Patna High Court
Chandeshwar Kumar Rai @ Moti @ Chandeswar Kumar RaiversusThe State of Bihar
- Decided
- Disposal
- DISPOSED
- Bench
- ARUN KUMAR JHA
Holding
A compromise does not bar future enhancement of maintenance under Section 127 CrPC; the enhanced amount is payable from the date of filing of the enhancement petition, and a fresh order must be made after hearing both parties.
Summary
The petitioner married Chandani Devi in 2010, but she deserted him and was later diagnosed with incurable bipolar affective disorder. The parties entered into a compromise in 2012 whereby the petitioner agreed to pay Rs.1,500 per month as maintenance. In 2024 the wife filed a miscellaneous case under Section 127 CrPC seeking enhancement of maintenance to Rs.4,500 per month, which the Family Court allowed. The petitioner challenged the order, arguing that a compromise barred any later enhancement and that no change in circumstances was shown. The High Court held that a compromise does not preclude future enhancement under Section 127, that inflation and the passage of time constitute a change in circumstances, and that the order should be modified to make the enhanced payment effective from the date of filing of the enhancement petition (21‑08‑2015) with a fresh calculation of quantum. The revision petition was disposed of, directing the Family Court to pass a fresh order after hearing both parties.
Issues considered
- Whether a maintenance order passed on the basis of a compromise can be enhanced under Section 127 CrPC.
- Whether the petitioner is liable to pay the enhanced maintenance amount from the date of the enhancement order or from the date of filing of the enhancement petition.
- Whether a change in circumstances sufficient to justify enhancement is required and, if so, what constitutes such change.
Legislation cited
- Code of Criminal Procedure, 1973 — s. 125, 127
Subjects
- maintenance
- Section 127 CrPC
- compromise
- enhancement
- divorce
- mental illness
- family court
- revision petition
- arrears
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL REVISION No.373 of 2025
======================================================
Chandeshwar Kumar Rai @ Moti @ Chandeswar Kumar Rai S/o Sriballav
Prasad Roy @ Ballabh Pd. Rai @ Shri Ballav Pd. Rai @ Shri Ballav Prasad
Rai R/o Village- Khajaraitha, P.S.- Parbatta, District- Khagaria.
... ... Petitioner
Versus
1. The State of Bihar
2. Chandani Devi W/o Chandeshwar Kumar Rai @ Moti @ Chandeswar
Kumar Rai, D/o Bhubneshwar Sharma R/o vill- Parsa, P.S.- Jainagar,
District Madhubani
... ... Respondents
======================================================
Appearance :
For the Petitioner/s : Mr. Ravish Mishra, Advocate
Mr. Rakesh Kumar Tiwary, Advocate
For the Respondent/s : Ms. Somali Acharya, Advocate
Mr. Ajay Kumar Thakur, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE ARUN KUMAR JHA
CAV JUDGMENT
Date :09-04-2026
The instant criminal revision petition has been
preferred by the petitioner against the order dated 24.12.2024
passed by the learned Principal Judge, Family Court,
Madhubani in Miscellaneous Case No. 115 of 2015 whereby
and whereunder, the learned Family Court allowed the petition
filed by the opposite party no. 2 under Section 127 of the Code
of Criminal Procedure, 1973 (CrPC) and enhanced the
maintenance amount allowed in favour of the opposite party no.
2 @ Rs. 1,500/- per month to Rs. 4,500/- per month from the
date of presentation of the petition, i.e., from 21.08.2015. The
petitioner was further directed to pay an amount of Rs. 2,500/-
as litigation expenses along with the first installment.
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2. Briefly stated, the facts of the case, as it appears
from the record, are that the petitioner was married with the
opposite party no. 2 on 09.06.2010 in Budhanath Shiv Temple in
Bhagalpur district. The behaviour of opposite party no. 2 was
eccentric and abnormal and she deserted the petitioner and
started living in her parental home and after 17.02.2011 she did
not return to her matrimonial home. Thereafter, the petitioner
filed a matrimonial case bearing MS No. 24 of 2011 under
Section 9 of the Hindu Marriage Act for restitution of conjugal
rights before the court of learned Principal Judge, Family Court,
Khagaria on 16.04.2011. However, opposite party no. 2 had
been suffering from Bipolar Affective Disorder even prior to her
marriage which is a non-curable disease of the brain but this
information was suppressed by her family members at the time
of marriage and, thus, a fraud has been played upon the
petitioner and they ruined his life. For this disease, the opposite
party no. 2 remained under treatment at AIIMS, New Delhi.
Therefore, the learned Principal Judge, Madhubani in the case
filed by the petitioner ordered for medical examination of the
opposite party no. 2. Accordingly, a report dated 09.01.2012 was
submitted by the Jawahar Lal Nehru Medical College and
Hospital, Bhagalpur before the learned Family Court observing
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that the opposite party no. 2 had been suffering from incurable
mental medical problem. Thereafter, the petitioner left with no
choice, withdrew his petition filed for restitution of conjugal
rights and order of withdrawal was passed on 23.01.2023.
Subsequently, the petitioner filed a matrimonial case bearing
No. 109 of 2013 for divorce in the Family Court, Khagaria, in
which, the opposite party no. 2 has filed her written statement
on 07.11.2023. An application for transfer of the said case was
also filed and the said transfer petition was allowed and records
of the divorce case of the petitioner was transferred to the
Family Court, Madhubani. In the said case, the opposite party
no. 2 filed second written statement on 20.08.2014. However,
she lost interest in the said case, remained absent and non-
represented on the dates fixed in the case. In the said case, the
learned Family Court passed a decree of divorce on 20.06.2023
by way of detailed order. Meanwhile, during hearing of the
anticipatory bail petition of the petitioner, the learned Single
Judge of this Court, vide order dated 21.10.2014 passed in
Criminal Misc. No. 38391 of 2014, directed the petitioner to
deposit an amount of Rs. 750/- per month to the opposite party
no. 2 as an interim maintenance amount.
It further transpires that the opposite party no. 2 filed
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a maintenance case bearing MR No. 26 of 2011 before the
learned Principal Judge, Family Court, Madhubani on
03.03.2011. However, the maintenance case ended in
compromise and a compromise petition was filed on 15.02.2012
wherein this petitioner, who was opposite party before the
learned Family Court, agreed to pay his wife a sum of Rs.
1,500/- per month as maintenance amount as per the agreed
terms. Consequently, an order dated 15.02.2012 was passed by
the learned Family Court holding that the maintenance case was
disposed of as per the terms of settlement and the petitioner
therein also agreed to withdraw the criminal complaint case
bearing No. 246 of 2011, which was filed against the husband,
the petitioner herein. It further transpires that the opposite party
no. 2 then filed a miscellaneous case bearing No. 115 of 2015
under Section 127 of CrPC before the court of learned Principal
Judge, Family Court, Madhubani for enhancement of the
maintenance amount. The petitioner as opposite party filed his
written statement in the said case. The learned Family Court
allowed the said miscellaneous case filed by the opposite party
no. 2 and enhanced the maintenance amount from Rs. 1,500/- to
Rs. 4,500/- per month. Against this order, the petitioner has
approached this Court by filing the present revision petition.
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3. Learned counsel appearing on behalf of the
petitioner submitted that the order of the learned Family Court is
completely illegal and erroneous in the facts and circumstances.
The impugned order dated 24.12.2024 is neither sustainable on
facts or in law. The learned Family Court has failed to
appreciate the fact that once an order for maintenance has been
passed based on compromise between the parties, there was no
scope for enhancement of the same on the application being
filed on behalf of opposite party no. 2. Learned counsel further
submitted that the order impugned is not supported with reasons
and nothing has been brought on record to point out the
circumstances which have changed and necessitated the filing of
the miscellaneous case. The miscellaneous case for enhancing
the maintenance amount has been brought on record within
three years of compromise order in the maintenance case but
even this fact was overlooked by the learned Family Court.
Learned counsel further submitted that the learned Family Court
has also not considered the fact that in terms of compromise, the
opposite party no. 2 was supposed to drop all criminal
proceedings against the petitioner but she has failed to do so and
has now filed the miscellaneous case only to harass the
petitioner. Learned counsel further submitted that the order of
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maintenance has been passed without any documentary
evidence as based solely on the deposition of the opposite party
no. 2. Learned counsel further submitted that the opposite party
no. 2, after filing the case for enhancing of maintenance amount,
adduced her evidence after passage of 11 years from the date of
passing of the first maintenance order on 15.02.2012. The
petitioner was not granted any time for examination of
witnesses and most of the proceeding took place during the
period of Covid-19. Learned counsel further submitted that the
order for enhancement of maintenance amount has been passed
against the guidelines framed by the Hon’ble Supreme Court in
the case of Rajnesh vs. Neha & Anr., (2021) 2 SCC 324.
Learned counsel further submitted that the learned Family Court
has not even considered the fact that the petitioner is merely a
casual labourer earning only Rs. 5,000/- per month, still the
maintenance amount has been enhanced to Rs. 4,500/- per
month without any reason. The learned Family Court has also
not considered the fact that marriage of both the parties stood
dissolved by the orders of a competent court on the ground of
incurable mental disease of the opposite party no. 2 and the
same has been discussed in detail but the learned Family Court
showed undue haste and made miscalculation in modifying the
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said amount. The order for enhancement of maintenance amount
was passed without any logic and reason, more so, without
considering the fact that the petitioner is a poor person. Learned
counsel further submitted that the whole life of the petitioner
has been ruined as the family members of the opposite party no.
2 has suppressed the fact about incurable mental disease of the
opposite party no. 2. Learned counsel further submitted that the
learned Family Court has not considered the circumstances or
whether the needs of recipient have increased due to inflation,
medical expenses or education of children. The learned Family
Court has also not considered the fact that there is no
improvement in the capacity of the petitioner to make more
payment. The learned counsel further submitted that the
enhancement of amount must be strictly aligned with specific
provisions of relevant legislation and principles of fairness but
this was not considered by the learned Family Court.
4. In support of his case, learned counsel for the
petitioner relied on the decision of the High Court of Bombay at
Aurangabad in the case of Shaikh Sadiq Shaikh Rahim vs.
Shabanabi S. Ali and Others, 2009 0 Supreme (Bom) 1451,
wherein on account of non-consideration of income of the
petitioner, enhancement of maintenance amount was held to be
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bad. Similarly, in the case of Sayantani Ghosh Vs. Sukesh
Ranjan Koley (RVW 158 of 2023, decided on 10.08.2023 by
the learned Single Judge of the High Court of Calcutta),
wherein finding that petitioner has neither mentioned in the
application for enhancement nor in the revisional application
filed in the High Court with regard to any change of
circumstances for which the alimony pendente lite was required
to be enhanced, the learned Single Judge of Calcutta High Court
has dismissed the application filed by the petitioner for review
of the order by which the High Court did not find any reason to
interfere with the order of the learned District Judge dismissing
the application for enhancement of maintenance pendent lite.
Learned counsel next relied on the decision of Calcutta High
Court in the case of Manisha Kedia Vs. Manoj Kumar Kedia,
2024 0 Supreme (Cal) 177, wherein the Calcutta High Court
held that while fixing amount of maintenance, the Court has to
consider the status of the parties, their respective needs, the
capacity of the husband to pay etc. Thus, the learned counsel
submitted that as the learned Family Court failed to take into
consideration the facts and circumstances, the impugned order
could not be sustained and the same needs to be set aside.
5. Learned counsel appearing on behalf of opposite
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party no. 2 vehemently contended that there is no infirmity in
the impugned order and the same is proper and correct. Learned
counsel further submitted that the order for grant of
maintenance amount was initially passed on 15.02.2012.
Though the said order was based on compromise of the parties,
the same could not preclude the opposite party no. 2 from
approaching the Family Court for enhancement of the
maintenance amount considering the increase in the cost of
living. Further, the order for enhancement of maintenance
amount came to be passed only on 24.12.2024, i.e., after
passage of more than 09 years. Learned counsel further
submitted that the opposite party no. 2 filed her affidavit
regarding her assets and liabilities whereas the petitioner did not
file any affidavit of assets and liabilities and further failed to
lead any evidence. Learned counsel further submitted that the
petitioner did not even cross-examine the witness of opposite
party no. 2 and at this stage, it is not proper for him to challenge
the order on new facts.
6. Learned counsel for the opposite party no. 2 relied
on the decision in the case of Manish Jain Vs. Akanksha Jain,
AIR 2017 SC 1640, wherein it has been held that an order for
maintenance pendente lite or for costs of the proceedings is
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conditional on the circumstance that the wife or husband who
makes a claim for the same has no independent income
sufficient for her or his support or to meet the necessary
expenses of the proceedings. In the present case, nothing was
brought on record to show that the opposite party no. 2 was
having any independent source of income. Next case relied on
by the learned counsel for the opposite no. 2 is Shamima
Farooqui Vs. Shahid Khan, AIR 2015 SC 2025, wherein the
Hon’ble Supreme Court observed that in today's world, it is
extremely difficult to conceive that a woman of her status would
be in a position to manage with Rs.2,000/- per month. It has
been stressed that it can never be forgotten that the inherent and
fundamental principle behind Section 125 CrPC is for
amelioration of the financial state of affairs as well as mental
agony and anguish that woman suffers when she is compelled to
leave her matrimonial home. It has further been held that the
statute commands there has to be some acceptable arrangements
so that she can sustain herself. The Hon’ble Supreme Court
quoted with his approval a passage from the judgment rendered
by the Delhi High Court in the case of Chander Prakash
Bodhraj v. Shila Rani Chander Prakash, AIR 1968 Delhi 174,
which reads as under:
“An able-bodied young man has to be
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presumed to be capable of earning sufficient
money so as to be able reasonably to maintain his
wife and child and he cannot be heard to say that
he is not in a position to earn enough to be able to
maintain them according to the family standard. It
is for such able-bodied person to show to the
Court cogent grounds for holding that he is
unable, for reasons beyond his control, to earn
enough to discharge his legal obligation of
maintaining his wife and child. When the husband
does not disclose to the Court the exact amount of
his income, the presumption will be easily
permissible against him.”
7. Thus, the learned counsel submitted that as the
petitioner husband did not disclose by way of affidavit his assets
and liabilities, the presumption taken against him is permissible.
Learned counsel also referred to the decision of Bombay High
Court in the case of Dattatraya Bhaurao Manekar Vs.
Anupreeta Dattatraya Manekar, 2023 Supreme (Bom) 980,
wherein finding that the petitioner did not examine himself to
rebut the oral evidence of respondent, the High Court assumed
that the petitioner might have chosen not to step into the witness
box to avoid uncomfortable aspects of the matter. Thus, the
learned counsel submits that there is no infirmity in the
impugned order and the same does not require any interference
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of this Court.
8. I have given my thoughtful consideration to the
rival submission of the parties and perused the record.
9. Section 127 of the CrPC reads as under:
“127. Alteration in allowance.—[(1) On proof
of a change in the circumstances of any person,
receiving, under section 125 a monthly allowance for
the maintenance or interim maintenance, or ordered
under the same section to pay a monthly allowance
for the maintenance, or interim maintenance, to his
wife, child, father or mother, as the case may be, the
Magistrate may make such alteration, as he thinks fit,
in the allowance for the maintenance or the interim
maintenance, as the case may be.]
(2) Where it appears to the Magistrate that, in
consequence of any decision of a competent Civil
Court, any order made under section 125 should be
cancelled or varied, he shall cancel the order or, as
the case may be, vary the same accordingly.
(3) Where any order has been made under
section 125 in favour of a woman who has been
divorced by, or has obtained a divorce from, her
husband, the Magistrate shall, if he is satisfied that—
(a) the woman has, after the date of such
divorce, remarried, cancel such order as from the
date of her remarriage;
(b) the woman has been divorced by her
husband and that she has received, whether before
or after the date of the said order, the whole of the
sum which, under any customary or personal law
applicable to the parties, was payable on such
divorce, cancel such order,—
(i) in the case where such sum was paid
before such order, from the date on which such
order was made;
(ii) in any other case, from the date of
expiry of the period, if any, for which
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maintenance has been actually paid by the
husband to the woman;
(c) the woman has obtained a divorce from
her husband and that she had voluntarily
surrendered her rights to [maintenance or interim
maintenance, as the case may be,] after her
divorce, cancel the order from the date thereof.
(4) At the time of making any decree for the
recovery of any maintenance or dowry by any
person, to whom a [monthly allowance for the
maintenance and interim maintenance or any of them
has been ordered] to be paid under section 125, the
Civil Court shall take into account the sum which has
been paid to, or recovered by, such person [as
monthly allowance for the maintenance and interim
maintenance or any of them, as the case may be, in
pursuance of] the said order.”
10. Thus, the aforesaid provision provides alteration
in allowance of maintenance. The said provision also makes it
clear that if the woman, who has been divorced has not
remarried, but has not voluntarily surrendered her rights to
maintenance, will continue to receive the maintenance.
Therefore, the submission of the learned counsel for the
petitioner, regarding opposite party no. 2 after being divorced
and for this reason not entitled for any maintenance from the
petitioner, is not sustainable, as nothing has come on record to
show that opposite party no. 2 has remarried or has surrendered
her rights to the maintenance.
11. So far as the submission of the learned counsel for
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the petitioner regarding the grant of maintenance amount to the
tune of Rs. 1,500/- on the basis of compromise entered into
between the parties is concerned, it is made clear that it was not
in the form of one time settlement. When the matter was
compromised and the petitioner agreed to make payment of Rs.
1,500/- per month to the opposite party no. 2, the same does not
mean the opposite party no. 2 was forbidden from seeking
enhancement of the maintenance amount for all times to come.
As it was not a one time settlement and opposite party no. 2 was
allowed maintenance every month, implicit in it was intention of
the parties that in future, there would be scope for enhancement
of maintenance amount if need so arose. Merely because the
initial maintenance amount was ordered on the basis of
compromise, I do not think the gates for future enhancement has
been closed for all purposes for opposite party no. 2. Therefore,
even on this account, I do not find any merit in the submission
of the learned counsel for the petitioner.
12. So far as contention of the petitioner about
opposite party no. 2 not showing any change in circumstances is
concerned, I do not attach much significance to it considering
the fact that the initial order of maintenance was passed in the
year 2012 and subsequent order came to be passed in the year
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2024 and the passage of this period in itself is sufficient to make
an assumption by the Court that cost of living has risen and
inflation has made the value of money lesser each day.
Therefore, even if the opposite party no. 2 might not have
deposed in so many words about her condition and her claim
was not based on documentary evidence, the same could not be
used to deny her claim. Moreover, the petitioner has failed to
cross-examine the witness/opposite party no.2 and, therefore,
cannot take advantage of his own wrong.
13. Further, on the quantum of enhancement, I do not
think it could be said to be unreasonable as the first order for
maintenance was passed on 14.02.2012 and it was to the tune of
Rs. 1,500/- per month. More than 12 years thereafter the order
for enhancement of maintenance amount has been passed and
the amount has been enhanced to Rs. 4,500/- per month. This
amount is based on the claim of the opposite party no. 2 who
deposed herself as her only witness as it appears from the
impugned order. Despite opportunity, the petitioner neither
cross-examined the witness nor adduced his own evidence.
Though, he filed his written statement/objection claiming his
salary to be Rs. 5,000/- per month. If the petitioner failed to
contest the case properly before the learned Family Court, it is
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not the fault of opposite party no. 2 and she cannot be penalized
for the same. If the petitioner was in a position to make payment
of Rs. 1,500/- per month in the year 2012, natural inference is
that his income must also have increased during this period and
considering the prevailing circumstances, rate of inflation and
increase in cost of living, ordering the petitioner to make
payment of Rs. 4,500/- per month as enhancement amount to the
opposite party no. 2 could not be said to be unreasonable.
14. However, a blanket order of payment of Rs.
4,500/- per month has been passed from the date of presentation
of the petition for enhancement. It has been claimed by the
petitioner that in the case for enhancement, the opposite party
no. 2 adduced her evidence after 08 years of filing of the
petition and the same has not been denied by the opposite party
no. 2. Therefore, it would not be proper to direct the petitioner
to make payment @ Rs. 4,500/- per month from the date of
filing of the petitioner in the year 2015. On this short point, I am
inclined to interfere with the impugned order and the part of
impugned order dated 24.12.2024 is set aside to the extent of
making payment from the date of filing of the enhancement
petition and thus modifying the impugned order. The parties are
directed to appear before the learned Principal Judge, Family
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Court, Madhubani and the learned Family Court is directed to
pass a fresh order after giving due opportunity of hearing to the
parties for calculation of quantum of maintenance amount from
21.08.2015 till the passing of the order, i.e., 24.12.2024.
15. It also transpires from the impugned order that the
petitioner is a defaulter and has accumulated arrear amount by
not making the payment regularly and hence, the learned Family
Court is directed to ensure that the petitioner makes the payment
of arrear amount before proceeding further in the matter. It goes
without saying that petitioner would keep on making payment
of the amount @ Rs. 4,500/- w.e.f. the date of impugned order,
i.e., 24.12.2024.
16. Accordingly, the present revision petition stands
disposed of.
17. Pending application(s), if any, also stands
disposed of.
(Arun Kumar Jha, J)
Ashish/-
AFR/NAFR NAFR
CAV DATE 09.02.2026
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