Maintenance which is fixed by compromise can be enhanced

 I have carefully gone through the document at Exh. 'A'. 

Though it appears that this document was executed as and by way of full 

and final settlement between the parties, it does not categorically state that the monthly amount payable by the petitioner to the respondent 

would not be enhanced at any time. In my opinion, in case of even full and final settlement, which consists of periodical payments to be made 

by one party to the another for an indefinite period,the cognizance of the increase in the cost of living and the increase in the income of the party, who is to pay the sum, can very well be taken into consideration. The initial amount of ` 1,500/- [Rupees One Thousand Five Hundred only] was fixed in the year 2000. The enhancement has been granted in the Considering the increase in the salary and the rising prices,in year 2010.

actually there has been no increase, and the amount that is now enhanced, would be roughly the same as the respondent was expected to 

get every month by virtue of the said settlement or compromise. 

Bombay High Court

Shaikh Rabbani S/o Shaikh Razak
V/s

Sow. Farjana Begum W/o Shaikh Rabbani .. on 5 September, 2013

Bench: A.M. Thipsay1
Citation;2013 ALL M R (cri) 3906

1. Heard.

2. ' Rule '.

om

3. By consent, heard finally at the stage of admission itself.

4. The petitioner is the husband of the respondent. He is B

aggrieved by the order dated 07/09/2010 passed by the Judicial Magistrate First Class, Patoda, Dist. Beed, enhancing the amount of maintenance payable by the petitioner to the respondent to ` 2,500/- [ Rupees Two Thousand Five Hundred only ] per month from ` 1,500/- [ Rupees One Thousand Five Hundred only ] per month. The petitioner ::: Downloaded on - 07/09/2013 22:52:04 ::: 2 Crim.W.P. 1177.2011 had approached the Court of Sessions by filing an application for revision rt

of the said order, but, even the revision came to be dismissed. Under these circumstances, the petitioner has approached this Court invoking ou

its constitutional jurisdiction.

C

5. Mr. K.J.Suryawanshi, the learned counsel for the petitioner raised only one contention. According to him, the respondent was not h

entitled to seek any enhancement of the maintenance amount, as the ig

amount had been fixed pursuant to the compromise arrived at by and between the parties in the year 2000 itself. He submitted that the terms H

of the compromise were filed in the Court of the Magistrate and accepted by both the parties. He, therefore, submitted that in view of the fact y

that the question of maintenance had been fully and finally settled by ba

and between the parties, the respondent was not entitled to seek enhancement of the amount of maintenance, that was agreed upon as om

per the terms of the compromise arrived at between the parties. According to him, this aspect of the matter has not been taken into B

consideration either by the learned Magistrate or by the learned Sessions Judge.

6. I have carefully considered this aspect of the matter. ::: Downloaded on - 07/09/2013 22:52:04 ::: 3 Crim.W.P. 1177.2011

7. The document containing the written terms of compromise rt

arrived at between the parties is annexed to the petition as and by way of Exh. A. It does appear that as per clause No. 3 of the document ou

[ Exh. A ], the petitioner had agreed to pay an amount of ` 1,500/- [ Rupees One Thousand Five Hundred only ] per month as and by way of C

maintenance to the respondent herein. Clause No. 3 says that the said amount of maintenance would be paid between the first date and 9th h

date of every month.

ig

8. Indeed, it does appear that the parties had accordingly H

agreed.

y

9. The question is, however, whether this clause or this ba

agreement, reflected in the said clause, would prevent the petitioner from claiming enhanced amount of maintenance for ever and irrespective om

of other relevant factors.

B

10. It would be necessary to see how the learned Magistrate and the learned Sessions Judge have dealt with this aspect of the matter. In para No. 7 of his order, the learned Magistrate observed that, he was taking judicial notice of the inflation and the fact that the cost of living has gone up considerably.

::: Downloaded on - 07/09/2013 22:52:04 ::: 4 Crim.W.P. 1177.2011

11. The learned Additional Sessions Judge observed that, the rt

salary of the petitioner must have been increased considerably due to the implementation of 6th Pay Commission and that the petitioner had not ou

chosen to produce his salary slip to show how much salary he actually gets. C

12. Thus, the view taken by the Magistrate, as also by the Court of Sessions, appears to be that due to the increase in the cost of living h

and obvious increase in the salary, which the petitioner receives, the ig

amount of maintenance which the respondent was liable to be received, H

ought to be enhanced.

13. I have carefully gone through the document at Exh. 'A'. y

Though it appears that this document was executed as and by way of full ba

and final settlement between the parties, it does not categorically state that the monthly amount payable by the petitioner to the respondent om

would not be enhanced at any time. In my opinion, in case of even full and final settlement, which consists of periodical payments to be made B

by one party to the another for an indefinite period,the cognizance of the increase in the cost of living and the increase in the income of the party, who is to pay the sum, can very well be taken into consideration. The initial amount of ` 1,500/- [Rupees One Thousand Five Hundred only] was fixed in the year 2000. The enhancement has been granted in the ::: Downloaded on - 07/09/2013 22:52:04 ::: 5 Crim.W.P. 1177.2011 year 2010. Considering the increase in the salary and the rising prices, rt

actually there has been no increase, and the amount that is now enhanced, would be roughly the same as the respondent was expected to ou

get every month by virtue of the said settlement or compromise. C

14. The writ jurisdiction available to this Court is of an extra ordinary nature. It is basically to be exercised to correct a patent and h

gross error of law resulting in mis-carriage of justice or to keep the sub- ig

ordinate Courts within the bounds of the authority vested in them by law. It is also well settled that the exercise of the writ jurisdiction is H

discretionary. In my opinion, this is not a case where, in exercise of the writ jurisdiction, the orders enhancing the amount of maintenance y

should be interfered with.

ba

15. There is, however, one aspect of the matter, which needs om

consideration. The learned counsel for the petitioner submitted that the learned Magistrate has allowed the enhancement from the date of B

application, which is rather irregular and that the enhancement ought to have been ordered from the date of the order passed by the Magistrate. There is, undoubtedly, some substance in the submission in as much as the trend of the authorities is as follows, ' With respect to an application for maintenance, ordinarily ::: Downloaded on - 07/09/2013 22:52:04 ::: 6 Crim.W.P. 1177.2011 the maintenance should be awarded from the date of an application, but rt

with respect to the application for enhancement, the enhancement is to be ordinarily awarded from the date of the order '. ou

16. There seems to be no reason for departing from this rule of C

practice, convenience and propriety. The limited interference to the aforesaid extent, therefore, seems to be necessary. As a matter of fact, h

that the enhancement may be granted only from the date of the order ig

passed by the Magistrate, is fairly conceded by the learned counsel for H

the respondent.

17. The Writ Petition is dismissed subject to the direction that y

the amount of the enhanced maintenance shall be payable from the date ba

of the order of enhancement as passed by the learned Magistrate. om

[ ABHAY M.THIPSAY, J. ]

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