The Family Court also observed that the
applicant had failed to bring salary certificate of the respondent on
record. This view of the Family Court is not in accordance with law.
It is one of the cardinal principles of the rules of evidence that all
evidence is to be appreciated by keeping in mind the means available
to a party to establish a fact asserted by him/her, or to refute a fact
asserted by his/her adversary. In this case, the applicant had stated
on oath that the respondent was getting a net salary of Rs.20,000/-
p.m. and it was quite easy for the respondent to refute this fact by
producing his salary certificate on record. While appreciating the
evidence in that regard, the fact that the respondent had easy and
assured means to refute the claim, but he did not attempt to do so,
was required to be taken into consideration.
The observations of the Family Court that the rise in the
7.
prices of essential commodities was for both the parties and not for
the applicant alone, also cannot be appreciated. That, burden of rise
in the prices of essential commodities falls on both the parties cannot
be a ground to refuse to enhance the maintenance, as increase in the
rise of prices would ordinarily lead to increase in the salary or
income of the respondent. Therefore, if the amount which a husband
was earlier paying to his wife as and by way of maintenance is not
increased in proportion to the husband’s increased income on
account of rise in the cost of living, then, it would in effect, amount
to reducing the amount of maintenance.
In my opinion, the Family Court has not considered the
matter in proper perspective.
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
CRIMINAL REVISION APPLICATION NO.125 OF 2013
Kalabai w/o Bhausaheb Khillare,
VERSUS
Bhausaheb s/o Sampat Khillare,
CORAM : ABHAY M. THIPSAY, J.
Dated : September 03, 2013
Citation; 2013 ALL M R (CRI)3927 bombay
1.
Heard.
By consent, admitted and taken up for final
hearing forthwith.
The applicant is the wife of the respondent.
She was
2.
awarded maintenance @ Rs.700/- p.m. by the Family Court at
Aurangabad. Lateron, on her application made under the provisions
of Section 127 of the Code of Criminal Procedure, the Family Court
enhanced the same to Rs.900/- p.m. by an order dated 16.7.2008.
The applicant once again applied to the Family Court for
enhancement of the maintenance amount by an application bearing
No.102/2010, which was rejected by the Family Court by an order
dated 5.6.2013. Being aggrieved thereby, the applicant has
approached Court
by
filing
present
Criminal
Revision
Ordinarily, as orders passed under section 125 of the
3.
Application.
this
Code and under section 127 of the Code do not decide the civil rights
of the parties, finally,
this Court would not interfere with such
orders in revisional jurisdiction. However, when it would appear that
the relevant aspects are kept out of consideration by the Family
Court or that, it has acted on irrelevant considerations, then the
revisional jurisdiction, which is wide, would need to be exercised.
4.
Mr.A.P.Bhandari, the learned counsel for the applicant
submitted that the order passed by the Family Court is not proper or
legal. He submitted that the application was made on the ground
that, due to inflation, the cost of living had considerably increased
and that, the applicant was required to incur much more expenditure
than she was required to incur when the initial order of maintenance
and first enhancement thereof was passed by the Family Court. He
also submitted that the respondent was getting a net salary of Rs.
The respondent had opposed the application by filing a
5.
20,000/- p.m.
statement in writing before the Family Court. He had denied that he
was getting a net salary of Rs.20,000/- p.m. He, however, did not
mention as to how much salary he was getting.
Since in the course of arguments the learned counsel for
6.
respondent did not seriously object for remanding of the matter back
to the Family Court, I do not intend to discuss the order passed by
the Family Court in details. It however needs to be observed that the
Family Court focused mainly on the truth of the claim of the
applicant that she is required to pay house rent @ Rs.1200/- p.m.,
and perhaps, therefore, did not take into consideration the other
aspects of the matter.
The Family Court also observed that the
applicant had failed to bring salary certificate of the respondent on
record. This view of the Family Court is not in accordance with law.
It is one of the cardinal principles of the rules of evidence that all
evidence is to be appreciated by keeping in mind the means available
to a party to establish a fact asserted by him/her, or to refute a fact
asserted by his/her adversary. In this case, the applicant had stated
on oath that the respondent was getting a net salary of Rs.20,000/-
p.m. and it was quite easy for the respondent to refute this fact by
producing his salary certificate on record. While appreciating the
evidence in that regard, the fact that the respondent had easy and
assured means to refute the claim, but he did not attempt to do so,
was required to be taken into consideration.
The observations of the Family Court that the rise in the
7.
prices of essential commodities was for both the parties and not for
the applicant alone, also cannot be appreciated. That, burden of rise
in the prices of essential commodities falls on both the parties cannot
be a ground to refuse to enhance the maintenance, as increase in the
rise of prices would ordinarily lead to increase in the salary or
income of the respondent. Therefore, if the amount which a husband
was earlier paying to his wife as and by way of maintenance is not
increased in proportion to the husband’s increased income on
account of rise in the cost of living, then, it would in effect, amount
to reducing the amount of maintenance.
In my opinion, the Family Court has not considered the
matter in proper perspective.
8.
However, for want of sufficient
material on record, it would not be possible for this Court to decide
whether the amount of maintenance should be increased and if so,
The matter is, therefore,
how much should be the enhancement.
required to be remanded back to the Family Court for a fresh
consideration, for which, as aforesaid the learned counsel for the
9.
respondent has no objection.
One contention which has been raised by the learned
counsel for the respondent at the conclusion of the hearing needs to
be mentioned herein. He submitted that considering the place of
residence of the applicant and respondent, the Family Court had no
jurisdiction to entertain the application and that the application for
enhancement of the maintenance amount would lie before the
learned Magistrate at Khultabad. He, however, does not dispute that
original order awarding the maintenance was passed by the Family
Court and even the order enhancing the same, as
earlier, Court
was
passed
by
the
Family
was done
itself.
Nevertheless, it is made clear that in case he raises the issue of
jurisdiction of the Family Court, the Family Court shall consider the
10.
same in accordance with law.
In the ultimate analysis, the impugned order needs to be
set aside.
11.
The revision application is partly allowed.
The impugned order is set aside.
The matter is remanded back to the Family Court for a
fresh consideration of the application for enhancement of the
maintenance, as made by the applicant.
.
The learned Judge of the Family Court, if she thinks it fit,
may call upon the parties to adduce further evidence in support of
their respective contentions, if so desired by them.
.
The learned Judge shall expedite the hearing of the
application and dispose it of, in any case, within a period of TWO
MONTHS from the date of receipt of order of this court.
The parties shall appear before the Family Court on
23.9.2013.
In the circumstances, no order as to costs.
12.
Revision application is disposed of in the aforesaid
terms.
(ABHAY M. THIPSAY)
JUDGE.
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