Kishore Kumar Prasad, J.
The Judgment of the Court was delivered by:
1. The instant application invoking the inherent power of this court u/s 482 of the Code of Criminal Procedure has been filed by the petitioner herein Shri Krishna Kanta Bhattacharya for setting aside the judgment and order dated. 21st August, 2008 passed in Misc. Case No. 325 of 2005 by the learned Chief Judicial Magistrate, Howrah by reason whereof he partly accepted the application dated. 2.9.2005 filed by the Opposite Party No. 1/wife, Smt Shyamali Bhattacharya u/s 127 of the Code of Criminal Procedure for enhancement of maintenance allowance awarded to her and her daughter Anusuya Bhattacharya earlier vide order dated. 30.9.1995 in Misc. Case No. 111 of 1993 and enhanced the amount of maintenance to be paid to the Opposite Party No. 1 herein and her unmarried daughter from Rs. 400/- each per month to Rs. 1,000/- each per month from the date of his order.
2. Even though the learned counsel for the petitioner and the learned counsel for the Opposite Party No. 2/State of West Bengal have not cared to put in appearance before this Court inspite of order dated. 23.3.2009 passed by this Court, I have heard the arguments of the learned counsel appearing on behalf of the Opposite Party No. 1/wife and have also gone through the materials on record including the impugned judgment and order.
3. The facts giving rise to this application are as follows:-
The Opposite Party No. 1/wife filed an application u/s 127 of the Code of Criminal Procedure in the court of learned Chief Judicial Magistrate, Howrah on 2.9.1995 stating that vide order dated. 30.9.1995 passed in Misc. Case No. 111 of 1993 she was awarded Rs. 800/- per month as maintenance and out of Rs. 800/-, Rs. 400/- were to be paid to her by the petitioner, who is her husband and Rs. 400/- per month were to be paid to Anusuya by the petitioner, who is her minor daughter.
4. Aggrieved by the order dated. 30.9.1995 passed in Misc. Case No. 111 of 1993, the present petitioner preferred a revision being No. 414 of 1996 before this court which was ultimately dismissed on 19.2.2002 on the prayer of the petitioner herein.
5. The Opposite Party No. 1 herein filed an application on 2.9.2005 u/s 127 of the Code of Criminal Procedure before the learned Chief Judicial Magistrate, Howrah stating that the maintenance amount of Rs. 800/- at the rate of Rs. 400/- each awarded to her and her daughter in the year 1995 that is about 10 years ago was not sufficient to cope up with the spiraling market price and it was prayed that the same may be increased from Rs. 400/- each to Rs. 1,500/- each.
6. The main ground appended in the application that the learned Magistrate has wrongly taken into consideration the income of the petitioner/husband which possibly could not have been done u/s 127 of the Code of Criminal Procedure and therefore, the impugned order be set aside.
7. Learned counsel appearing for the Opposite Party No. 1/wife placing strong reliance in the cases of
8. In the Trial Court, the Opposite Party No. 1/wife examined herself as P.W.1 and her unmarried daughter Anusuya was also examined as P.W. 2 and in rebuttal the present petitioner examined himself and four more witnesses.
9. The learned Trial Court on the basis of the materials on record and after hearing the learned counsel of the parties, came to the conclusion that the petitioner/husband has failed to prove that the Opposite Party No. 1/wife has sufficient means to maintain herself and her unmarried daughter and consequently keeping in mind the status of the parties and rise in cost of essential commodities enhanced the amount of maintenance from Rs. 400/- each to Rs. 1,000/- each per month with effect from 21.8.2008, that is from the date of his order.
10. In
11. Section 127 of the Code of Criminal Procedure makes a provision for alteration of allowance on the proof of change in the circumstances of the parties. On proof of change in the circumstances of any person, receiving u/s 125 of Code of Criminal Procedure monthly allowance, or ordered under the same Section to pay a monthly allowance to his wife, child, father or mother, as the case may be, the Magistrate may make such alteration in the allowance as he thinks fit.
12. Now, I have to consider as to whether the amount of enhanced maintenance awarded by the learned Magistrate in favour of major daughter who is admittedly unmarried is erroneous in view of the legal position that u/s 125 of the Code of Criminal Procedure only a minor child can be entitled to get maintenance and an adult can never be so entitled. Here also I am unable to be at one with the ground taken in the application in view of a very recent Apex Court judgment reported in 2002 SCC (Cri) 1147, wherein Their Lordships have pronounced this landmark decision by enjoining that Section 125 does not fix liability of parents to maintain children beyond attainment of majority, but right of minor girl for maintenance from parents after attaining majority till her marriage recognised u/s 20(3) of the Hindu Adoptions and Maintenance Act and therefore, a combined reading of the two provisions held, High Court was justified in upholding the order of Family Court, by which it granted maintenance u/s 125 to the daughter even after her attaining majority but till her marriage, taking the view that it would avoid multiplicity of proceedings as otherwise the party would be forced to file another petition u/s 20(3) of the Hindu Adoptions Maintenance Act for further maintenance. In view of this judgment of the Hon''ble Apex Court, there is no denying the legal position that even a daughter who has crossed the age minority and has become a major will continue to be entitled to get maintenance from her father u/s 125 of the Code of Criminal Procedure till her marriage.
13. In the present case, it is undisputed that the daughter Anusuya is still unmarried and therefore, in view of this legal position settled by the Hon''ble Apex Court that there is no alternative for this Court but to accept the contention of the learned counsel for the Opposite Party No. 1/wife that the daughter will also be equally entitled to get maintenance from her father just like the wife. Because, if she has to file a petition under the Hindu Adoptions and Maintenance Act, 1956, there will be unnecessary multiplicity.
14. The above position was also highlighted in the judgment of Hon''ble Apex Court in the case of
15. It may be stated here that the first order granting maintenance u/s 125 of the Code of Criminal Procedure was passed on 30.9.1995 and second order (impugned order) was passed on 21.8.2008 that is about 13 years back and during this period, the prices of the essential commodities have increased substantially, therefore, this fact itself can be regarded as the circumstances which can compel the court to make alteration in the order of granting maintenance.
16. Keeping in mind the available materials on record, taking into account the status of the respective parties and having regard to the expenses for providing food, clothing, medical treatment etc. in the context of ever increasing prices of essential commodities; it can not be said that the view taken by the learned Trial Magistrate is so absurd and so shocking to the judicial conscience that this Court may be inclined to invoke its inherent power to secure the ends of justice.
17. The order of the learned Trial Magistrate granting enhanced maintenance of Rs. 1,000/- each per month in favour of Opposite Party No. 1 herein and her unmarried daughter from the date of his order can not be said to be excessive or exorbitant.
18. In view of what is thus stated above, I am to hold that the impugned order of the learned Chief Judicial Magistrate, Howrah dated. 21.8.2008 calls for no interference and is hereby affirmed.
19. This application u/s 482 of the Code of Criminal Procedure is barren of merits and hence dismissed.
20. Interim order, if any, passed by this Court stands vacated.
21. Criminal Section is directed to send a copy of this judgment to the concerned Trial Magistrate forthwith for information and necessary action.
22. Urgent xerox certified copy of this judgment, if applied for, be supplied to the learned counsel for the parties upon compliance of all formalities.
