Tulip Kanth

New Delhi, June 9,2022: Enhancing the amount of maintenance, the Delhi High Court has observed that in cases involving grant of maintenance, calculation has to be made in terms of financial capacity and the same needs to be done keeping in mind all family circumstances.

Expounding the law on Maintenance, the Bench of Justice Swarna Kanta Sharma affirmed that Section 127(1) Cr.P.C. is a provision for increase or decrease of maintenance as granted under Section 125, consequent upon any change in the circumstances of the parties concerned at the time of filing of application for alteration/modification of the original order of maintenance and  it must be shown by the party concerned that there has been a change in the circumstances of either the husband or of the wife.

In this matter, the marriage of the petitioner/wife was solemnized with the second respondent and a son was born to them in 1993. Disputes arose and subsequently the petitioner filed a petition under Section 125 of Code of Criminal Code, 1973 for grant of maintenance which was allowed by the Metropolitan Magistrate. Later, since there was an increase in the income of  the husband, the petitioner filed an application under Section 127 Cr.P.C and the husband was directed to pay maintenance of Rs.6,000  per month to the petitioner from the date of the impugned order during her lifetime or till she gets remarried. The present Revision Petition had been filed by the wife challenging this order passed by the Family Court.

Observing that the rise in the income of the husband can be a valid change of circumstances falling within the ambit of Section 127(1), the Bench said, “It may therefore be concluded that increase in the income of the husband becomes a significant criterion to alter maintenance for the wife.” The Court considered the aspect that the  second respondent has an old dependent father and a divorced sister and stated that  some amount as expenditure on yearly basis has to be kept aside for the divorced sister as moral obligation of the respondent.For the dependent father, the Bench said that a certain amount of expenditure must be apportioned for his needs.

Thus, clarifying that the maintenance cannot be enhanced from the date of the application as the present petition is under Section 127 Cr.P.C. wherein, the maintenance amount has to be decided on the basis of the date on which the salary of the husband had changed, the Bench enhanced the maintenance from Rs. 6,000 to Rs. 7,500  per month from the date on which the respondent received his first enhanced salary.

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