Court No. - 49
Case :- CRIMINAL REVISION No. - 1308 of 2018 Revisionist :- Arun Gupta Opposite Party :- State Of U.P. And Another Counsel for Revisionist :- Nagendra Kumar Singh Counsel for Opposite Party :- G.A.
Hon'ble Saumitra Dayal Singh,J.
Heard learned counsel for the applicant and learned A.G.A. for the State and Sri Rajesh Kumar Tiwari, learned counsel for the opposite party no.2.
The present revision has been filed against the order passed by learned Principal Judge Family Court, Maharajganj dated 26.2.2018, by which the monthly maintenance allowance @ Rs. 3000/- per month has been awarded to the opposite party no.2 from the date of her application being 3.11.2012.
Learned counsel for the applicant submits that the award of maintenance allowance @ Rs. 3000/- per month is excessive. Keeping in view the fact that the applicant is unemployed youth.
Sri Rajesh Kumar Tiwari, learned counsel has put in appearance on behalf of opposite party no.2 and he has vehemently opposed the submission advanced by learned counsel for the applicant. In this regard, it has been submitted by him that the applicant is gainfully employed by working as a medical store being run by his father. In addition, it has been submitted that the applicant has also some agricultural holding.
Learned Court below after considering the statement recorded in the proceeding observed that there is no definite evidence led by either parties to establish the income of the applicant. However, it has been taken note that the applicant had tried to conceal the material facts inasmuch as he had denied the knowledge of existence of medical store, which fact came to be admitted by DW-2 Ram Dhawan. It is also on record that the applicant is well educated.
The learned Court below has then observed that considering the financial and social status of the parties, the maintenance allowance to be provided @ Rs. 3000/- per month.
In such facts, there does not appear any error in the estimation of the current monthly maintenance allowance @ Rs. 3000/- per month, considering the fact that the applicant is an able bodied person.
However, on such reasoning alone it is difficult to sustain the award of maintenance allowance at that rate from the date of the application being 3.11.2012 (six years).
Learned counsel for the applicant submits that the total arrears at that rate would come to Rs. 1,89,000/- and the applicant had no means to satisfy.
In view of the facts that the applicant appears to be a manual labourer, it does appear that the award of maintenance allowance for the past period of almost of six years at flat rate Rs. 3,000/- per month as has been fixed in the year 2018 is excessive. Also, no such reasons have been given by the learned court below to award the arrears at such rate for a long period of six years.
At the same time, it cannot be disputed or denied that the opposite party no.2 is entitled to some maintenance allowance for the period from the date of application till the date of order. Inasmuch as the applicant has been unable to show that the said opposite party no.2 had any means of sustenance when she filed her application in the year 2012. Thus some minimum means were necessary to be provided.
Thus, at present, while the award of maintenance allowance @ Rs. 3,000/- per month for the present is being approved, the finding of the learned court below awarding maintenance allowance at that rate for the period 03.11.2012 to 26.02.2018 is set aside and the matter is remitted to the learned court below on this limited aspect.
Accordingly, the present revision is disposed of on the following directions:-
(i). The award of maintenance allowance @ Rs. 3,000/- per month from the date 26.02.2018 onward is sustained.
(ii) The applicant shall deposit an amount of Rs. 50,000/- being payable on or before 31.5.2018 and Rs. 25,000/- being payable on or before 30.6.2018 towards arrears of maintenance allowance for the period 3.11.2012 to 26.2.2018.
(iii) Considering the above, the order dated 26.2.2018 is set aside and the case is remitted to the learned Court below to decide the matter afresh on the issue with regard to maintenance allowance awarded from the date of the application, in accordance with law, as expeditiously as possible, preferably within a period of three months from the depositing the amount of Rs. 75,000/- towards arrears being made by the applicant (as below).
(iv) During the pendency of the proceeding in remand, the opposite party no.2 would continue to be entitiled to receive towards maintenance allowance @ Rs. 3000/- per month from the date of the order.
Order Date :- 24.4.2018 Mini