Court No. - 49
Case :- CRIMINAL REVISION No. - 946 of 2018 Revisionist :- Kunwarsen @ Kunwar Singh Opposite Party :- State Of U.P. And 4 Others Counsel for Revisionist :- Manoj Kumar Srivastava 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.
The present revision has been filed to set aside judgement and order dated 20.12.2017, passed by learned Judge, Family Court, Bareilly, in Case Crime No.871 of 2010, and reject the application of Smt. Bhagwati under Section 125 Cr.P.C, and to stay the operation of the aforesaid order.
Present revision has been filed against the order of the Principal Judge, Family Court, Bareilly, dated 20.12.2017, by which maintenance allowance @ Rs.4,000/- per month to opposite party no.2 and @ Rs.1,000/- per month each to opposite party nos.3,4 and 5, has been awarded from the date of the application being 23.07.2010.
While the marriage between the applicant and opposite party no.2 is not disputed, the sole submission made by learned counsel for the applicant is against the quantum of maintenance allowance awarded that too, from the date of the application.
So far as the financial capacity of the applicant is concerned, opposite party no.2 had pleaded that the applicant is engaged in business of milk and cream and he derives income in the range of Rs.30,000-40,000 per month. In addition thereto, he has the agricultural holding of about 30 bighas and 15-16 buffaloes.
On the other hand, the applicant had stated that he was working as a manual labourer earning about Rs.2,000/- per month. However, during course of her cross-examination, no inconsistency or statement emerged such that as to doubt her statement that the applicant was a man of means, earning in the range of Rs.30,000-40,000/- per month.
The applicant also did not lead any documentary evidence to dispute the correctness of the statement made by the opposite party no.2 with regard to dairy business or as to the extent of his agricultural holding.
In absence of any evidence being led as to his own income which fact was in the special knowledge of the applicant, the estimate made by the learned court below as to the earning capacity or the financial means of the applicant, cannot be doubted.
While making an estimate in such cases, certain amount of guess work is necessarily involved. In absence of any direct evidence being led by the applicant as to his income to be estimated, he cannot now escape the adverse inference, if any, drawn in pursuance of evidence led by the opposite party. In view of the above, the estimate of the financial capacity of the applicant and consequently, the award of monthly maintenance allowance @ 4,000/- to opposite party no.2 and @ Rs.1,000/- per month to each of the opposite party no.3, 4 and 5, till they attain majority, does not warrant any interference.
It is then stated by learned counsel for the applicant that in so far as the award made applicable from the date of the application, the opposite party had filed application dated 3.7.2010, and the proceedings remained pending for almost more than seven years. No fact has been pleaded and no evidence has been brought on record to suggest that inordinate delay in the conclusion of the aforesaid proceedings was caused due to the conduct of the opposite parties.
Accordingly, the instant application is disposed of with the following directions:
1. Subject to the applicant furnishing adequate security for the entire amount of Rs. 6,30,000/- to the satisfaction of the court below in the shape of other than cash or bank guarantee by 30.04.2018, further coercive measures adopted against the applicant shall remain stayed, subject to other conditions provided herein.
2. The applicant shall continue to pay the monthly maintenance allowance from the period April, 2018 onwards as and when it becomes due, in the manner provided by the court below under the impugned award.
3. The applicant shall further pay Rs. 21,000/- towards maintenance allowance for the period January, 2018 to March, 2018 on or before 30.4.2018.
4. Subject to the applicant having complied with the above, the amount of Rs. 6,30,000/- (approximately) being arrears of maintenance allowance for the period from the date of application till the date of order shall be deposited in 13 instalments, such instalments being payable on or before 31.05.2018, 31.08.2018, 30.11.2018, 28.02.2019, 31.05.2018, 31.08.2019, 30.11.2019, 29.02.2020, 31.05.2020, 31.08.2020, 30.11.2020, 28.02.2021 and 31.05.2021 respectively. The first twelve instalments would be of Rs. 50,000/- each while the thirteenth/last instalment would be for the balance amount.
All the amounts if deposited by the applicant in the Court below shall be released to the opposite party no. 2 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 and recoveries be made from the applicant in compliance of this order.
Order Date :- 27.3.2018 Shalini