Court No. - 41
Case :- CRIMINAL MISC. WRIT PETITION No. - 11996 of 2005 Petitioner :- Deepak Gupta Respondent :- State Of U.P. & Another Counsel for Petitioner :- R.A. Mishra,Ashok K. Jaiswal Counsel for Respondent :- Govt. Advocate,Aditya K. Singh,K.K.Tripathi,Shyam Narayan Verma,Siddharth Jaiswal
Hon'ble Aniruddha Singh,J.
This writ petition has been filed by the petitioner, Deepak Gupta against the order dated 21.6.2005 passed by the learned Judicial Magistrate, Bhognipur Kanpur Dehat in Case No. 49/11 of 2004, under Section 125 Cr.P.C., whereby learned Magistrate granted Rs. 4,500/- per month as maintenance from the date of application, i.e. 19.6.2004 and order dated 26.10.2005 passed by Additional Sessions Judge (Fast Track Court No. 2), Kanpur Dehat, whereby the maintenance amount was reduced from Rs. 4,500/- to 2,000/-.
Heard Shri Siddharth Jaiswal, learned counsel for the petitioner, Shri Shaym Narayan Verma, learned counsel for the opposite party No. 2, learned AGA for the State and perused the record.
This fact has been admitted that the marriage between the petitioner and opposite party No. 2 was solemnized on 19.5.2002. Learned counsel for the petitioner has submitted that the impugned order passed by the courts below are illegal and improper. Petitioner is unemployed graduate and his source of income is only private tuition and he has no other source of income and he is teaching only three students and earning Rs. 1,200/- per month only.
From the perusal of order in Criminal Revision No. 90 of 2005, it transpired that revisional court has categorically discussed the income of petitioner and reduced the maintenance amount of Rs. 4,500 to Rs. 2,000/- and held that Deepak Gupta is well educated and teaching medical student and earning Rs. 4,000/- to 5,000/- per students.
Learned counsel for the petitioner submitted that his wife is living in adultery with Nirbhai Singh, but revisional court as well as trial court was not satisfied by this argument.
Question is whether the allegation that she is living in adultery, has been proved by the revisionist or not, in this regard it is pertinent to quote Section 125 (4) Cr.P.C.
"(4) 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 refuses to live with her husband, or if they are living separately by mutual consent."
It is settled law that only on the allegations of adultery, maintenance cannot be refused. It was held in the case of Mehbubabi vs. Nasir Farid, 1977 CrLJ 391 (Bombay-DB) that mere friendship with a man does not amount to living in adultery.
The burden of proof of living in adultery lies on husband that was not properly discharged to prove that the wife was living in adultery.
This Court found no ground to interfere with the order of learned Revisional Court.
Learned counsel for the petitioner submitted that vide order dated 30.11.2005, this Court has passed an interim order directing the petitioner to pay maintenance at the rate of Rs. 1,500/- per month. Hence this writ petition may be allowed partly. This Court find no force on this argument, the order passed by this Court was the interim order and not on merit.
Learned counsel for opposite party No. 2, Rakhi Gupta submitted that the order passed by the revisional court has no illegality, infirmity and writ petition is liable to be dismissed.
Accordingly, the writ petition is dismissed.
Order Date :- 26.7.2018 Sumaira