Court No. - 49
Case :- CRIMINAL REVISION No. - 2933 of 2017 Revisionist :- Ritesh Kumar Opposite Party :- State Of U.P. & 2 Others Counsel for Revisionist :- R.K.Paramhans Singh Counsel for Opposite Party :- G.A.,Sanjeev Kumar Khare
Hon'ble Saumitra Dayal Singh,J.
Heard learned counsel for the applicant, learned counsel for the opposite party no. 2 and learned AGA for the State.
The present criminal revision has been filed against the order dated 17.03.2016 passed by the Principal Judge, Family Court, Jaunpur in Case No. 121 of 2013 (Archana Vs. Ritesh Kumar), under Section 125 Cr.P.C., Police Station- Jalalpur, District- Jaunpur.
Learned counsel for the applicant submits that the applicant is 100% blind and on account of such 100% disability, he does not have any earning capacity. Consequently, it is submitted that the award of maintenance allowance made against the applicant is perverse and therefore liable to be set aside.
Upon such arguments being advanced, by last order dated 20.04.2018, this Court had directed the C.M.O., Allahabad to medically examine the applicant and submit his report to the Court as to the correctness of the claim made by the applicant being blind and the extent to which the applicant suffers from visual impairment.
Pursuant to the last order, the report of the C.M.O., Allahabad has been filed by the learned AGA. It is retained on record.
Perusal of the report reveals that the medical opinion is categorical that the applicant is 100% visually disabled (totally blind). The said opinion has been expressed upon test performed which results whereof are also contained in the report.
In view of the above, the contention made by learned counsel for the applicant that the applicant has no earning capacity cannot be doubted. No other conclusion is possible in law, in light of the facts and evidence existing on record.
Learned counsel for the opposite party no. 2 states that though the applicant has been found to be blind still he is in receipt of rental income of about Rs. 10,000/- per month. As on date, there is no material or evidence on record to accept such a contention.
Leaving it open to the opposite party no. 2 to file an application under Section 127 Cr.P.C. or a fresh application under Section 125 Cr.P.C., if any evidence becomes available to the opposite party no. 2 that the applicant is in receipt of any rental income or such fixed income from which maintenance allowance may be provided for. The present criminal revision is allowed. The order dated 17.03.2016 is set aside.
Order Date :- 24.4.2018 A. Singh