Court No. - 49
Case :- CRIMINAL REVISION No. - 959 of 2018 Revisionist :- Neeraj Kumar Pandey Opposite Party :- State Of U.P. And Another Counsel for Revisionist :- Jagjeet Singh 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.
Office is directed to correct the name of the learned counsel for the applicant as Sri Jitendra Singh in place of Jagdish Singh.
The present revision has been filed against the order dated 25.1.2018 passed by the learned Principal Judge Family Court, Hamirpur in Matrimonial Case No. 365 of 2013 (Smt. Devwadi @ Gudiya Vs. Neeraj Kumar Pandey), under Section 125 Cr.P.C., whereby learned Court below has allowed the application filed by the opposite party no.2 under Sections 125 Cr.P.C. and provided monthly maintenance allowance @ of Rs.3,000/- per month to the opposite party no.2 from the date of filing of that application being 11.12.2012 and @ of Rs.4000/- per month to opposite party no.2 from the date of the impugned order being 25.1.2018.
Learned counsel for the applicant submits that the award of maintenance allowance @ of Rs.3,000/-and Rs. 4,000- per month as noted above is excessive especially keeping in mind that it has been awarded from the date of the application.
Having perused the order of the learned Court below and the material annexed with the present revision, it appears that the applicant is engaged in dairy business. The opposite party no.2 in her statement given to the learned Court below has stated that the applicant is running a dairy business and has agricultural holding of about 10 bigha and had further stated that the applicant derived monthly income about 30,000/- from the dairy business and Rs. 2,00,000/- per annum by way of agricultural income. She further stated that the applicant has pakka three story house in Bindaki and another house in the village.
On the other hand, the applicant had during his cross-examination stated that he had only agricultural holding of about 2 bigha and that he had no other income. Though, the applicant denied the fact that he was engaged a dairy business, during his cross-examination it appears he admitted that he was engaged in trading in milk. He however insisted that he did not have a dairy. As to his monthly income, the applicant contended that he was earning Rs. 6000/- per month. Also it is not disputed that the applicant is an able bodied person.
Proceeding under Section 125 Cr.P.C. are to provide for means of sustenance to preserve human life and dignity and prevent vagrancy. Thus, a certain minimum amount as is necessary for the aforesaid purposes have to be awarded. Such amount has to be provided for by the person in the situation of the present applicant who admittedly is an able bodied person and is the husband of the opposite party no.2.
Considered from the above perspective, it appears that the applicant was not forthcoming in his evidence before the leaned Court below as to his correct income and financial status. It was only during his cross- examination that he admitted to trading in milk. Thus, clearly the applicant has income from trading activity in milk besides his income from agriculture. Even in this regard, it is seen that the applicant was not forthcoming as to the correct size of the agricultural holding available to him. While initially he asserted that he had agricultural holding of only 2 bigha, upon cross-examination he admitted to have further inherited the agricultural holding of his father.
Besides, it is also admitted to the applicant that the only other family member in his family is the applicant's mother who also holds some agricultural holdings of equal size as the applicant.
Considering the above facts, the award of monthly maintenance allowance @ of Rs. 3000/- per month to opposite party no.2 from the date of her application being 11.12.2012 to the date of the order dated 25.1.2018 is neither excessive nor arbitrary. Similarly, the award of monthly maintenance allowance to opposite party no.2 @ of Rs. 4,000/- per month from the date of the order is also neither excessive nor arbitrary.
In fact such amounts are wholly just and proper and necessary to preserve human life and dignity of opposite party no.2. Consequently, the challenge raised to the quantification of monthly maintenance allowance must fail. '
It has last been submitted that the total arrears of maintenance allowance as on date are huge and the applicant would not be able to comply with the impugned order unless he is allowed some time in installment to do so.
The said prayer made by learned counsel for the applicant appears to be genuine.
Insofar as the order has been made for payment of maintenance amount from the date of application, I do not find any error in the same in view of the fact that the application had been filed by the opposite party 11.12.2012, which ought to have been decided within a period of 60 days from that date. However, the same has been decided more than 61 months from the date when such application was filed.
For a very long time, the opposite party did not receive any amount towards maintenance as had been claimed by her and which under law, she was entitled to. Also, even upon amount as claimed becoming payable she did not become entitled to any interest for the inordinate delay.
The cost of such delay, has to be borne by the applicant herein and not the opposite parties/claimant especially, when the law created an expectation for the application to be decided within sixty days of it being filed.
Also, there does not appear to exist any material whereby the delay caused in the proceedings may be attributed to the opposite party.
The amount of monthly maintenance allowance being minimal, it is the arrears of that allowance, when paid would be such as may be able to defray the costs of dignified existence at the sufferance of the applicant. Such expenses may be assumed to be such as would have been necessarily borne by the applicant, had the opposite party resided with him all this while.
The applicant cannot deny the care to the opposite party-his wife, for the period she has not resided with him for reason of marital discord, except if the bar of section 125 Cr. P.C. operates. No such bar operates in this case. Consequentially, though the opposite party no.2 may have stayed physically apart from the applicant, the applicant has to still bear her expences necessary to preserve her dignified human existence, keeping in mind the financial and social status of the parties.
Also, the applicant cannot be heard to say, that he would bear such expenses only from the date of the order. The applicant-an able bodied person is responsible to take care of all the financial needs of his wife from her marriage and not the date from which the court passes an order in that regard. Only upto the date, an application is made, would a defence be available to the applicant that such needs have been taken care of. Also, the learned court below has not found the opposite party to be a person with any earning to provide for her own needs.
Therefore, in my view the award of the maintenance from the date of application does not suffer from any infirmity.
Accordingly, the instant application is disposed of with the following directions:
(i) Subject to the applicant furnishing adequate security to the tune of Rs. 2,00,000/-, in the shape of other than cash or bank guarantee, to the satisfaction of the court below, within one month from the first communication about decision in this revision or of this order, to the applicant, either by the court below or otherwise, further coercive measures adopted against the applicant shall remain stayed, subject to other conditions provided herein.
(ii) 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.
(iii) The applicant shall further pay Rs. 12,000/- towards maintenance allowance for the period January, 2018 to March, 2018 on or before 30.4.2018.
(iv) Subject to the applicant having complied with the above, the amount of Rs. 1,83,000 /- (approximately) arrears of maintenance allowance for the period from the date of application till the date of order shall be deposited in eight quarterly instalments, such instalments being payable on or before 30.04.2018, 30.07.2018, 31.10.2018, 31.1.2019, 30.4.2019, 31.07.2019, 31.10.2019 and 31.1.2020 respectively. The first seven instalments would be of Rs. 25,000/- each while the 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 first from the security, if any, offered by the applicant in compliance of this order.
Order Date :- 28.3.2018 Mini