Reserved On: 12.09.2019
Delivered On: 27.09.2019
Court No. - 82
Case :- CRIMINAL REVISION No. - 3914 of 2016 Revisionist :- Bhuvenesh Opposite Party :- State Of U.P. And 3nother Counsel for Revisionist :- Bhanu Prakash Verma,Dinesh Kumar Chadha,Ram Datt Dauholia,Sandeep Kumar Srivastava Counsel for Opposite Party :- G.A.,Abhishe Pandey
Hon'ble Narendra Kumar Johari,J.
1. Heard learned counsel for the revisionist and learned A.G.A. appearing for the State and perused the record.
2. The present revision has been filed by husband/revisionist against the order dated 27.10.2016 passed by the Additional and Sessions Judge/ F.T.C.-II, Gautam Budh Nagar in Case No.111 of 2013 (Smt. Richa Paliwal and others Vs. Bhuvenesh) under Section 125 Cr.P.C., P.S.- Sector 58 Noida. Learned Sessions Judge by the above order has allowed the application of respondent nos. 2 to 4 under Section 125 Cr.P.C.
3. The brief fact of the case is that applicant Smt. Richa Paliwal and her son Master Kartike and daughter Km. Kirtika moved an application under Section 125 Cr.P.C. stating that applicant no.1 is married wife of respondent no.1 Bhuvenesh. Applicants Master Kartike and Km. Kirtika are children of applicant no.1 and revisionist/opposite party. Husband/revisionist demanded additional dowry which could not be fulfilled by the parents of opposite party no.1. In furtherance of the above demand of dowry the revisionist/opposite party started torture and bad behaviour with applicant no.1 and did not care for her and her children applicants no. 2 and 3. In continuation of his bad behaviour revisionist/opposite expelled to applicant from his house on 12.10.2009. The opposite party has not taken care for the education of applicant nos. 2 and 3 also. Applicant no.1 anyhow and by taking loan managed for education of her children. Revisionist after desertion has not taken care for the maintenance of his wife or children. He has sufficient means and earns Rs. 2,00,000/- by different other means, whereas applicants have no source of income. The applicant no.1 is unemployed.
4. Revisionist/opposite party appeared in the case before lower court and submitted his objection, wherein he has stated that applicant no.1 is a open minded and post graduate educated lady who herself has left her matrimonial house along with children. Opposite party is ready to keep applicant with him. She earns Rs. 20,000/- by teaching. He has paid some money to applicant no.1. She is ready to maintain herself.
5. Both the applicant no.1 and opposite party have deposed as P.W-1 and DW-1 and submitted some documentary evidences in support of their pleadings. Learned court below considered the case and vide order dated 27.10.2016 ordered to respondent that he will pay Rs.15,000/- per month, for applicant no.1 and Rs.10,000/- per month for each child total Rs. 35,000/- per month as maintenance to applicants, from the date of application, which has been challenged by way of revision.
6. Heard to learned counsels for the revisionist, respondents, and learned A.G.A. and perused the record.
7. An attempts was made for mediation in between the parties vide order dated 07.12.2016 but the result was in negative.
8. It has been submitted by learned counsel for the respondents that learned lower court has based its findings on the facts and evidence of the case and which cannot be challenged by way of revision.
9. Although the revisional court cannot interfere in the finding of fact but where it is shown that impugned order has been passed without judicial application of mind. The order can be challenge under revisional jurisdiction.
10. It has been argued by learned counsel for the revisionist that the evidence available on record shows that respondent no.2 has sufficient source of income whereas it is clear that revisionist has no such income as mentioned in application under Section 125 Cr.P.C. even then the learned Sessions Judge has passed the order which is against evidence on record and is based upon sentiments. The record shows that in paragraph 9, applicant/ respondent no.2 has mentioned that applicant no.2 and 3 took admission in Public School at Noida and she has expended Rs.30,000/- and for the same she had borrowed a lump sum amount from her brother. She further expended Rs.4,000/- per month as tuition fee, Rs.1,600/- for purchase of books and Rs.800/- for their dress. Apart from that she is arranging their pocket money for lunch. In support she has submitted documentary evidences of fee card, photo-state copy of tuition fee receipts, receipts of uniform and book purchased. The fact narrated by applicant no.1 has not been denied by revisionist/opposite party in his objection. In his oral evidence revisionist has mentioned that he has given money for the fee of his children and expenses for purchasing dressed but further he has admitted that he has no receipt for the payment so given. On the other hand, applicant no.1 has filed its receipts as documentary evidence, therefore it is not proved that respondent has ever paid any money in connection with the education of his children.
11. Applicants have mentioned in para 12 of their application that respondent has several means of earning including earning from 225 Bigha of agricultural land and from all the sources his earnings are Rs.2,00,000/- per month. She has submitted the document, extracted Khatauni of Bhumidhari land of revisionist which is at page 95 on the record. The said khatauni indicates that revisionist is the owner of land Khasra No.356 comprising area about 2.4360 hect. In his oral evidence as D.W.1 the revisionist has admitted that he is the owner of 38 Bigha of agricultural land and earns Rs.80,000-90,000/- per annum. The other source of income like income from letting residential house, garage and shop, income from tractor and income from selling milk and income as interest from money given as debts has mentioned in para 12 of application. This fact has not been specifically denied by respondent in his objection. Although he has mentioned in his statement as DW-1 that he has no income from tenancy and he is not the owner of any vehicle but this oral evidence is without denial in pleading/objection.
12. In para 9 of the application applicant no.1 has further mentioned that she is a simple domestic lady. She is totally unemployed and has no source of income. On the other hand respondent mentioned in his objection that he had purchased an agricultural land in the name of and to his wife-applicant no.1, over which there is grove and applicant has earning Rs.1,00,000/- per annum by the said grove. Respondent has further mentioned in his evidence as D.W.-1 that applicant was employed in Vansthaly Public School and she is running a beauty parlour but he has admitted that he has not filed any documentary evidence regarding the above income.
13. Revisionist has admitted in his oral statement that he drinks occasionally. He has mentioned that he is alone in his family and he resides in his ancestral house.
14. Learned counsel for the respondent contended that revisionist has admitted in para 7 of his objection as well as in his oral statement as D.W.1 that he has income from the agricultural land, on the other hand the land which belongs to respondent no.2 is in shape of grove. Learned counsel for the respondent has further stated that the income from grove is not a regular income as of agricultural land. As a matter of fact, respondents are residing at Noida whereas revisionist belongs to Khurja. Respondent is not in a position to look after and care of his land therefore virtually she has no income from that grove land. Therefore, she has rightly denied in her oral evidence that she don’t know about income from grove. Learned counsel for respondent nos. 2 to 4 further contended that the above evidence in record clearly establishes that respondent no.2 has no sufficient income to maintain herself and her children.
15. Be that as it may, learned lower court has discussed the facts and evidence in its order dated 27.10.2016 and rightly concluded that it is the liability of respondent to provide maintenance to applicant/opposite party for which he has sufficient means also.
16. 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.”
17. 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.
18. Revisionist neither produced any such evidence which may able to prove that he has no sufficient tangible means to maintain his deserted wife and children nor he has produced any such oral or documentary evidence which can prove that revisionist is a disabled or he has no earning capacity. Once a person has capacity to earn he cannot escape from his liability to maintain under the provisions. The wording use in Section 125 Cr.P.C. “means” does not mean the tangible property or income only but also the capacity of husband to earn money but it covers the capacity of earning, potentialities and status of living.
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. ”
19. Learned counsel for the revisionist has further submitted that revisionist/opposite party has mentioned in his objection that he remains ill often. He further argued that during the proceedings of the present revision the revisionist has submitted his medical paper along with his affidavit dated 21.05.2017 which shows that respondent is unable to earn any income and unable to pay the allowances to applicant/respondents no. 2 to 4. Learned counsel for the respondents no. 2 to 4/ applicants oppose the arguments on the ground that medical papers submitted by revisionist are neither original nor has been produced as annexure of affidavit, nothing has been mentioned in rejoinder affidavit of revisionist regarding his ill health. Revisionist/opposite party has not produced any documentary evidence regarding his ill health in lower court even he kept mum in his oral evidence also. The argument adduced by learned counsel for the respondent no.2 to 4 seems forceful.
20. Learned counsel for the revisionist has further stated that during the pendency of revision his son-respondent no.3 has become major, he has no physical or mental abnormality or injury to unable him to maintain himself therefore as according to provisions of Section 125 (1)( c) the amount of allowance so fixed for maintenance of respondent no.3 is liable to be reduced.
21. Per contra, it has been argued by learned counsel for respondent no. 2 to 4 that undoubtedly during the pendency of proceedings, respondent no.3 has become major. His present age is nineteen years only, he is a teenager and still he is a student, he is neither able to earn nor he is doing any job. On the other hand by passage of time cost of living has hiked. Respondent nos 3 & 4 require more money for their education and maintenance. Therefore considering the higher education of respondent no.3 and 4 and price hike in present scenario, the allowance awarded in the year 2016 is liable to be enhanced.
22. It is subsequent change in circumstances that during pendency of revision respondent no.3 has attained the age of majority. Here at this juncture it will also be proper to discuss that as in his argument counsel for the revisionist has submitted that health of revisionist by passing of time has deteriorated. The fact submitted by learned counsel for the revisionist may be treated as subsequent change in circumstances.
23. Revisional jurisdiction can be invoked regarding correctness, legality or proprietary of any finding or order passed by a Sub-ordinate court on a given fact and evidence. The question raised by learned counsel for the revisionist regarding reduction of maintenance allowance and by respondent for enhancement of allowances as it has been put in argument as subsequent change in law and circumstances, the power to consider the aforesaid subsequent changes has been given to Magistrate under Section 127(1) of Cr.P.C. The provision is reproduced as under:-
Section 127(1) Alteration in allowance:-
(1) On proof of a change in the circumstances of any person, receiving, under section 125 a monthly allowance for the maintenance or interim maintenance, or ordered under the same section to pay a monthly allowance for the maintenance, or interim maintenance, to his wife, child, father or mother, as case may be, the Magistrate may make such alteration, as he thinks fit, in the allowance for the maintenance or the interim maintenance, as the case may be.
(2)……….
(3)……….
(4)……….”
24. Attaining the age of majority by respondent no.3 during the pendency of revision, deterioration of health of revisionist, during the course of time, requirement of more money for maintenance during passage of time by escalation of price, all the above facts as argued by learned counsels of parties comes under subsequent circumstances after judgment of court below. Accordingly revisionist and respondents may approach to Magistrate concerned for alteration in maintenance allowance and for redressal of their grievances.
25. So far as impugned order/judgment dated 27.10.2016 regarding quantum of maintenance allowance is concerned, it is well discussed and based upon proper appreciation of fact and evidence.
26. Taking the facts and circumstances into consideration, no illegality, infirmity or irregularity is found in impugned order/judgment. The revision has no force. Hence is liable to be dismissed.
27. Revision dismissed. Costs easy.
Order Date :- 27.09.2019 C. MANI/Krishna