Court No. - 83
Case :- CRIMINAL REVISION No. - 2047 of 2021 Revisionist :- Mukund Lal Agrahari Opposite Party :- State of U.P. and Another Counsel for Revisionist :- Prashant Pandey Counsel for Opposite Party :- G.A.
Hon'ble Rajeev Misra,J.
1. Heard Mr. Prashant Pandey, learned counsel for revisionist and learned A.G.A. for State.
2. Perused the record.
3. This criminal revision under Sections 397/401 Cr.P.C. has been filed challenging judgement and order dated 04.03.2021 passed by Principal Judge (Family Court), Court No.-1, Varanasi in Case No.227 of 2008 (Smt. Sarika Agrahari Vs. Mukund Lal Agrahari) under Section 125 Cr.P.C. Police Station- Chaitganj, District-Varanasi whereby court below has allowed aforesaid case. Consequently, revisionist has been directed to pay maintenance to opposite-parties 2 and 3 @ Rs.3500 per month (i.e. Rs. 25,000/- for opposite party-2 and Rs. 1000/- for opposite party-3) from the date of application i.e. 15.05.2008
4. Record shows that opposite party-2, Smt. Sarika Agrahari opposite party-2 filed an application dated 15.05.2008 under Section 125 Cr.P.C. claiming maintenance @ Rs. 10,000/- per month for herself and Rs. 5,000/- per month, for her minor dauther. Aforesaid application came to be registered as Case No. 227 of 2008 (Smt. Sarika Agrahari Vs. Mukund Lal Agrahari) under Section 125 Cr.P.C. Police Station- Chaitganj, District-Varanasi. As per allegations made in aforesaid complaint, it was alleged by opposite party-2 that her marriage was solemnised with revisionist on 28.05.2006 in accordance with Hindu Rites and Customs. At the time of marriage, parents of opposite party-2 incurred expense of Rs. 6 Lakhs. Various goods, jewellery, clothes and cash were also given to revisionist at the time of marriage. However, revisionist and other in-laws of opposite-party-2 were not satisfied with goods, jewellery, clothes and cash brought by opposite-party-2 at the time of her marriage. As such, demand of additional dowry to the tune of Rs. 2 Lakhs was raised before opposite-party-2. When additional demand of dowry raised by revisionist and his family members was not fulfilled by opposite party-2 then she was subjected to physical and mental cruelty. From the wedlock of opposite-party-2 and revisionist, a daughter was born on 11.02.2007 at Government Women Hospital, Varanasi.
5. According to opposite party-2, revisionist deserted opposite- party-2 on 11.02.2007. Consequently, she was taken by her parents from the hospital to her parental home. Since then, opposite party-2 has been residing with her parents. It was also alleged that opposite party-2 has no means of income to sustain herself or her minor daughter. It was further alleged that revisionist has sufficient means having income or Rs. 1 Lakh per month. Details of commercial establishment and rental income were mentioned in the application in support of above.
6. On the bedrock of aforesaid allegations, opposite-party-2 claimed maintenance from revisionist at the rate of Rs.10,000/- per-month for herself and at the rate of Rs. 5000/- per month for her minor daughter. Further, a sum of Rs. 10,000/- was claimed towards litigation expenses.
8. Application for maintenance filed by opposite party-2 was contested by revisionist. He accordingly filed his written statement/objection (paper no. 15A). According to revisionist, opposite party-2 has been residing separately on insufficient grounds. Revisionist assassinated the character of opposite party-2 by alleging that daughter has not been born out of cohabitation of revisionist and opposite-party-2. It was also submitted that revisionist is not having any personal income. As such, opposite-party-2 is not entitled to receive any maintenance from revisionist. On the aforesaid premise, it was thus prayed that application for maintenance filed by opposite- party-2 be rejected.
8. After exchange of pleadings, parties adduced documentary evidence in support of their cases. Opposite-party-2 in support of her case filed the Marriage Card, Fees Card, Receipt of Fees and photocopy of F.I.R.. Revisionist in support of his defence filed photocopy of letter, Greeting Card. Opposite-party-2 adduced herself as P.W.-1 whereas revisionist adduced himself as D.W.-1. Parties went to trial and adduced oral evidence in support of their respective cases.
9. Court below upon consideration of pleadings of parties, oral and documentary evidence, came to the conclusion that it is a proved fact that marriage of revisionist was soleminized with opposite-party-2 on 28.05.2006 in accordance with Hindu Rites and Custom. Court below further came to the conclusion that from the wedlock of revisionist and opposite-party-2, a daughter was born on 11.02.2007 at Government Women Hospital, Varanasi. However, after birth of child, revisionist ignored opposite-party-2. Conseqently, parents of opposite party-2 took their daughter i.e. opposite party-2 from aforesaid hospital to their home. Court below further found that in view of above, opposite party-2 is living with her parents since 2007 but there is nothing on record to show that revisionist has maintained his legally wife and his minor daughter. As such, revisionist has ignored his wife and minor daughter since then and consequently failed to maintain them. With regard to the issue that daughter was not born out of cohabitation of revisionist and opposite party-2, court below discussed this issue in detail. From the material on record, court below discovered that revisionist had already instituted a suit for divorce in terms of Section 13 of Hindu Marriage Act, wherein also an application disputing the genealogy of the child was filed. However, on account of failure on the part of revisionist to comply with order of court below dealing with the suit for divorce, same was dismissed. Court below further held that since revisionist has failed to establish adultry on part of his wife, therefore, by virtue of law down in Arnakar Vs. Dr. Sharad Kumar Das, CRLJ 1995, 3526 and Raj Devi Vs. Ramlakhan 2008 CRLJ, 538, opposite party-2 is entitled to received maintenance from revisionist. Court below, also held that opposite-party-2 is not having any source of income, therefore, opposite-party-2 is entitled to receive maintenance from revisionist. Court below thus concluded that since revisionist is having a shop dealing with Cycle Parts, therefore, income of revisionist can be inferred as @ Rs. 8000/- per month. On the aforesaid premise, court below allowed the application filed by opposite-party-2 and consequently, directed revisionist to pay maintenance @ Rs. 3500/ (2500+1000) to opposite-party-2 alongwith her minor daughter.
10. Learned counsel for revisionist contends that order impugned is manifestly illegal and without jurisdiction. Court below has awarded maintenance in favour of opposite-party-2 without recording a definite finding regarding income of revisionist. It is then contended that opposite-party-2 is living separately on insufficient grounds and therefore, was not entitled to receive maintenance from revisionist. Learned counsel for revisionist further contends that the genealogy of daughter who is alleged to be born out of wedlock of revisionist and opposite-party-2 was seriously disputed before court below but no fining has been returned by court below on the aforesaid issue. It is lastly contended that maintenance case filed by opposite-party-2 was dismissed in default vide order dated 21.04.2015. Delay condonation application was allowed on cost of Rs.1500/- but the entire cost has not yet been deposited by opposite-party-2. In view of above, court below could not have proceeded to decide the application under Section 125 Cr.P.C. filed by opposite-party-2 on merits.
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. Court below upon consideration of material on record has recorded a conclusive finding that marriage of parties was solemnized on 28.05.2006. As such, opposite party-2 is legally wedded wife of revisionist. Consequently, revisionist is the husband of opposite party-2. Court below has further found that from the wedlock of revisionist and opposite-party-2, a minor daughter was born. The genealogy of the daughter was disputed by revisionist before court below. However, court below found that revisionist had already instituted a suit for divorce wherein also an application disputing the genealogy of the child was filed. However, the aforesaid suit itself has been dismissed on account of failure on the part of revisionist to comply with order passed by court dealing with divorce-suit. On the aforesaid premise, learned A.G.A. contends that as long as order of dismissal of suit for divorce subsists, revisionist is estoppel from taking aforesaid plea. It is thus urged by learned A.G.A. that since revisionist is husband of opposite-party-2 and father of his minor daughter and as such revisionist is bound to maintain them. However, revisionist has failed to discharge aforesaid obligation. Learned A.G.A. further contends that it is now a proved fact that opposite-party-2 alongwith her minor daughter has been living separately since February, 2007. However, there is nothing on record to show that revisionist has discharged his aforesaid obligation to maintain his wife and his minor daughter. No material has been produced before court below or before this Court in proof of aforesaid. Learned A.G.A. further contends that since revisionist is a healthy man suffering from no infirmity, therefore, court can draw presumption with regard to income of revisionist. Submission urged by learned counsel for revisionist that entire cost as imposed by court below while allowing restoration application filed by opposite party-2 was not deposited within time and therefore, court below could not have proceeded with the merits of the application under Section 125 Cr.P.C. is wholly misconceived inasmuch as, no such objection was raised before court below. Furthermore, from perusal of affidavit filed in support of stay application appended alongwith memo of present criminal revision, no such objection as raised has been pleaded.
12. In the light of above, learned A.G.A. contends that no good ground exits to entertain this revision. Consequently, present revision is liable to be dismissed.
13. Having heard learned counsel for revisionist, learned A.G.A. for State and upon perusal of material brought on record, this Court finds that court below has recorded a definite findings of fact. Court below upon appraisal and appreciation of material on record has concluded that marriage of revisionist was solemnised with opposite-party-2 on 28.05.2006 in accordance with Hindu Rites and Custim. Court below further held that from the wedlock of revisionist and opposite party-2, a daughter was born on 11.02.2007 at Government Women Hospital, Varanasi. However, since then, revisionist has ignored his wife and minor daughter. Consequently, revisionist has failed to maintain them. No material has been filed by revisionist either before court below or before this Court to show that revisionist has been maintaining his wife and minor daughter since then. Consequently revisionist has failed to discharge his legal and moral obligation. Dispute raised by revisionist with regard to genealogy of minor child has been negated by court below on the ground that similar pleading was raised by revisionist in a suit for divorce filed by revisionist on account of failure of revisionist to comply with order of court dealing with divorcee suit. Aforesaid suit has been dismissed. Law is very clear that a judgement by default is as effective as a judgement after hearing the parties. Consequently, revisionist has now stopped from raising aforesaid plea. Opposite-party-2 has been living separately on sufficient grounds as revisionist himself has ignored opposite-party-2. With regard to income, the Court finds that court below has rightly inferred income of revisionist @ Rs. 8000/- per month inasmuch as revisionist is a healthy man suffering from no infirmity. Inference/conclusion drawn by court below regarding income of revisionist cannot be said to be illegal or erroneous as revisionist, who was in possession of best evidence regarding his income has deliberately concealed the same from court below.
14. In view of above, court below has not committed any jurisdictional error in passing impugned order dated 04.03.2021 nor court below has exercised its jurisdiction with material irregularity. Findings recorded by court below are cogent and specific findings which cannot be termed as illegal, perverse or erroneous. Once the findings recorded by court below cannot be dislodged, the conclusion drawn by court below also cannot be altered.
15. For the facts and reasons as noted above, this Court does not find any good ground to interfere in this criminal revision.
Revision lacks merit and is liable to be dismissed.
16. It is accordingly dismissed.
Order Date :- 29.9.2021 YK