‘25% of net income of husband is just and proper as maintenance to wife’; Allahabad HC dismisses husband’s revision plea for alteration of maintenance

Allahabad High Court

Allahabad High Court: In a criminal revision filed, by the husband challenging the orders dated 10-12-2019 and 07-12-2022 passed by the Trial Court in a maintenance case, wherein the Court allowed the application filed under Section 125 of the Code of Criminal Procedure, 1973 (‘CrPC’) and granted maintenance of Rs.7,000/- per month to the alleged wife and had rejected application under Section 127 CrPC, Surendra Singh-I, J. has held that there is no illegality, irregularity, or jurisdictional error in the impugned orders dated 10-12-2019 and 07-12-2022 passed by the Trial Court.

The husband submitted that the alleged wife was not his legally wedded wife and her both children were not his children. He had requested the Trial Court for DNA test, but the Trial Court did not pass any order on his application for DNA test. The aforesaid orders were illegally passed by the court against the provisions of law merely based on surmises and conjectures. Therefore, they are liable to be set-aside. He further submitted that he got government job in the year 1981 and married his wife. From that marriage, two sons were born. His elder son died in the year 2014 and the alleged wife in conspiracy with his brother to grab his land illegally, has prepared forged document and filed a false case for maintenance.

Further, the basis for filing of the application under Section 127 of CrPC for alteration of maintenance, was that there was some discrepancy in calculating the monthly allowances of revisionist. The Trial Court while calculating the monthly income of revisionist included agriculture income in monthly pension which led to increase in monthly allowance given to the alleged wife.


The Court opined that the Trial Court has rightly concluded that the alleged wife is the legally wedded wife of the husband.

As far as quantum of maintenance determined by the Trial Court as Rs.7,000/- per month payable to the alleged wife, the Court said that the monthly income of the husband should be taken into consideration. The Court also noted that the husband had admitted in his pleadings as well as deposition that he retired in the year 2013 and is getting Rs.34,656/- as monthly pension.

The Court pointed out that during investigation the husband provided documentary evidence, but none of them was related to the solemnization of marriage with his alleged wife, apart from that he hasn’t produce any oral evidence. Whereas, the alleged wife , provided reliable documents regarding her marriage with the husband and relevant document like Aadhar card, Family register of village, Ration Card, marksheet of higher education and intermediate examination of her children issued by Uttar Pradesh board of High School.

The Court while examining the application of Section 127 CrPC filed by the husband, referred to Kulbhushan Kumar v. Raj Kumari, (1970) 3 SCC 129, wherein it was held that 25% of net income of the husband would be just and proper to be awarded as maintenance allowance to the wife.

The Court noted that the Trial Court has added Rs.5,344/- as agricultural income into the amount of monthly pension of Rs.34,656/- of the husband and has taken his monthly income as Rs.40,000/-. The objection of revisionist is that he is neither in the possession nor drawing any income from the agricultural land.

After applying the law laid down in Kulbhushan Kumar(supra), the Court said that the maintenance comes up as Rs. 8,664/-. Whereas the Trial Court granted Rs. 7,000/- per month’. Therefore, the Court said that the maintenance allowance granted to the alleged wife cannot be considered as excessive vis-a-vis the monthly pension of the husband, rather it is on the lower side. Therefore, the Court held that the Trial Court has rightly rejected his application filed under Section 127 CrPC. for reduction in the maintenance allowance on the ground that he is not drawing any income from the agricultural land.The Court directed the husband to pay the monthly maintenance allowance provided by the Trial Court of Rs.7,000/-to the wife from the date of her filing application under Section 125 CrPC, payable till 10th of each calendar month. The arrears of maintenance allowance were directed to be paid in four equal amounts within a period of six months.

[Matapher v. State of UP, 2024 SCC OnLine All 1019, Order dated 04-04-2024]

Advocates who appeared in this case :

For the Revisionist: Advocate Praveen Kumar Tripathi, Advocate Shri Krishna Tripathi.

For the Opposite party: Government Advocate, Advocate Jitendra Kumar Pandey, Advocate Pankaj Dwivedi.

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