of the order (i. e. January 7, 1982), is modified and the opponent -husband is directed to pay the amount to Rs. 200/ - per month to the petitioner -wife from the date of the order passed by the Trial Court (i. e. January 7, 1982). However, it is directed that the amount of arrears of Rs. 75/ - per month commencing from January 7, 1982 shall be paid by the opponent -husband in twelve equal monthly instalments. The amount of arrears shall be paid in twelve equally monthly instalments together with the amount of maintenance at the rate of Rs. 200/ - per month from October, 1985 onwards. The amount of arrears shall be paid in such a way that the entire amount of arrears shall get wiped out by October, 1986. Thereafter the opponent -husband shall continue to pay only Rs. 200/ - per month to the petitioner -wife. However, it may be clarified that it would be open to the petitioner -wife to file further application under Section 127 of the Criminal Procedure Code if there are circumstances warranting for further modification of the order of maintenance. Rule made absolute to the aforesaid extent. Revision allowed.