Reserved On: 13.09.2019
Deliver On: 27 .09.2019
Court No. - 82
Case :- CRIMINAL REVISION No. - 3592 of 2017 Revisionist :- Mukesh Sharma Opposite Party :- State Of U.P. And Another Counsel for Revisionist :- Yogesh Kumar Counsel for Opposite Party :- G.A.,Nigamendra Shukla
Hon'ble Narendra Kumar Johari,J.
1. The present Criminal Revision is directed against the judgment and order dated 26.08.2017, passed by learned Additional Judge/Family Court/F.T.C.-IV, Bulandshahar, in maintenance Case No.1541 of 2013 (Smt. Shikha Sharma Vs. Mukesh Sharma), under Section 125 Code of Criminal Procedure (hereinafter referred to as “Cr.P.C.”), Police Station- Khurza Nagar, District-Bulandshahar, whereby the application of applicant/respondent under Section 125 Cr.P.C. has been allowed by the Court. The Court had ordered the revisionist/opposite party to pay Rs.6,000/- per month as maintenance allowance from the date of order, which has been challenged by the revisionist/opposite party in present Revision.
2. Brief facts of the case are that the applicant/respondent is wife who filed the application under Section 125 Cr.P.C. on the ground that revisionist/opposite party who is her husband has tortured and deserted her in furtherance of demand of dowry. Her husband opposite party/revisionist has sufficient means and is an engineer by profession who had declared his income Rs.25,000/- per month and possesses 8 bighas of land. Revisionist/opposite party neither taking care of her nor providing money for her maintenance. She has no means for her maintenance. She prayed that revisionist/opposite party be ordered to pay Rs.7,500/- per month as maintenance allowance.
3. In reply, opposite party/revisionist filed his written objection before Court concerned and mentioned that applicant/respondent who is his legally married wife started quarrelling and cruel behaviour with him and with his family members just after two months of marriage. She willfully left her matrimonial home and chosen to reside with her mother. Opposite party/revisionist is ready to bring her back but she is denying without any reason. He is an unemployed person, whereas applicant/respondent is doing her private business and by profession she is earning Rs.20,000/- per month, therefore, she is not entitled to get any amount as maintenance from opposite party/revisionist.
4. During the course of hearing of the case before court concerned, applicant/respondent has examined herself as PW-1. On the other hand, revisionist/opposite party has deposed as OPW-1.
5. Learned counsel for the revisionist/opposite party confined his argument only on quantum of maintenance allowance granted to respondent by impugned order and submitted that the learned court below has not considered the financial status of the revisionist. He is a labour class person and has no fixed income. Learned court below has not considered the admitted facts that respondent/applicant is earning Rs.2,500/- by teaching in school. Learned Sub-ordinate Judge concluded that income of revisionist/opposite party is about Rs.10,000/- per month only, even then he has ordered to pay Rs.6,000/- per month as maintenance allowance which is exorbitant and unjust. Learned court below has not discussed the grounds upon which Rs.6,000/- was awarded as maintenance allowance upon total income of Rs.10,000/- per month and prayed to set aside the judgment under revision.
6. Per contra, learned counsel for opposite party as well as learned A.G.A. has argued that the order of learned court below is well discussed.
The Court has appreciated the evidence produced by the parties properly and concluded that revisionist/opposite party has sufficient means. He is healthy and able bodied person and earning Rs.10,000/- per month.
7. Heard learned counsel for the revisionist/opposite party and learned counsel for the respondent/applicant as well as learned A.G.A. for the State and perused the record.
8. If a husband having sufficient means neglects or refuses to maintain his wife who is unable to maintain herself, a Magistrate of competent jurisdiction may pass order under Section 125 Cr.P.C. against husband to make a monthly allowance for the maintenance of his wife. The provisions of Section 125 Cr.P.C. reads as under:-
"125. Order for maintenance of wives, children and parents.-
(1) If any person having sufficient means neglects or refuses to maintain-
(a) his wife, unable to maintain herself, or
(b) his legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or
(c) his legitimate or illegitimate child (not being a married daughter) who has attained majority, where such child is, by reason of any physical or mental abnormality or injury unable to maintain itself, or
(d) his father or mother, unable to maintain himself or herself, a Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, father or mother, at such monthly rate not exceeding five hundred rupees in the whole, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to time direct:
Provided that the Magistrate may order the father of a minor female child referred to in clause (b) to make such allowance, until she attains her majority, if the Magistrate is satisfied that the husband of such minor female child, if married, is not possessed of sufficient means:
Provided further that the Magistrate may, during the pendency of the proceeding regarding monthly allowance for the maintenance under this sub- section, order such person to make a monthly allowance for the interim maintenance of his wife or such child, father or mother, and the expenses of such proceeding which the Magistrate considers reasonable, and to pay the same to such person as the Magistrate may from time to time direct:
Provided also that an application for the monthly allowance for the interim maintenance and expenses of proceeding under the second proviso shall, as far as possible, be disposed of within sixty days from the date of the service of notice of the application to such person.
Explanation.- For the purposes of this Chapter,-
(a) " minor" means a person who, under the provisions of the Indian Majority Act, 1875 (9 of 1875 ); is deemed not to have attained his majority;
(b) "wife" includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried.
(2) Any such allowance shall be payable from the date of the order, or, if so ordered, from the date of the application for maintenance or interim maintenance and expenses of proceedings, as the case may be.
(3) If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in the manner provided for levying fines, and may sentence such person, for the whole or any part of each month' s allowances remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made:
Provided that no warrant shall be issued for the recovery of any amount due under this section unless application be made to the Court to levy such amount within a period of one year from the date on which it became due:
Provided further that if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if he is satisfied that there is just ground for so doing.
Explanation.- If a husband has contracted marriage with another woman or keeps a mistress, it shall be considered to be just ground for his wife' s refusal to live with him.
(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.
(5) On proof that any wife in whose favour an order has been made under this section is living in adultery, or that without sufficient reason she refuses to live with her husband, or that they are living separately by mutual consent, the Magistrate shall cancel the order."
9. The right of a destitute wife to get maintenance is essentially a civil right accordingly the remedy provided under Chapter IX of Cr.P.C. The procedure laid down in this Chapter is enacted as a measure of social justice and are dealt with summoning in a criminal Court for the purposes of speedy disposal on grounds of convenience and social order.
10. In support of his argument, learned counsel for the revisionist has cited the case law of Paramveer Singh Vs. Suresh Kunwar (2008) 2 DMC 276.
11. Usually, the Revisional Court cannot interfere with the finding of fact given by Sub-ordinate Court, but when it is shown that impugned order has been passed without judicial application of mind. The order can be challenged under revisional jurisdiction. It has been argued by learned counsel for the revisionist that in present case, learned lower court has not given any reason for apportioning Rs.6,000/- as maintenance allowance to applicant/respondent out of Rs.10,000/- the total income of revisionist/opposite party.
12. The Court under Section 401 Cr.P.C. has power to make any amendment or any consequent or any incidental order that may be just and proper for adjudication.
13. In the present case, applicant/respondent has mentioned in Paragraph-8 of his application under Section 125 Cr.P.C. that revisionist/opposite party is capable to provide maintenance to applicant/respondent. He has shown is income Rs.25,000/- per month. Apart from that, she has further mentioned in application that applicant/respondent has no means of earning, whereas revisionist/opposite party projects himself as engineer. He has sufficient income of his joint family and he is the owner of a house in Ghaziabad.
14. In her oral evidence of PW-1, applicant/respondent has mentioned in her examination-in-chief that at the time of marriage, revisionist/opposite party has shown his working as engineer in Stambh Gold Company, Noida and his income as Rs.25,000/- per month. He has his own house in Ghaziabad. He has given the upper floor of his house on rent and he has 8 bighas of land in Agra. He is the only son of his father. Further, she has stated in her oral evidence that revisionist/opposite party is posted as mechanical engineer in Stambh Gold Company, Noida. She has admitted that she has no documentary evidence regarding her aforesaid contention.
15. In reply, learned counsel for the revisionist/opposite party has mentioned in paragraph-12 of his objection that revisionist/opposite is an unemployed person. Due to his engagement in pairvi of false case filed by respondent/applicant, he is unable to do his labour works properly. In paragraph-13, he has mentioned that applicant/respondent is post graduate educated lady. She is doing her own business and earns Rs.20,000/- by teaching. She is able to maintain herself and her mother. In his oral evidence, OPW-1, the revisionist/opposite party has deposed that he does labour work and repairs sewing machine by hacking. He is high school passed person. He was having one house in Agra, but house in Ghaziabad has been constructed after sale of house in Agra. He has meagre income. However, revisionist/opposite party has not denied in specific words in his objection and evidence that he is not an engineer.
16. Both the parties have failed to submit any documentary evidence regarding the income and means of each other.
17. In this oral evidence, respondent/applicant has admitted that she is teacher in a private school and earns Rs.2,500/- per month.
18. Revisionist/opposite party has not disputed the fact that he is a healthy and able bodied person. Learned lower court has also concluded in its judgment that revisionist/opposite party is a healthy person.
19. If a man is healthy and able bodied he must be held to possess sufficient means to support his wife, children and parents. “Sufficient means” should not be confined to the actual pecuniary resources but should have reference to the earning capacity. The wording "Means" as used in the provision does not mean the tangible property or income only but also his capacity, potentialities and status of living.
20. It has been held by this court in the case of Chandrapal vs Harpyari And Anr. reported in 1991 CRI. L. J. 2847 that:-
"13. In the case of Mohammad Ayyub Vs. Zaibul Nissa, 1974 (Vol. 2) Criminal Law Journal 1237 this Court held that the quantum of allowance directed to be paid by the husband to the wife has relevance to his means. Where the Magistrate does not give any thought to the question as to what are the means existing or potential of the husband Justifying an order for payment or allowance to his wife, the order is liable to be set aside."
(emphasized) On this point the another Bench of Orissa High Court in the case of Basanta Kumari Mohanty Vs. Sarat Kumar Mohanty reported in 1982 CRI. L.J. 485 held in para 7 that:-
"7. No doubt an order Under Section 125 can be passed only if a person having sufficient means neglects or refuses to maintain his wife, child, parents etc. It is, however, well settled that the expression 'means' occurring in Section 125 does not signify only visible means, such as, real property or definite employment and if a man is healthy and able-bodied, he must be held to be possessed of means to support his wife, child etc. The Courts have gone to the extent of laying down that the husband may be insolvent or a professional beggar or a minor or a monk, but he must support his wife so long as he is able- bodied and can eke out his livelihood. "
21. In the present case, revisionist/opposite party has not denied that he is not a fit and able bodied person, therefore, the revisionist/opposite party cannot take defence that he is unable to earns and unable to provide maintenance to his wife.
22. In absence of any documentary evidence, considering the rival contentions, learned lower court has rightly held that Rs.10,000/- as earning of revisionist/opposite party.
23. Considering the earning of revisionist/opposite party as Rs. 10,000/- per month, learned lower court has passed the order to pay Rs.6,000/- per month to applicant/opposite party, but awarding above maintenance allowance, learned lower court has failed to consider and discuss the earning of respondent/applicant. Applicant/respondent is also a healthy and young lady. She is also doing the job of teaching and she has admitted in her evidence that her income is Rs.2,500/- per month. If she gets Rs.6,000/-per month from revisionist/opposite party, her income arrives Rs.8,500/- per month. On the other hand, revisionist/opposite party will have Rs.4,000/- per month in his hand. It is not just and proper.
24. Learned counsel for the revisionist/opposite party has submitted that the maintenance allowance should be 1/5th of income of husband. But, he could not explain the reasons why in present scenario a wife should be given only 1/5th income of her husband as maintenance allowance.
25. Taking the facts and circumstances of the case and equity into consideration, the maintenance allowance Rs.6,000/- as granted by impugned order to respondent/applicant is liable to be reduced to Rs.4,000/- per month, so that the income of respondent/applicant will be 6,500/- per month and income of revisionist/opposite party will be Rs.6,000/- per month. As it has been proved by the evidence of respondent/applicant that she is working and earning Rs.2,500/- by teaching, hence the aforesaid maintenance allowance Rs.4000/- per month be paid to respondent/applicant from the date of order of lower court.
26. The revision is liable to be allowed partly.
27. Accordingly, the revision is allowed partly.
28. Cost easy.
Order Date :- 27/09/2019 C MANI / SK Goswami