Court No. - 72
Case :- CRIMINAL REVISION No. - 3536 of 2018 Revisionist :- Mahboob Ali Opposite Party :- State Of U.P. And Another Counsel for Revisionist :- Gyan Prakash Mishra Counsel for Opposite Party :- G.A.
Hon'ble Ajit Kumar,J.
Heard learned counsel for the applicant and learned Additional Government Advocate.
According to the office report dated 24.11.2018, notice after due service upon the opposite party no. 2 has been received back. Thus, the opposite party no. 2 has though knowledge of the pendency of the present petition and yet has chosen not to put in appearance to contest the case.
This Court while entertaining the petition on 26.11.2018 had passed the order that the revision-applicant shall continue to pay Rs. 2,000/- per month by tenth to the opposite party no. 2. The order dated 26.11.2018 is reproduced hereunder:-
"Heard learned counsel for the revisionist and learned A.G.A for the State.
As per office report dated 24.11.2018 notice upon the opposite party no.2 has been served. No one has put in appearance on behalf of the opposite party no.2 List this revision in the third week of January, 2019 The impugned judgement and order dated 30.8.2018 passed by the learned Additional District & Sessions Judge/4th Fast Track Court/Additional Family Court , Bulandshahar in case no. 1073 of 2013 (Smt. Chandni Vs. Mahboob Ali) under section 125 Cr.P.C. shall remain stayed subject to the condition that revisionist shall keep on paying Rs.2,000/- per month by 10th of every month to the opposite party no. 2.
It is made clear that in case of non compliance of this order, the interim order granted to the revisionist shall automatically stand vacated."
This Court vide order dated 16.01.2019 directed the applicant to file an affidavit of compliance of the aforesaid order. Today, an affidavit of compliance has been filed annexing therewith a photo-copy of the deposit folio of Bank of Baroda evidencing the factum of deposit of Rs. 10,000/- on 21.01.2019. The affidavit today is taken on record.
Since the opposite party no. 2 has chosen not to participate in the proceedings in spite of due service, the Court proceeds to decide the matter ex parte.
Briefly stated facts are that the opposite party no. 2 and the present applicant were married with each other on 07.07.2002 but soon thereafter there appeared discord between the relations of the two on the ground as urged in the application for maintenance for ill-treatment of the opposite party no. 2 at the end of the present applicant and his parents.
Ultimately, she proceeded to live with her parents. Consequently, the applicant filed the case for restitution of conjugal rights bearing No. 94 of 2004 before the Civil Judge, Senior Division, Hapur, in which ultimately the parties agreed to compromise and an order dated 10.01.2005 was passed on the basis of the said compromise. It appears that the opposite party no. 2 though started living with the applicant but the marriage could not resume for a longer time and the relations went strained with the passage of time. Resultantly, a divorce took place between the two as per the Muslim Personal Law and the opposite party no. 2 started living with her parents. The applicant thereafter entered into second marriage and the second wife, now a duly wedded wife is living with the applicant. The opposite party no. 2 accordingly instituted a case for maintenance as she remained divorcee even after passing of the iddat period.
The maintenance application under Section 125 of the Code of Criminal Procedure was contested by the applicant and he took a stand that he is not earning much amount as he is only a labourer. He has already entered into second marriage and the wife and the parents are also living with him and therefore, in the absence of any another source of income, he would not be able to spend that much amount upon the opposite party no. 2 who is admittedly a divorcee, as directed by the Court below. If the Court below proceeded to pass an order for maintenance holding the applicant liable under Section 125 of the Code of Criminal Procedure, to maintain if the divorced wife and made an award of maintenance of Rs. 2,000/- per month.
The argument advanced by the counsel for the applicant is that the amount for maintenance awarded is too excessive and the Court is not justified in passing such order of maintenance in the absence of proper assessment of income. He argues that no evidence has been led by the opposite party no. 2 as to what exactly the amount of monthly income of the applicant is. On the contrary, he argues that it is agreed between the parties that the applicant was doing some embroidery and stitching work and it is from the income out of such source that he is somehow maintaining his family.
It is further argued by the counsel for the applicant that the relations between the two spouses had gone strained and ultimately resulted in divorce because of non co- operative behaviour of the opposite party no. 2. The way, the second marriage of the applicant has survived and the relations have been quite cordial and happy itself demonstrates that it is the opposite party no. 2 who has been chiefly responsible for the divorce.
It is also contended that once the compromise had reached between the parties and she was brought her to his place, it also cast duty upon the opposite party no. 2 as well to maintain the matrimonial knot between the two. It is the joint effort with which the marriage survives and if one takes a rigid stand the discord is liable to be the ultimate result.
Per contra, the argument advanced by learned Additional Government Advocate is that amount of Rs. 3,000/- is not such a huge amount considering the price index etc. for the survival of the human being and therefore, no interference is called for. It is also argued that under Section 125 of the Code of Criminal Procedure vide clause (b) to the explanation, the maintenance application at the end of the divorced wife is fully maintainable and the applicant cannot shirk of his responsbility. He therefore, states that the present revision petition is liable to be dismissed.
Having heard the counsel for the parties and having gone through the judgement impugned and pleadings raised in the revision petition, I find that three things emerge clearly on facts.
The first is that after the marriage, relations had gone strained but the applicant did make a sincere effort by instituting a civil case to bring his wife back to resume the marriage. The opposite party no. 2, his wife then put in her appearance and the compromise was reached. This shows clearly that there was a genuine and sincere effort at the end of the applicant to somehow restore the marriage but the manner in which soon after the compromise was reached in the said civil case, the wife again left the husband and started living with her parents, it can only be inferred that there was some problem in adjustment at the end of the wife and ultimately, the husband was forced to divorce as per the Muslim Personal Law.
The second one is also quite apparent on fact that except for bald allegations of demand of dowry, no such intrinsic evidence has been led at the end of the wife to demonstrate that she was continuously being ill-treated at the end of the husband namely the applicant and that because of the ill-treatment she was forced to live with her parents. Therefore, I find that there is clearly no justification at the end of the opposite party no. 2 to live with her parents even after the compromise was reached between the parties. Of course, after the divorce, the opposite party no. 2 was bound to live with her parents, as the divorce has come to disrupt the matrimonial knot finally. Of course, the wife is left with no option but to live with her parents.
The third aspect of the matter is a fact that clearly borne out from the records that there is no evidence to demonstrate that there has been a definitte income of the applicant. The Court has proceeded to presume that applicant being a healthy person must be earning Rs. 10,000/- at least and therefore, directed him to make payment of Rs. 3,000/- per month. The applicant in this petition is not only the person in the family, he has to take care of his second wife and also his parents as has been pleaded. If the assessed income of Rs. 10,000/- is to be divided in four persons, then Rs. 2,500/- comes in share of each person which by itself is a very meagre sum for survival in these days of rise in prices of basic things needed for survival.
The Court below, in the opinion of the Court, has not considered this aspect of the matter. The Court below in the absence of proper assessment of income, in the opinion of the Court, is not justified in making an award of Rs. 3,000/-. If Rs. 10,000/- has been assessed on the basis of presumption to be the earning of the applicant then at the most Rs. 2,000/- should have been awarded.
I therefore, find it to be justified to modify the award of maintenance passed by the Court below. The maintenance is reduced from Rs. 3,000/- to Rs. 2,000/- per month. However, the payment shall be paid by the applicant till the opposite party no. 2 gets re-married or she gets employed anywhere to earn her own livelihood.
It is always open for the applicant to move an appropriate application before the Court below if he comes to know the opposite party no. 2 has entered into second marriage after passing of the iddat period or that she has obtained some employment.
The revision petition is accordingly partly allowed. Consigned to record.
Order Date :- 23.1.2019 P Kesari