Enhancement of maintenance already fixed by the court

Question

Whether the enhancement of alimony is possible? I married in the year 2003. My husband was rude and careless towards me. Therefore, I finally decided to leave the matrimonial home. Now, I have been residing with my parents. I started working as a school teacher. Unfortunately, my salary is not enough to meet my essential expenses.

I am a childless woman but unfortunately suffering from financial paucity. I need financial help, therefore, filed a petition for maintenance under section 125 CRPC. Finally, the court has fixed the monthly alimony as rs. 4000.

My husband cheated by making the promise to pay a high amount as maintenance.  I relied upon him and got a mutual divorce from the family court. Now my husband has retracted from his promise and denying to fulfil his obligation.

Right now, he has promoted at the post of the senior manager. In light of the above facts, I want enhancement in maintenance. Is it possible to file any suit or petition for an increase in alimony? Kindly help.

Question asked on 31/01/2019

Answered by: Advocate Shivendra

You have the right to claim enhancement in the amount of alimony. The wife is entitled to monetary support from her husband to maintain her living standard as she could keep in her matrimonial home. You were separated as per the agreement in the mutual consent divorce. I think that the amount of monthly allowance would have been fixed in that agreement. He has breached the contract by not obeying to perform his obligation.

However, you could have compelled him to perform his duty in the said contract by moving an application before the family court. But still, you have a chance to file such an application. You had filed a separate petition under section 125 of the Code of Criminal Procedure (CrPC) and receiving a monthly allowance in the form of alimony.  

Maintenance fixed by the court under section 125 of the code of criminal procedure (crpc) is tentative. The court may enhance the amount of monthly allowance if the court satisfies from the circumstances that it became insufficient for the wife. As I said above, you have the right to maintain a dignified living standard. The court estimates such standard in the proportionate to the living standard of husband.  

Section 127 crpc

Section 127 of CrPC, empowers the court to increase or decrease the amount of maintenance if changes took place in circumstances of the parties. Those changes should be convincing and must satisfy the court that enhancement is necessary.

In your case, the increment in husband’s salary is a vital fact to consider for enhancement of alimony. The court will consider this fact and may adjust the maintenance proportionally. In the application, you have to produce evidence that your husband’s salary has increased and how the amount of alimony became insufficient?

Whether application under section 127 is maintainable?

Yes, the petition is maintainable. There is no limitation period for filing that application. Hence, you can approach the court for enhancement of alimony anytime when it becomes insufficient. It would be possible that the circumstance may create some hardship for the wife. The wife should not be punished and be bound to live in destitution.

Section 125 to 128 of the CrPC have a significant social effect in respect of the living condition of wife, children and parents. The law secures that they should not live in starvation, and the responsible person must perform his social obligation. Hence, the procedure towards maintenance incorporated in the CrPC to give speedy justice to the destitute person.

Therefore, the law of limitation does not apply in maintenance proceedings. The right to maintenance is a continuing right. Consequently, you are entitled to claim alimony as well as its enhancement, at any time.

Upon proof of the changes in circumstance of the parties, the court does not refuse the application under section 127 CrPC. In Padmja Sharma v. Ratan Lal Sharma, (2000) 4 SCC 266; the Supreme Court holds that “the concept behind the maintenance is to protect the wife from destitution.” Further, the right to maintenance includes provision for food, clothing, residence, education, medical attendance and treatment.

In Bhagwan vs Kamala Devi, AIR 1975 SC 83, the Hon’ble Apex Court observed that the expression “unable to maintain herself does not mean that the wife must be absolutely destitute.” When the wife is living under an undignified condition, then she can claim maintenance.

Hence, you may file an application under section 127 CrPC and get an enhanced amount of alimony from the date of filing.

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Shivendra Pratap Singh

Advocate, Lucknow

Advice: 16825

Consultation: 3309

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