Court No. - 49
Case :- CRIMINAL REVISION No. - 969 of 2018 Revisionist :- Deepak Sonkar Opposite Party :- State Of U.P. And 3 Others Counsel for Revisionist :- S.S. Sharma,Sanjay Kumar Chaurasia Counsel for Opposite Party :- G.A.
Hon'ble Saumitra Dayal Singh,J.
Heard Sri Rahman Khan, learned counsel for the applicant and learned A.G.A. for the State.
The present revision has been filed to set aside the judgement and order dated 5.1.2018, passed in Case No.235 of 2014 (Smt. Chhoti Sonkar and others Versus Deepak Sonkar and others) u/s 125 Cr.P.C., Police Station Ghosi, District Mau.
By the order dated 5.1.2018, the application filed by opposite party nos. 2, 3 and 4, under Section 125 Cr.P.C., has been allowed and maintenance allowance @ Rs. 3,000/- per month to opposite party no. 2; @ Rs. 2,000/- each, to opposite party no. 3 and 4 has been awarded from the date of their application being 13.1.2014. Further, the applicant was given time of two months to deposit the arrears from the date of the application to the date of the order.
Learned counsel for the applicant submits that the opposite party no.2 was not entitled to any maintenance allowance in view of the bar created under Section 125(4) Cr.P.C. It would be relevant to extract the provisions of 125 (4) Cr.P.C. which reads as under:
"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."
Relying on the aforesaid provision, it has been submitted that the applicant was always ready and willing to allow the opposite party no.2 to live with him, but that the opposite party no.2 refused without any sufficient reason to live with the applicant. Therefore, she was not entitled to any maintenance.
Elaborating the aforesaid submission, it has been stated that the present applicant had merely stated in his objection that he was not earning well enough to be able to provide for the living of the opposite party no.2 in a 'big city', but that in future, when his earnings would increase, he would take the opposite party no.2 with him.
Till then, it appears, the applicant had proposed that opposite party no.2 reside at his ancestral house in a village.
Since the opposite party no.2 had refused to accept such an offer made by the applicant, it has been submitted, she became dis-entitled to receive maintenance allowance u/s 125(4) Cr.P.C.
Reference has also been made to proceedings for mediation that had been undertaken while the matter remained pending before the learned court below. It has thus been suggested that the applicant was always ready and willing to allow opposite party no.2 to live with him, subject to his financial condition allowing him to do so.
However, it is undisputed that the mediation proceedings had failed or remained inconclusive and therefore, the application under Section 125 Cr.P.C. came to be decided on its own merits.
Coming back to the order passed by the learned court below, it is seen that a specific issue no.3 was framed by the learned court below as to whether opposite party no.2 had parted company with the applicant without any sufficient reason.
While dealing with the aforesaid issue, learned court below considered the statement of the opposite party no.2 that the applicant was continuously residing at Bangalore and that he was earning about Rs.50,000/- per month. She then alleged that demands of dowry were made from the said opposite party and that she was turned out of her matrimonial home. She further alleged that the applicant did not enquire out about her well being etc.
The learned court below then considered the stand taken by the applicant in his written objection filed under Section 125 Cr.P.C. In the additional plea raised in paragraph 5 of the said objection - that has also been read out by learned counsel for the applicant, it had been stated that the applicant keeps travelling in connection with work and considering his current level of earning, he is not in a position to maintain opposite party no.2 in a 'big city'. He further stated that he would be able to provide for her living with him as he starts earning more.
Other than the aforesaid averments, no other statement appears to have been made in the objections, nor any evidence appears to have been led in that regard.
Learned counsel for the applicant has relied upon certain documents which are part of written arguments etc. to submit that they were evidence led before the learned Court below.
Clearly, the argument so advanced is misconceived inasmuch for a document to constitute evidence, it must have been proven before the learned court below which is not the case here.
As far as oral evidence led by the applicant is concerned, copy of the statement given has been annexed to the present application. In the said statement, the applicant had admitted to being an able bodied person. The applicant denied statements pertaining to the demand of dowry etc., he also denied the allegations of torture. He further stated that he had instituted proceedings under Section 9 of The Hindu Marriage Act, for restitution of conjugal rights.
From the pleadings and evidence led by the applicant before the learned Court below, it could not be said that the opposite party no. 2 had chosen to reside separately from the applicant without sufficient reason. In fact, it emerges from the argument advanced by the learned counsel for the applicant itself that according to the applicant he could not provide for the means for opposite party no. 2 to live with him at Bangalore/'big city'.
Once the applicant had taken a stand that he could not provide for the means for the opposite party no. 2 to live with him in a 'big city'/Bangalore, it did not remain open to him to thereafter contend that the opposite party no. 2 had refused to live with him without sufficient reason. Her refusal, if any to live at the ancesteral home of the applicant, while the latter continued to reside at Bangalore, could never amount to her refusal to live with him.
Thus, from a perusal of the facts and evidence, it was clear that the opposite party no.2 who is the legally wedded wife of the applicant had never refused to live with the applicant without any sufficient reason. Refusal made by the opposite party to live with the applicant's parents and other family members, at his village residence, (when admittedly the applicant was residing elsewhere) cannot create or constitute a bar under Section 125(4) of Cr.P.C. The argument advanced by learned counsel for the applicant is thus misconceived.
It is clear that the opposite party no.2 was willing to reside with the applicant at Bangalore, but that the applicant merely stated that with his present level of income, he would not be able to maintain her in a 'big city'. The statement made by the applicant before the learned court below was wholly vague and unworthy of any credence. As to his current income and engagement, the evidence led by the applicant appears to be silent and vague. There is no disclosure made therein of such facts.
Therefore, the bar under Section 125(4) Cr.P.C. did not arise. The learned Court below has not erred in granting maintenance allowance to the opposite party no. 2.
Mere pendency of the proceedings for restitution of conjugal rights also cannot stand in the way of maintenance allowance being provided, in the meanwhile.
These being summary proceedings under Section 125 Cr.P.C., as are necessary to advance the cause of social justice to prevent vagrancy and destitution and to preserve human life and dignity, only this much was sufficient for the application to be allowed that the opposite party no.2 was residing separately and that the bar of Section 125(4) did not arise.
The other rights that the parties may claim especially for restitution of conjugal rights, etc. are left open to be raised in proper proceedings.
As to the quantification of the monthly maintenance allowance before the learned Court below, the opposite party no. 2 had in her statement testified that the applicant earns about Rs. 50,000/- per month. The applicant himself admitted that he travels in connection with his work. However, as to his actual earnings, the applicant adopted a vague and ambiguous stand by stating that he does not earn enough without specifying the amount of his earnings. Other than such a vague and general denial, the applicant did not lead any evidence.
Consequentially, the applicant having not brought on record any material or credible evidence as to his actual earnings and in view of the fact that it stood established that the applicant was engaged as a paint contractor, coupled with his own admission that he used to travel in connection with his work, the estimation made by the learned Court below that the applicant is in receipt of earnings in the range Rs. 25,000 – 30,000 per month is neither perverse nor erroneous or excessive.
Some guess work or estimation is necessary to be made in such circumstances when the applicant who is in receipt of the income chooses not to make disclosure of the same. In the totality of the facts and circumstances of the case, the estimation of the income of the applicant at Rs. 25,000 – 30,000 per month is wholly just and proper. The finding in that regard does not suffer from any infirmity.
Another objection has been raised to award the maintenance from the date of the order and not the date of the application.
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 on 1.1.2014, which ought to have been decided within a period of 60 days from that date. However, the same has been decided more than 48 months from the date when such application was filed.
For a very long time, the opposite parties did not receive any amount towards maintenance as had been claimed by them and which under law, they were entitled to. Also, even upon amount as claimed becoming payable they did not become entitled to any interest for the inordinate delay.
An application filed under section 125 Cr.P.C., is a loud cry for help for means to sustain life with dignity which, the legislature expects, be answered promptly. The fact that such a cry made by the applicants is often doubted by the person at whose sufferance the order (is eventually made) and therefore the application remains pending for a long period time, cannot itself be a ground to deny the help cried out for, for the period such application remained pending. To do that would compromise human dignity that section 125 Cr.P.C. seeks to protect, and to risk vagrancy that it seeks to prevent.
To hold otherwise would also be to reach self contradicted conclusions. Once, upon objections being filed, evidence being led and after hearing all parties, it has been found that the claimants did not have the means to sustain themselves for any period, it cannot then be said, at the same time, that too without assigning any reason that such means would be provided from the date of the order and not the date from which the claimants had established, they had no means.
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 in favour of the application to be decided within sixty days of it being filed.
Then, there does not appear to exist any material or other mitigating circumstances whereby the delay caused in the proceedings may be attributed to the opposite parties.
The claimants, in such cases may have somehow survived the period of pendency of the application. However, their survival cannot be evidence or proof of their not having required the help for the period (often years) gone by. Costs of survival have to be presumed to have been met by the claimant party, from whatever sources. They must be defrayed by the person who is held liable to provide for maintenance, unless the contrary is proved.
The amount of monthly maintenance allowance being minimal, it is the arrears of that allowance, when paid may 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 parties resided with him all this while.
The applicant cannot deny the care to the opposite parties-his wife and his children, for the period they have not resided with him, for reason of marital discord. Consequentially, though they may have stayed physically apart from the applicant, he has to still bear the expenses that may be assumed to have been met to preserve their dignified human existence, keeping in mind the financial and social status of the parties.
Also, the applicant as an able bodied person is responsible to take care of all the financial needs of his wife and child from beginning and not from the date on 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 mother/opposite party no. 2 to be a person with any earning to provide for the latter's needs.
Even otherwise, such a plea is being raised in numerous cases. It is common fact noticed in all such cases that proceedings under section 125 Cr.P.C. are almost never concluded within 60 days in accordance with the legislative spirit. In many cases the applications are decided with a delay ranging between two to five years.
To accept the argument advanced by learned counsel for the applicant would be to incentivize delay for the benefit of the person who has to provide for the means of sustenance and to the peril of the hapless for whose benefit the provision of section 125 Cr.P.C. exists.
In any case, the date of the order has no bearing to the date from which the claimant seeks relief. That date is indeterminate and varies from case to case. To accept the date of the order as the date from when maintenance allowance is to be allowed, in absence of any reason given in such order, may render the order arbitrary, to that extent.
Therefore, in my view the award of the maintenance from the date of application does not suffer from any infirmity.
However, considering the facts that the maintenance allowance has been first awarded by order dated 05.01.2018 w.e.f. 13.01.2014; the applicant is engaged as a paint contractor and does not have a fixed/certain income and; the amount to be paid to opposite parties would be received in lump sum, some consideration should have been made by the learned court below to the aforesaid factors while providing for maintenance allowance for the period 13.01.2014 to December, 2017 and some concession should have been made in that maintenance allowance, for 48 months.
Since the matter is old, it may not be desirable to remit the matter to the learned court below at this stage. Similarly, no useful purpose may be served in keeping this revision pending any further, in view of the order proposed to be passed, keeping in mind the interests of the opposite parties.
Thus, leaving it open to the opposite parties to apply for recall of this order, if need arises, the present revision is disposed of with the following directions:
1. The award of monthly maintenance allowance @ Rs. 3,000/- per month to the opposite party no. 2 and @ Rs. 2,000/- (each) per month to the opposite party nos. 3 and 4 from the date of the impugned order dated 05.01.2018, is sustained.
2. For the period from date of application, being 13.01.2014 to December, 2017, the applicant shall be liable to pay maintenance allowance to opposite party no. 2 @ Rs. 2,000/- per month and to opposite party nos. 3 and 4 @ Rs. 1,000/- per month, each.
3. Subject to the applicant furnishing adequate security to the tune of Rs. 2,00,000/- to the satisfaction of the court below in the shape of other than cash or bank guarantee by 15.05.2018, further coercive measures adopted against the applicant shall remain stayed, subject to other conditions provided herein.
4. The amount of Rs. 28,000/- towards monthly maintenance allowance from the period January, 2018 to April, 2018 shall be paid by the applicant to opposite parties on or before 30.04.2018 or be deposited before the learned court below within that time.
5. The applicant shall continue to pay to opposite parties or deposit before the learned court below, monthly maintenance allowance from the period May, 2018 onwards as and when it becomes due, under the impugned order at the aforesaid rates i.e. @ Rs. 7,000/- per month (in all) to the opposite parties.
6. The applicant shall deposit a sum of Rs. 1,92,000/- being entire amount of arrears payable to the opposite parties in eight quarterly instalments, such instalments being payable on or before 31.05.2018, 31.08.2018, 30.11.2018, 28.02.2019, 31.05.2019, 31.05.2019, 31.08.2019 and 30.11.2019 respectively. The first seven instalments would be of Rs. 25,000/- each while the eighth/last instalment would be for the balance amount.
Any amount that may have been deposited by the applicant in the meanwhile may be adjusted towards payment/s to be made by the applicant by way of last installment/s.
Subject to aforesaid compliance being made, no coercive measure shall be taken against the applicant till the next date of listing.
All the amounts if deposited by the applicant in the Court below shall be released to the opposite parties forthwith.
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.
The present revision is accordingly disposed of.
Order Date :- 29.3.2018 Shalini