Court No. - 83
Case :- CRIMINAL REVISION No. - 1632 of 2021 Revisionist :- Devendra Opposite Party :- State of U.P. and Another Counsel for Revisionist :- Santosh Kumar Singh,B.N.Singh Counsel for Opposite Party :- G.A.,Dhirendra Singh Rajput
Hon'ble Rajeev Misra,J.
1. Heard Mr. Manish Singh, Advocate holding brief of Mr. B.
N. Singh, learned counsel for revisionist, learned A.G.A. for State and Mr.Dhirendra Singh Rajput, learned counsel representing opposite party-2.
2. Perused the record.
3. This criminal revision under Sections 397/401 Cr.P.C. has been filed challenging judgement and order dated 29.01.20201 passed by Principal Judge, Family Court, Jalaun at Orai in Criminal Misc. Case No. 633 of 2017 (Smt. Sangeeta Vs. Devendra) under Section 125 Cr.P.C. Police Station Jalaun, District-Jalaun whereby aforesaid case has been allowed. Consequently, revisionist has been directed by court below to pay monthly maintenance to opposite party-2, Smt. Sangeeta @ Rs. 5,000/- from the date of order.
4. Record shows that opposite party-2, Smt. Sangeeta filed an application dated 27.11.2017 under Section 125 Cr.P.C. claiming maintenance from revisionist @ Rs. 5000/- per month. Same was registered as Criminal Misc. Case No. 633 of 2017 (Smt. Sangeeta Vs. Devendra) under Section 125 Cr.P.C. Police Station Jalaun, District-Jalaun. As per allegations made in aforesaid application, it was alleged by opposite party-2, Smt. Sangeeta that her marriage was solemnized with revisionist- Devendra on 15.05.2014 in accordance with Hindu Rites and Customs. In the aforesaid marriage, parents of opposite party-2, Smt. Sangeeta incurred expenses of Rs.5 Lakhs. Various goods and dowry were given by father of opposite party-2, Smt. Sangeeta at the time of her marriage. However, revisionist and other in-laws of opposite party-2, Smt. Sangeeta were not satisfied with goods and dowry brought by opposite party-2, Smt. Sangeeta at the time of her marriage. They demanded additional dowry of Rs.2 Lakhs and a Motorcycle. As demand of additional dowry was not fulfilled by parents of opposite party-2, revisionist and other in-laws of opposite party-2, committed physical and mental cruelty upon opposite party-2 for not bringing sufficient amount of dowry. Ultimately, opposite party-2 was ousted from her marital home about 10-11 months prior to filing of above mentioned application. Opposite party-2, Smt. Sangeeta, further alleged that she is unemployed and therefore, dependent upon her father. Consequently, opposite party-2 is unable to maintain herself. Details regarding income of revisionist were also mentioned in the application and on basis thereof, opposite party-2, Smt. Sangeeta claimed monthly maintenance from revisionist @ Rs. 5,000/- per month.
5. Aforesaid application filed by opposite party-2 was opposed by revisionist. He accordingly filed his written statement/objections (paper no. 27 Ka). Revisionist admitted the factum regarding his marriage with opposite party-2, Smt. Sangeeta. However, rest of the allegations made by opposite party-2 in her application under Section 125 Cr.P.C. were denied. According to revisionist, conduct of opposite party-2 was unbecoming of a pious daughter-in-law. Opposite party-2, Smt. Sangeeta has herself caused mental cruelty to revisionist. Allegations with regard to commission of physical and mental cruelty upon opposite party-2 on account of non-fulfilment of additional demand of dowry were completely denied by revisionist. Revisionist alleged that he earns a sum of Rs. 3-4 thousand per month by doing labour work. He also alleged that opposite party-2 is an educated lady. She has a B.A. degree to her credit. Furthermore, opposite party-2 is doing stitching and embroidery work. She also takes tuition. On the basis of aforesaid, it was alleged by revisionist that opposite party-2 is having income of Rs. 10,000/- per month. As such, opposite party-2 is having sufficient income to maintain herself. It was also pleaded that revisionist has already instituted a Suit for divorce as provided under Section 13 of Hindu Marriage Act, 1955. In the aforesaid suit, opposite party-2, Smt. Sangeeta upon appearance filed an application under Section 24 of Hindu Marriage Act, 1955 demanding maintenance which has been allowed by court below vide order dated 17.01.2019. By means of above order, revisionist has been directed to pay monthly maintenance to opposite party-2, Smt. Sangeeta @ 3,000/- per month. Aforesaid amount of maintenance is being regularly and continuously paid by revisionist. It was further pleaded that since opposite party-2 is residing separately on insufficient ground, opposite party-2 is not entitled to claim maintenance from revisionist.
6. Opposite party-2, Smt. Sangeeta in order to prove her case adduced herself as P.W.-1. She further filed documentary evidence as is clearly mentioned in internal page 4 of certified copy of impugned order dated 29.01.2020.
7. Revisionist in support of his defence adduced himself as O.P.W.-1. However, no documentary evidence was filed by revisionist in support of his defence.
8. After aforesaid exercise was completed, parties went to trial. Accordingly, court below on the basis of pleadings of parties, framed following three points of determination for effective adjudication of dispute:
i. Whether revisionist in spite of having sufficient means has ignored his wife and consequently, failed to maintain her.
ii. Whether opposite party-2 is unable to maintain herself.
iii. Whether opposite party-2, Smt. Sangeeta is entitled to claim maintenance even though she is living separately.
8. All the issues were taken up together. Upon evaluation of pleadings of parties and evidence on record both oral and documentary, court below came to the conclusion that opposite party-2, Smt. Sangeeta is legally wedded wife of revisionist. Court below further found that revisionist has been taking contradictory pleas. A categorical discussion regarding aforesaid is found at internal page 6 of certified copy of impugned order. Court below further held that it is established from record that opposite party-2, Smt. Sangeeta is living separately but there is nothing on record to show that revisionist has maintained opposite party-2 since then. As such, court below came to the conclusion that revisionist has ignored his wife i.e. opposite party-2, Smt. Sangeeta and consequently, failed to maintain her. Court below further considered the issue as to whether opposite party-2 is working and therefore, able to earn sufficient amount to maintain herself. Upon evaluation, court below found that opposite party-2, Smt. Sangeeta has categorically pleaded that she is a B.A. pass lady but she is not doing any work and therefore, depend upon her parents. Placing reliance upon judgement of Apex Court in Rajathi Vs. C. Ganeshan AIR 1999 Supreme Court 2374, court below held that burden to prove that wife, opposite party-2, Smt. Sangeeta is working and therefore able to maintain herself is upon husband i.e. revisionist. However, revisionist has failed to discharge this burden. Consequently, court below came to the conclusion that opposite party-2 has no sufficient means to even sustain herself.
9. On the pleadings of parties, court below further came to the conclusion that opposite party-2 has been ousted from her marital home on 10.01.2017 on account of non-fulfilment of additional demand of dowry i.e. a Motorcycle and Rs.2 Lakhs. Revisionist filed a suit under Section 9 of Hindu Marriage Act, 1955 for restitution of conjugal rights. However, same was got dismissed on 22.02.2018. Court below further found that revisionist has instituted a suit under Section 13 of Hindu Marriage Act, 1955 for divorce wherein court has passed an order in terms of Section 24 of Hindu Marriage Act to pay interim maintenance to opposite party-2, Smt. Sangeeta @ Rs. 3000/- per month. Thus court below concluded that opposite party-2 has been living separately from revisionist on sufficient grounds.
10. Learned counsel for revisionist contends that order impugned in present criminal revision is manifestly illegal and without jurisdiction. Court below has allowed application under Section 125 Cr.P.C. filed by opposite party-2, Smt. Sangeeta on conjuncture and surmises. Court below has failed to consider that pursuant to the order passed under Section 24 of Hindu Marriage Act, revisionist has been paying interim maintenance to opposite party-2, Smt. Sangeeta @ 3000/- per month. As such, opposite party-2 was not entitled to claim maintenance from revisionist under 125 Cr.P.C. It is further submitted by learned counsel for revisionist that since opposite party-2 is residing separately on insufficient grounds and is also having definite source of income, therefore, she is not entitled to claim maintenance from revisionist. Court below has not considered these aspects of the matter in true perspective but has erroneously shifted the burden upon revisionist to prove that opposite party-2, Smt. Sangeeta is a working lady and therefore, able to maintain herself. It is thus submitted that order impugned in present criminal revision is liable to be quashed and present criminal revision be allowed by this Court.
11. Per contra, learned A.G.A. has opposed this revision. Learned A.G.A. contends that order impugned in present criminal revision is perfectly just and legal and therefore not liable to be interfered with by this Court. Learned A.G.A. contends that it is a proved fact that marriage of revisionist was solemnized with opposite party-2. Opposite party-2 is thus legally wedded wife of revisionist. As such, revisionist is bound to maintain her. However, revisionist has failed to discharge this obligation. It is then contended by learned A.G.A. that it is now established from record that opposite party-2 is residing separately from revisionist since 10.01.2017. However, there is nothing on record to show that revisionist has been maintaining opposite party-2, Smt. Sangeeta i.e. his legally wedded wife since then. No material was filed before court below nor even before this Court to establish the same. Learned A.G.A. has also contended that though a ground has been taken in present criminal revision that pursuant to order passed by court concerned under Section 24 of the Hindu Marriage Act, interim maintenance @ 3000- is being paid by revisionist to opposite party-2, however, revisionist himself did not file any document regarding above before court below as is clearly evident from the recital contained at internal page 4 of the certified copy of impugned order. Learned A.G.A. has then taken the Court to relevant part of impugned order to demonstrate that revisionist has been taken contradictory pleas with regard to commission of mental cruelty by opposite party-2 upon himself and also has income. As such, revisionist has concealed true facts from the court. Learned A.G.A. also contends that it is an undisputed position that revisionist is an M.B.A. and therefore opposite party-2, Smt. Sangeeta is entitled to maintenance which commensurates with the status of parties. As such court below has not committed any illegality in allowing the application under Section 125 Cr.P.C. filed by opposite party-2. He therefore submits that no indulgence be granted by this court in favour of revisionist.
12. Having heard learned counsel for revisionist, learned A.G.A. for State, Mr. Dhirendra Singh Rajput, learned counsel representing opposite party-2 and upon perusal of material brought on record, Court finds that court below has recorded a clear and categorical finding that marriage of revisionist was solemnized with opposite party-2. As such, opposite party-2 is legally wedded wife of revisionist. Consequently, revisionist is legally and morally bound to maintain her. Court further finds that after evaluating pleadings of parties and evidence on record, court below has returned a definite finding that opposite party-2 is living separately from revisionist since 10.01.2017. However, there is nothing on record to show that revisionist has been maintaining his wife since then. As such revisionist has clearly ignored his legally wedded wife and therefore, failed to maintain her. Court further finds that though a ground has been taken that since revisionist is already paying Rs.3000/- per month towards interim maintenance to opposite party-2 pursuant to order passed by court concerned under Section 24 of Hindu Marriage Act, 1955, however for reasons best known to revisionist. Copy of order pursuant to which aforesaid payment is being made was not filed by revisionist before court below. No explanation has been offerred by revisionist regarding aforesaid omission. Court further finds that revisionist has been taking contradictory pleas which are at variance with the pleadings and evidence adduced by revisionist himself. Reference in this regard be made to the discussion made by court below at internal page 6 of certified copy of impugned order. Revisionist has thus tried to conceal the true facts from the court.
13. Considering the fact that, revisionist is an MBA and revisionist has failed to discharge his burden that opposite party-2 is earning and therefore, having sufficient amounts to sustain himself, court below has rightly awarded maintenance in favour of opposite party-2. Finding inferred by court below on the basis of pleadings of parties cannot be faulted with particularly when revisionist is a healthy man and is not suffering from any physical or mental disability.
14. On the basis of above, this Court has no hesitation to conclude that court below has not committed any jurisdictional error in passing order dated 29.01.2020. Court below has exercised its jurisdiction diligently and not with material irregularity. Findings recorded by court below are definite and cogent pleadings. Same cannot be said to be perverse, illegal or erroneous. It is well settled the once findings cannot be dislodged, the conclusion drawn by court below cannot be altered. Interim amount of maintenance awarded by court below commensurates with status of parties and further objective of section 125 Cr.P.C., which is a social and beneficial piece of legislation Opposite party-2 has right to live and not a right to exist.
15 However court below has awarded maintenance to opposite party-2 from date of order i.e. 29.01.2021. Same is manifestly incorrect and unsustainable in view of law laid down by Apex Court in Rajnesh Vs. Neha and others, 2021 (2) SCC 324.
16. Accordingly, impugned order dated 29.01.2021 is modified. Revisionist shall pay maintenance to opposite party-2 from the date of application.
17. With the aforesaid modification impugned order is maintained.
18. Present criminal revision is accordingly finally disposed of.
Order Date :- 30.9.2021/YK