Amitav Kumar Gupta, J. - (1.) IN this application the petitioner has challenged the correctness of the order dated 26.11.2011 passed in Miscellaneous Case No. 38/2002 whereby and whereunder the maintenance amount under Section 125 of Cr.P.C. was enhanced to Rs. 2,000/ - per month.
(2.) IT has been urged by the learned counsel for the petitioner that the order for payment was stopped in 1989 and the opposite party did not challenge the said order and after almost 13 years she filed the application claiming maintenance at an enhanced rate. It is contended that non -claiming of maintenance for such a long time shows that she is capable and has sufficient means to maintain herself. In support of the contention, learned counsel for the petitioner has relied upon decision reported in 2014 (4) JBCJ, 447 (Sunita Kachwaha & Ors. v. Anil Kachwaha). He has also relied on the decision rendered in the case of D. Velusamy v. D. Patchaiammal reported in : (2010) 10 SCC 469, and referred to para 6 of the said judgment which reads as follows: - - "6. In both her petition under Section 125 Cr.P.C. as well as in her deposition in the case the respondent has alleged that she was married to the appellant herein on 14 -9 -1986, and that he left her after two or three years of living together with her in her father's house. Thus it is the own case of the respondent herein that the appellant left her in 1988 or 1989 (i.e. two or three years after the alleged marriage in 1986). Why then was the petition under Section 125 Cr.P.C. filed in the year 2001, i.e. after a delay of about twelve years, shall have to be satisfactorily explained by the respondent. This fact also creates some doubt about the case of the respondent herein." Relying on the aforesaid decision of the Hon'ble Apex Court, learned counsel for the petitioner submitted that the impugned order has been passed without appreciating the above facts and is therefore liable to be set aside.
(3.) ON the other hand, learned counsel for the opposite party has submitted that the application has been filed under Section 125 Cr.P.C. as has been rendered in the case of Rajathi v. C. Ganesan reported in : (1999) 6 SCC 326 at para 7 it has been stated as follows: - - "...7. The words " unable to maintain herself "would mean that means available to the deserted wife while she was living with her husband and would not take within itself the efforts made by the wife after the desertion to survive somehow....";