Asharph @ Asrat Vs State of U.P. and Another

Neutral Citation No. - 2025:AHC:51492

Court No. - 71

Case :- APPLICATION U/S 528 BNSS No. - 9936 of 2025

Applicant :- Asharph @ Asrat Opposite Party :- State of U.P. and Another Counsel for Applicant :- Umesh Chandra Tiwari Counsel for Opposite Party :- G.A.

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Hon'ble Raj Beer Singh,J.

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Heard learned counsel for the applicant, learned A.G.A. for the State and perused the material available on record.

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The present application under Section - 528 of Bhartiya Nagarik Suraksha Sanhita ( hereinafter referred as 'BNSS' ) has been preferred against order dated 22.03.2023, passed by the learned Additional Principal Judge, Family Court, Budaun in Case No. 969 of 2018 (Smt. Sahjahan Vs. Asharph @ Asrat), under Section - 127 Cr.P.C., Police Station - Binawar, District - Budaun, whereby the application filed by the opposite party no.2, under Section - 127 Cr.P.C. has been partly allowed and amount of maintenance has been enhanced from Rs. 800/- per month to Rs. 2,000/- per month.

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Learned counsel for the applicant submitted that impugned order is against facts and law and thus, liable to be set aside. The opposite party no.2 was awarded maintenance @ Rs. 800/- per month vide judgment dated 06.12.2006 and that by impugned order dated 22.03.2023 it has been enhanced to Rs. 2,000/- per month. It was submitted that the Family Court has directed that enhanced amount shall be payable from the date of application (under Section - 127 Cr.P.C.), which is quite arbitrary. It was submitted that the said enhanced amount of maintenance must have been awarded from the date of order and thus, the impugned

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order is liable to be set aside.

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Learned A.G.A. has opposed the application and submitted that there is no illegality or perversity in the impugned order.

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Perusal of record shows that the opposite party no.2 was awarded maintenance @ Rs. 800/- per month vide judgment dated 06.12.2006. The opposite party no.2 has filed an application in the year 2018 for enhancement of the said maintenance amount, which has been decided vide impugned order dated 22.03.2023 and the amount of maintenance was enhanced from Rs. 800/- per month to Rs. 2,000/- per month and the said amount was to be paid from the date of application.

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The provisions of Section 127 CrPC provide that Magistrate is empowered to alter an order passed under Section 125 CrPC on the ground of change in the circumstances of the parties at the time an application is made to modify the original maintenance order. While seeking any kind of modification whether for enhancement or reduction of maintenance it must be shown that there has been a change in circumstances of either the husband or of the wife. The term 'change in circumstances' as referred to in Section 127(1) CrPC not only includes a change in the financial circumstances of the husband but may also include other circumstantial changes in the husband or wife's life which may have taken place since the time maintenance was first awarded. The issue as to whether an order for grant of maintenance must be from the date of filing of application or from the date of passing of the order has been crystallized by the Apex Court in a number of judgments that it is from the date of filing of the application and not from the date of the order in the said application. In Rajnesh v. Neha (2021) 2 SCC 324, the Apex Court after referring to several earlier

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judgments has held that the rationale of granting maintenance from the date of application finds its roots in the object of enacting maintenance legislations, so as to enable the wife to overcome the financial crunch which occurs on separation from the husband. Financial constraints of a dependent spouse hamper their capacity to be effectively represented before the court. In order to prevent a dependent from being reduced to destitution, it is necessary that maintenance is awarded from the date on which the application for maintenance is filed before the court concerned. It was held that the right to claim maintenance must date back to the date of filing the application, since the period during which the maintenance proceedings remained pending is not within the control of the applicant. Though, that observation was made in reference to application under section 125 CrPC but similar analogy should be applied for an application under Section 127 Cr.P.C as well, when prayer of enhancement of maintenance is made. The view that enhanced amount of maintenance can be granted from date of application under 127 CrPC has been upheld by this Court in case of Vidya Dhar Tripathi Vs Smt Kamla Devi 2015:AHC:148495 [CRIMINAL REVISION No. 276 of 2013]. Hon'ble Supreme Court in case of Suman Narayan Niphade and another vs. Narayan Sitaram Niphade and another 1996 SCC (Criminal) 53 has held that it is a matter of discretion of the Court whether to allow enhanced maintenance from the date of application or from the date of order. However, there cannot be any dispute about the settled position in law that judicial discretion is to be exercised by the Court on sound principles so that it may not be termed as arbitrary or whimsical. Hon’ble Delhi High court has also expressed similar view in case of Smt Bhawana Sharma V Shyam Sunder Sharma (CRL.REV.P. 586/2016 & CRL.M.As.

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39482-83/2019, 40142/2019), decided on 08.08.2023.

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Coming to the facts of the instant matter it appears from record that opposite party no.2/wife was granted maintenance @ Rs. 800/- per month under Section 125 CrPC vide order dated 06.12.2006. After 12 years the opposite party no.2/wife has filed application under Section 127 CrPC in the year 2018. Said application was decided by order dated 22.03.2023 and amount of maintenance was enhanced from Rs. 800/- per month to Rs.2000/per month. The lapse of 12 years after the order passed under section 125 CrPC is itself a change in circumstance since inflation has increased manifolds since year 2006 and on this premise the maintenance awarded to the opposite party no. 2 has been enhanced. After considering evidence of the parties, the Family Court has observed that applicant has some bighas agriculture land and he was also doing business of milk. There is nothing to show that the proceedings of case under Section 127 CrPC were delayed on part of the opposite party no. 2. In view of attending facts and circumstances it can not be said that the enhancement of maintenance from Rs. 800/- per month to Rs.2000/- per month is excessive or arbitrary. No illegality could be shown in the impugned order. There is nothing to show that there has been abuse of the process of court or miscarriage of justice, so as to require any interference by this by invoking extra-ordinary jurisdiction under Section 528 BNSS. The application under Section 528 BNSS lacks merit and thus, liable to be dismissed.

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The application under Section - 528 BNSS is hereby dismissed .

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Order Date :- 9.4.2025 S Rawat

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Digitally signed by :- SHOBHIT RAWAT High Court of Judicature at Allahabad

Asharph @ Asrat v. State of U.P. and Another

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