Judgment reserved on 17.04.2018 Judgment delivered on 30.05.2018
In Chamber
Case :- CRIMINAL REVISION No. - 2202 of 2016 Revisionist :- Chandra Prakash Verma Opposite Party :- State Of U.P. & Another Counsel for Revisionist :- Daya Shankar,Vijayendra Kumar Counsel for Opposite Party :- G.A.,Ajay Singh
Hon'ble Umesh Chandra Tripathi,J.
1. Heard Sri Daya Shankar, learned counsel for the revisionist, Sri Ajay Singh, learned counsel for opposite party no. 2 and Sri L.D. Rajbhar, learned A.G.A. for the State of U.P.
2. This criminal revision has been preferred against judgment and order dated 27.4.2016 passed by Principal Judge, Family Court, Jalaun at Orai in Misc. Case No. 316 of 2013 (Chandra Prakash Verma Vs. Smt. Neetu Verma and others) under Sections 127, 125 (5) Cr.P.C., whereby application of revisionist for cancellation of the judgment and order dated 30.11.2007 passed by Judicial Magistrate, Orai on an application of Smt. Neetu and others under Section 125 Cr.P.C., was rejected.
3. By the order dated 30.11.2007 passed by Judicial Magistrate, Orai, the application of the opposite party no. 2 (Neetu Verma) under Section 125 Cr.P.C., was allowed and revisionist (Chandra Prakash Verma) was directed to pay maintenance of Rs. 3,000/- per month to his wife (Smt. Neetu Verma), Rs. 2,000/- per month to his son (Master Harshvardhan) and Rs. 1200/- per month to his daughter (Km. Harshita) from the date of presentation of application under Section 125 Cr.P.C. It was further provided that Master Harshvardhan and Km. Harshita shall get maintenance until they attain majority.
4. Brief facts of the case are that revisionist (Chandra Prakash Verma) filed application under Section 125 (5) Cr.P.C., with the allegation that his wife (Smt. Neetu Verma) has left his home voluntarily. His wife (Smt. Neetu Verma) has illicit relation with one Rajesh before her marriage with (Chandra Prakash Verma). She never accepted the revisionist as her husband. In proceedings under Section 125 Cr.P.C., she falsely narrated wrong facts.
5. Learned counsel for the revisionist relied upon judgment dated 29.11.2016 of Hon'ble High Court of Madhya Pradesh in Anil Jain Vs. Smt. Sunita in Criminal Revision No. 829 of 2014 and also upon judgment of Mehrunnisa Vs. Noor Mohammad reported in 1971 AIR (All) 138 and contended that Smt. Neetu Verma is living in adultery and she refused to live with her husband without any sufficient reason. Accordingly, she is not entitled for any maintenance.
6. Learned counsel for the opposite party no. 2 contended that all these facts were pleaded by the revisionist in written statement submitted by him in proceedings under Section 125 Cr.P.C., and after examining all these facts, impugned order dated 30.11.2007 was passed by the Judicial Magistrate, Orai for maintenance. After passing of the order dated 30.11.2007 on application under Section 125 Cr.P.C., no change in the circumstance has taken place. Application under Section 127 Cr.P.C., was not maintainable. As such, there is no any illegality in the impugned order passed by the Principal Judge, Family Court.
7. Reliance placed by learned counsel for the revisionist in case of Anil Jain (supra) is not at all relevant for decision of the issue in hand. The Division Bench of this Court in Mehrunnisa (supra) has observed in paragraph no. 29 as follows:-
“29. Section 488 (4) provides that no wife shall be entitled to receive an allowance from, her husband under this section if she is living in adultery or if without any sufficient reason she refused to live with her husband or if they are living separately by mutual consent. This sub-section clearly applies to a case where an allowance has been fixed land thereafter the wife starts living in adultery or if without any sufficient reason she refuses to live with her husband or if they start living separately by mutual consent. We do not agree that by interpreting Sub-section (4) in this manner the very object of Section 488, Criminal P.
C. will be frustrated. The intention of the legislature is clear that a husband is not to be compelled to maintain a wife who becomes unvirtuous or who is so unreasonable as not to live with him and perform her wifely functions. The legislature also protected the wife by providing that she may refuse to live with the husband and perform her conjugal functions, if there is sufficient reason for the same. We do not see why if after making of the order under Section 488 (1) the wife contracts adulterous relations or becomes unreasonable and refuses to live with her husband, the husband should not be permitted to raise that plea when an application under Sub-section (3) of Section 488 is made by the wife and full effect should not be given to the wordings of Sub-section (4) which provides that no wife shall be entitled to receive an allowance from her husband under this section if she is living in adultery etc. After all an application moved under Sub-section (3) is an application made by the wife to receive an allowance. The mere fact, that if an allegation is made by the husband to the effect that the wife is living in adultery etc. will entail holding of an inquiry resulting in some delay, is no reason why effect should not be given to the provisions of Sub-section (4). We would be defeating the very object of the legislature, viz. that no allowance is receivable by a wife living in adultery etc. if we hold that the husband should not be permitted to raise such pleas when an application under Section 488 (3) is moved by the wife. It is obvious that if no allowance is receivable by wife on the ground mentioned in Sub-section (4) the Court should not pass an order under Sub-section (1) either, if those grounds exist at the time of considering the application for maintenance under Section 488 (1) and in that sense even Sub-section (1) of Section 488 is to be read with Sub-section (40). ”
8. As per the pronouncement, if wife starts living in adultery or without any sufficient reason, she refused to live with her husband after order of maintenance passed in her favour, maintenance allowance may be altered.
9. Perused the impugned order dated 30.11.2007 passed by Judicial Magistrate, Orai under Section 125 Cr.P.C. From perusal of the said order, it evident that all these grounds has been taken or should had been taken by the revisionist in his written statement in proceedings under Section 125 Cr.P.C. Learned Principal Judge, Family Court observed that revisionist failed to prove the illicit relation of his wife (Neetu Verma) with third person Rajesh. Revisionist (Chandra Prakash Verma) in the application under Sections 127, 125 (5) Cr.P.C., has alleged that his wife has illicit relationship with third person i.e. Rajesh before marriage. He must have raised this fact in proceedings under Section 125 Cr.P.C. In proceeding under Section 127 Cr.P.C., the judgment passed under Section 125 Cr.P.C., cannot be reviewed. Only on proof of change in circumstance, alteration in allowance for maintenance may be made.
10. Revisionist has failed to show any change in circumstance. Accordingly, I find no illegality in the impugned orders passed by the Principal Judge, Family Court and Judicial Magistrate.
11. Resultantly, this criminal revision stands dismissed.
Order Date :- 30.05.2018 Jaswant