Neelam v. Yashpal

1. This revision petition is directed against the order dated 15.01.2018, passed by the learned Family Court, Karkardooma Court, Shahdara District in C.C.No.92/2017, wherein the learned Family Court has enhanced the maintenance from Rs.2,000/- per month to Rs.5,000/- per month from the date of the order i.e. 15.01.2018. The revisionist is the wife challenging the increase of Rs.3,000/- contending that sum of Rs.5,000/- awarded to her is meagre to maintain herself.

2. Material on record shows that the marriage of the petitioner and the respondent was solemnized on 29.04.2004. Out of the wedlock a female child was born in April, 2005. The petitioner filed a petition under Section 125 Cr.P.C claiming maintenance contending that the family members of the respondent are harassing her and torturing her for bringing less dowry and that they have thrown her out of the house. It is alleged that the respondent had deserted the petitioner without any reasonable cause. The petitioner in her petition under Section 125 Cr.P.C stated that the total monthly income of 2021:DHC:890 the respondent is Rs.25,000/-. The petitioner claimed a maintenance of Rs.10,000/- per month from the respondent.

3. The learned Metropolitan Magistrate, Mahila Court, Karkardooma Courts, Shahdara, by an order dated 24.06.2013, in C.C.No.230/2013 found that the allegation that the respondent has deserted the petitioner and that the respondent has neglected to maintain her is correct. The Metropolitan Magistrate also held that the petitioner herein has no source of income, a fact which has not been challenged by the respondent. The learned Metropolitan Magistrate while deciding the issue regarding the financial status of the respondent herein came to a conclusion that neither is there any documentary evidence on record nor any witness has been examined to prove that the respondent was earning more than Rs.25,000/- per month. The Metropolitan Magistrate fixed the income of the respondent at Rs.8,000/per month, which was the wage for a skilled labourer as per the Minimum Wages Act at that time and directed the respondent herein to pay a sum of Rs.2,000/- as maintenance from the date of the order i.e. 24.06.2013.

4. The petitioner filed an application under Section 127 Cr.P.C in Novermber, 2015, claiming enhancement of maintenance. In the application under Section 127 Cr.P.C it is stated that the petitioner is completely bedridden and is only able to move around on a wheelchair and that too only with the support of her family members. It is stated in the application that the respondent is earning about Rs.25,000/- per month from his hotel. It is alleged that the respondent is also running hundred rickshaws and has income from agricultural land. It is stated in the application that the respondent is earning about Rs.2,50,000/- per month. The respondent herein in his reply to the petition under Section 127 Cr.P.C had stated that he had suffered an accident for which he had borrowed a loan of Rs.1,50,000/- from his employer and that he was working as a driver and getting a net salary of Rs.5,000/- per month. The learned Family Court had directed the respondent to produce the documents of the charge-sheet to show how much injuries he had suffered in the alleged accident that he had to take a loan of Rs.1,50,000/- for medical treatment. The learned Family Court found that it is very hard to survive on a meagre income of Rs.2,000/- per month with increasing prices of essential goods and therefore there is a need to increase the maintenance amount. Since the respondent did not produce any document the learned Family Court drew adverse inference against the respondent herein. However, since the petitioner could not produce any material to substantiate the contention that the petitioner was earning any amount from the hotel or has hundred rickshaws or has income from agricultural land, the learned Family Court fixed the salary of the respondent at Rs.13,350/- per month which was the wage of an unskilled worker under the Minimum Wages Act at that time. The learned Family Court after taking into consideration the notional income of the respondent, his liability to maintain his minor daughter who is living with the respondent, present day of cost of living etc., enhanced the maintenance of the petitioner from Rs.2,000/- per month to Rs.5,000/- per month from 15.01.2018. It is this order which is under challenge in the instant revision petition.

5. This Court by an order dated 31.10.2018, referred the parties to arrive at a mutual settlement before the Delhi High Court Mediation and Conciliation Centre. The Mediation Report shows that despite several sessions that were conducted by the Mediator, no compromise could be arrived at and the Mediation failed.

6. Heard Ms. Anu Narula, learned counsel appearing for the petitioner and Ms. Mallika Parmar, learned counsel appearing for the respondent and perused the documents.

7. Ms. Anu Narula, learned counsel for the petitioner very vehemently contends that the petitioner is bed ridden and can move only on a wheelchair and that too with the help of other family members. She states that the learned Family Judge ought to have taken into account the fact that the respondent runs a hotel and earns several lakhs of income. She would state that after drawing adverse inference against the respondent in not producing the medical certificate the learned Family Court ought not to have fixed the income of the respondent at Rs.13,350/- per month as he is earning much more than Rs.13,350/- per month.

8. A perusal of the record shows that other than making an allegation that the respondent is having a hotel and that he owns hundred rickshaws and has earnings from agricultural land also, nothing has been produced by the petitioner to substantiate the same. The petitioner has not even cared to file interrogatories calling upon the respondent to produce materials. In the absence of any material, the findings of the learned Family Court in the impugned judgement, fixing the income of the respondent on the basis of wages payable to an unskilled worker cannot be found fault with.

9. Ms. Anu Narula, learned counsel for the petitioner, has taken this Court to the Bank Statement filed by the petitioner before the Family Court and relies on a transaction dated 25.05.2015, showing deposit of Rs.35,000/. She would state that a person earning an income of Rs.5,000/- could not deposit Rs.35,000/- in his account. She therefore states that the order of the Family Court must be set aside. This Court is not in a position to accept the contentions of Ms. Narula, learned counsel for the petitioner. These entries alone do not make out a case warranting interference by this court while exercising its jurisdiction under Section 397/401 Cr.P.C. Nothing has been brought on record to substantiate as to why the judgement dated 15.01.2018, ought to be interfered with.

10. The scope of the revision petition under Sections 397/401 Cr.P.C. read with Section 482 Cr.P.C. has been explained in Amit Kapoor v. Ramesh Chander, (2012) 9 SCC 460, the Supreme Court observed as under:

11. However this Court finds that while awarding maintenance under Section 125 Cr.P.C the Family Court has directed the payment of maintenance only from the date of order i.e. 15.10.2018 and not from the date of the petition under Section 127 Cr.P.C. The Apex Court in Rajnesh v. Neha, (2021) 2 SCC 324, has categorically laid down that an order of maintenance has to become payable from the date of filing of the petition. The Supreme Court in Rajnesh v. Neha (supra), observed as under: