Court No. - 49
Case :- CRIMINAL REVISION No. - 967 of 2018 Revisionist :- Banarsi Das Opposite Party :- State Of U.P. And Another Counsel for Revisionist :- Sanjay Kumar Dubey 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.
Present revision has been filed to quash the judgement and order dated 8.1.2018, in Misc. Application No. 35 of 2013 (Smt. Vabita Vs. Banarsi Das) under Section 125 Cr.P.C. Police Station Sadabad District Hathras, passed by Judge Family Court/Additional Sessions Judge/F.T.C. Court No.2 Hathras Present revision has been filed against the order passed by the Family Judge/Additional Sessions Judge/F.T.C. Court 2, Hathras dated 8.1.2018, by which the application filed by opposite party no.2 under Section 125 Cr.P.C., being Case No.35 of 2013, has been allowed against the applicant and the direction has been issued for payment of monthly maintenance allowance @ Rs.4,000/- per month from the date of the application.
Solitary argument raised by the learned counsel for the applicants is that it is admitted case of the opposite party no.2 that she had been living with her parents for almost twelve years and that she had not filed any application for grant of monthly maintenance allowance till the institution of proceedings for divorce from the present applicant. It is therefore submitted that opposite party no.2 had refused to live with the applicant without any sufficient reason and was therefore dis-entitled to claim maintenance allowance under Section 125 (4) Cr.P.C.
It has also been submitted that learned court below had not framed any issue with regard to torture alleged by opposite party no.2 and therefore, the application for grant of maintenance in absence of such issue is erroneous.
In this regard, reliance has also been placed on part of the statement of opposite party no.2 recorded by the learned court below wherein, she had stated that she would not be agreeable to reside with the applicant even if the applicant were to take all due care.
While it is true that in view of her statement, the opposite party no.2 does appear to have indicated that she was not willing to reside with the applicant at any cost, however, it being a matter of her statement, the entire statement has to be considered before any conclusion can be drawn thereon.
In this regard, it is seen that the learned court below has considered the entire statement of the opposite party no.2 and found that she had first stated that the applicant had tortured her and had also assaulted her at times. It has further been her case that the family members of the applicant had also assaulted her at times.
Opposite party no.2 further stated that her marriage did not suffer anyhow while her father-in-law was alive, and that after his death, the family started harassing her and on account of that, she started living with her parents. Thus, the part of the statement of opposite party no.2, where she had refused to reside with the present applicant on any terms cannot be read in isolation. Learned court below therefore, has not made any mistake in reaching the conclusion that the opposite no.2 is entitled to maintenance allowance.
The other submission has been advanced that admittedly opposite party no.2 has filed application for grant of maintenance allowance after institution of the proceedings for grant of divorce and she did not institute any proceedings at an earlier point of time. It is therefore, submitted that the proceedings for grant of maintenance had been instituted purely by way of counterblast to the proceedings for divorce. Learned counsel further submits that divorce has been sought on the grounds of desertion and therefore, for that reason also, opposite party no.2 is not entitled to maintenance allowance.
In respect of the above, it is seen that as a matter of principle, it cannot be said that because the application for grant of maintenance is being filed subsequent to the institution of proceedings for divorce, such applicant would be disentitled to claim maintenance. On facts of this case, it is difficult to reach the conclusion that the applicant is not entitled to maintenance allowance especially in view of the entitlement of such allowance having been created by law, without any provision as may restrict the opposite party no.2 to claim maintenance from the applicant for reason of such application being filed subsequent to the institution of proceedings for divorce.
The argument as to non-framing of issue also cannot be accepted in view of the fact that proceedings under Section 125 Cr.P.C. are by very nature, summary proceedings to be instituted for advancement of the cause of social justice being preservation of human life and dignity as also to prevent vagrancy. So long as the parties to the dispute have been allowed, opportunity of hearing, pursuant whereto, they have led evidence and the court below has considered the same before reaching the conclusion whether the applicant was or was not entitled to maintenance, the mere non framing of an issue may not be fatal to the order passed by the learned court below, awarding the maintenance allowance.
In the instant case, there is no dispute that the parties had adequate opportunity to lead evidence which has also been considered by the learned court below. Therefore, the order passed by learned court below does not suffer from any infirmity.
So far as the amount of claim for maintenance allowance is concerned, learned court below has awarded the amount of Rs.4,000/- per month which is nearabout the minimum required to secure the purpose of Section 125 Cr.P.C., considering the high cost of living index in the present time.
Further, that order have been made effective from the date of the order, no interference is warranted in the present case.
It is further provided that the applicant may deposit the amount of maintenance allowance for the period January, 2018 to April, 2018, on or before 30.4.2018. He shall further continue to abide by the order dated 8.1.2018 and pay the amount of monthly maintenance allowance for the period May, 2018, onwards, as and when it falls due.
The present revision stands disposed of. Order Date :- 29.3.2018/Shalini