Court No. - 53
Case :- CRIMINAL REVISION No. - 2656 of 2010
Revisionist :- Naipal Singh
Opposite Party :- State Of U.P. & Another Counsel for Revisionist :- Gaurav Kakkar Counsel for Opposite Party :- Govt. Advocate
Hon'ble Pratyush Kumar,J.
Heard Sri Ankur Gupta, Advocate, holding brief of Sri Gaurav Kakkar, learned counsel appearing for the husband-revisionist and learned A.G.A.
By the instant petition, husband-revisionist questions the correctness of order dated 10th June, 2010 passed by Additional Chief Judicial Magistrate, Anoop Shahr, in Misc.Case No.37 of 2003 (Amarvati vs. Nepal Singh), under section 125 Cr.P.C., Police Station Anoop Shahr, District Bulandshahr, whereby the present opposite party no.2 has been granted maintenance at the rate of Rs.1000/-per month and her daughter Rs.400/- per month till she attains majority. Maintenance has been awarded from the date of the application.
The grounds taken in the revision are that evidence has not been properly appreciated. Opposite party no.2 has left the matrimonial house of her own will and has deserted the revisionist and for without any reasonable cause, she has refused to join the company of the revisionist. Further monthly income of the revisionist could not be proved by opposite party no.2 and only on the basis of presumption, revisionist has been directed to pay the maintenance amount.
Sri Ankur Gupta, learned counsel appearing for the husband-revisionist has referred the following cases in support of the grounds mentioned hereinabove:-
1. Deb Narayan Halder vs. (Smt.) Anushree Halder, 2003(47) ACC 897- In this case the Hon'ble Apex Court has held that when the wife failed to prove cruelty or any reason for leaving the company of the husband, she is not entitled to get maintenance.
2. Abdul Hai vs. Smt.Najma Khatoon and another, 1999(39) ACC 59- In this case, this Court has held when wife refused to live with the husband, who made offer to keep her before granting maintenance, Court has to satisfy about the bonafide of such refused.
3. Samaydin vs. State of U.P. and another, 2001(42) ACC 487- This case has been referred as an authority where the Court has not recorded reasons for granting maintenance from the date of application, the order causes surprise to husband.
So far as first ground is concerned, on behalf of the revisionist, this fact was mentioned in the written statement.
On behalf of the applicant, three witnesses were examined.
Amarwati, P.W.-1 examined herself, according to her after marriage she was asked to bring more dowry. Her father gave some money to the revisionist, in spite of that she was beaten and when she was pregnant for eight months, after beating her she was ousted from the house. During cross examination, this statement remained un-controverted.
On behalf of the revisionist, he was examined as D.W.-1. He has reiterated the facts stated in the written statement and further stated that he had gone many times to bring Amarwati but after great effort she came to Shahadaya and after 2-3 days she started to threat to commit suicide. He has also referred the case instituted for restitution of conjugal rights. During cross examination, he withstood with the statement made by him. Learned magistrate while appreciating the contradictory evidence, noticed above, has preferred to rely on the statement of opposite party no.2 and he has recorded a categorical finding that it was the revisionist who had deserted the opposite party no.2 and her daughter due to greed of dowry and without additional dowry he was not willing to keep.
The scope of revisional court to appreciate the evidence only to the extends to see whether the finding recorded by the trial court is based on admissible evidence or not. In case, such finding is based on no evidence or evidence irrelevant or inadmissible only then revisional court has jurisdiction to set aside such perverse finding.
When examined in the light of above, it transpires that finding recorded by the trial magistrate cannot be said to be based on no evidence. The learned magistrate preferred to rely on the statement of the opposite party no.2, it was his prerogative but his finding cannot be said to be based on no evidence or evidence irrelevant and inadmissible, thus, I do not think any fault can be found by this Court with this finding.
Further from the perusal of the impugned judgement, it transpires that during cross examination, revisionist had made clear that he is willing to keep opposite party no.2 provided she behaves properly, thus, it cannot be said his offer was unconditional, therefore, first ground was without substance.
The second ground that income of revisionist has not been proved by opposite party no.2 in spite of that application for maintenance has been allowed, need not detain the court much longer because it is an admitted fact that revisionist is a labour. A labour can easily earn wages up to Rs.300/- per day, therefore, I do not think that finding recorded by the magistrate regarding his income can be said to be defective. It is true that he has disbelieved the evidence of opposite party no.2 regarding factory, shop and property allegedly owned by the revisionist but he had considered his physical ability to earn and directed him to discharge his matrimonial obligation.
So far as first two cases referred by the learned counsel for the revisionist are concerned, due to distinction of facts, ratio laid down therein is not applicable here. The third case referred by the learned counsel for the revisionist is regarding the date from which maintenance order was made applicable. The learned magistrate in page-10 has discussed this question. He has recorded a reason that application was presented on 3.1.2002 and for more than eight years, revisionist had delayed the disposal of the application, therefore, he has granted maintenance from the date of the application. For this reason, ratio laid down in the third case is also not applicable and second ground raised in the revision is also without substance.
Perusal of the impugned judgement reveals that relationship between the parties was admitted to the revisionist. From perusal of the record, it also transpires that revisionist had failed to show that opposite party no.2 was earning any amount to maintain herself rather she has stated that she was unable to maintain herself. Reason for refusal to live with the revisionist has been given by opposite party no.2 demand of dowry and subsequent torture therefor and this reason has been found satisfactory by the trial magistrate. I find no reason to differ with him.
Revision is without substance and is, accordingly, dismissed.
Interim order dated 19th July, 2010 is hereby vacated with the direction that the learned magistrate/District Family Court, if approached by the revisionist, may recover the amount in easy instalment.
Order Date :- 18.4.2017 SKD