Court No. - 49
Case :- CRIMINAL REVISION No. - 1353 of 2018 Revisionist :- Badshah Opposite Party :- State Of U.P. And Another Counsel for Revisionist :- Rajeev Kumar Saxena 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.
The present revision has been filed against the order dated 24.2.2018 passed by the learned Principal Judge Family Court, Jalaun at Orai, by which the maintenance allowance @ Rs. 3000/- per month has been awarded to the opposite party no.2 from the date of her application being 21.9.2015.
Learned counsel for the applicant submits that the opposite party no.2 was not entitled to any maintenance allowance because she had performed a second marriage on 11.3.2016 i.e. during pendency of her application under Section 125 Cr.P.C.
Alternatively, it has been submitted that the award of monthly maintenance allowance @ Rs. 3000/- per month is excessive or arbitrary. Then, it has also been submitted that in any case the award of maintenance allowance should have been made from the date of the order and not from the date of the application.
It is admitted to the applicant that the opposite party no.2 was married to the applicant on 2.6.2013. It is also admitted that the said marriage has not yet been dissolved. Therefore, in law, a question of second marriage of opposite party no.2 on 11.3.2016, does not arise.
If it were the case of the applicant that the opposite party no.2 was living in adultery, it was for him to have pleaded such fact and to have led credible evidence to prove the same. No such pleadings or evidence had been led by the applicant.
It therefore appears that the applicant has tried to lighten his burden to prove adultery. By setting up an alternative plea of a second marriage of opposite party no.2.
Then, as to the alleged second marriage of the opposite party no.2, the applicant had relied merely on a photocopy of or alleged memorandum of marriage/letter of guarantee.
In support of such document, the notary who claimed to have executed the said document and drafts man/lawyer who claimed to have drafted the same were examined.
Though the said notary supported the case setup by the applicant of such document having been executed, however, the learned Court below had noted that during his cross-examination, the said notary admitted the fact that he never inquired about the age of the first marriage of the opposite party no.2 before proceeding to notarize the document produced by him.
It is noted during his cross-examination, the said notary claimed that he did not a remember if he had inquired about dissolution of the marriage of applicant and opposite party no.2 but further added that said opposite party no.2 had informed him that she had been married to the applicant in the year 2013 when she was a minor. He also admitted to the fact that he never informed the alleged executant of the document that for the purpose of marriage they were required to appear before the District Magistrate/registering authority and he also did not remember whether he has advised the said parties yet their marriage registered.
In such evidence, the learned Court below has disbelieved the contention raised by the applicant with the opposite party no.2 had performed a second marriage, in view of the fact that the marriage of the applicant and opposite party no.2 had admittedly not been dissolved.
Further, in view of the fact that the evidence that was led by the applicant to establish the second marriage of opposite party no.2 was wholly unreliable and clearly such as appeared to have been procured for the purpose of plea set up by the applicant, which plea appeared to be wholly bogus, the learned Court below has not erred in disbelieving the evidence relied upon by the applicant.
The applicant claims to be a manual labourer. The award of maintenance allowance from the applicant, @ Rs. 3000/- per month, does not suffer from any manifest illegality/infirmity.
Then learned counsel for the applicant submits that the learned Court below has erred in awarding maintenance allowance from the date of the application without assigning any special reason.
Considering the fact that no interim maintenance allowance had been awarded and her application remained pending for two years and further considering the fact that there is nothing to doubt the finding of the learned Court below that the opposite party no.2 does not have any means of sustenance, the award of monthly maintenance allowance from the date of the applicant appears to be justified.
Insofar as the order has been made for payment of maintenance amount from the date of application, I do not find any error in the same in view of the fact that the application had been filed by the opposite party, which ought to have been decided within a period of 2 months from that date. However, the same was not decided for more than 92 months from the date when such application was filed.
For a very long time, the opposite party did not receive any amount towards maintenance as had been claimed by her and which under law, she was entitled to. Also, even upon amount as claimed becoming payable she did not become entitled to any interest for the inordinate delay.
The cost of such delay, has to be borne by the applicant herein and not the opposite parties/claimant especially, when the law created an expectation for the application to be decided within sixty days of it being filed.
Also, there does not appear to exist any material whereby the delay caused in the proceedings may be attributed to the opposite party.
The amount of monthly maintenance allowance being minimal, it is the arrears of that allowance, when paid would be such as may be able to defray the costs of dignified existence at the sufferance of the applicant. Such expenses may be assumed to be such as would have been necessarily borne by the applicant, had the opposite party resided with him all this while.
The applicant cannot deny the care to the opposite party-his wife, for the period she has not resided with him for reason of marital discord, except if the bar of section 125 Cr. P.C. operates. No such bar operates in this case. Consequentially, though the opposite party no.2 may have stayed physically apart from the applicant, the applicant has to still bear her expences necessary to preserve her dignified human existence, keeping in mind the financial and social status of the parties.
Also, the applicant cannot be heard to say, that he would bear such expenses only from the date of the order. The applicant-an able bodied person is responsible to take care of all the financial needs of his wife from her marriage and not the date from which the court passes an order in that regard. Only upto the date, an application is made, would a defence be available to the applicant that such needs have been taken care of. Also, the learned court below has not found the opposite party to be a person with any earning to provide for her own needs.
Therefore, in my view the award of the maintenance from the date of application does not suffer from any infirmity.
In so far as the applicant has prayed for time to make good the defaulted amount, looking into the facts it does appear that the applicant is a labour. The ends of justice would be met, if the applicant is allowed some time to make such deposit.
Accordingly, the instant application is disposed of with the following directions:
1. Subject to the applicant furnishing adequate security to the tune of Rs. 1,00,000/- to the satisfaction of the court below in the shape of other than cash or bank guarantee by 15.5.2018, further coercive measures adopted against the applicant shall remain stayed, subject to other conditions provided herein.
2. The applicant shall continue to pay the monthly maintenance allowance from the period May, 2018 onwards as and when it becomes due, in the manner provided by the court below under the impugned award.
3. The applicant shall further pay Rs. 9,000 /- towards maintenance allowance for the period February, 2018 to April, 2018 on or before 31.5.2018.
4. Subject to the applicant having complied with the above, the amount of Rs. 87,000/- (approximately) being arrears of maintenance allowance for the period from the date of application till the date of order shall be deposited in six quarterly instalments, such instalments being payable on or before 30.6.2018, 30.9.2018, 31.12.2018, 31.3.2019, 30.6.2019 and 30.9.2019, respectively. The first four instalments would be of Rs. 15,000/- each while the fifth/last instalment would be for the balance amount.
5. Any amount that may have been deposited by the applicant towards monthly maintenance allowance, in the proceedings giving rise to the instant revision application would be adjusted against the last installment/s.
All the amounts so deposited by the applicant in the Court below shall be released to the opposite party no.2 forthwith, upon due verification.
However, it is made clear that in the event of failure on part of the applicant to comply with any part of the order, coercive measures be revived from that stage without any further reference to this Court and recoveries be made from the applicant in compliance of this order.
Disposed of.
Order Date :- 26.4.2018 Mini