Court No. - 83
Case :- CRIMINAL REVISION No. - 2156 of 2021 Revisionist :- Varun Bhatiya Opposite Party :- State of U.P. and Another Counsel for Revisionist :- Satya Prakash Mishra,Anita Singh,Mustaqeem Ahmad Counsel for Opposite Party :- G.A.
Hon'ble Rajeev Misra,J.
1. Heard Mr. Satya Prakash Mishra, learned counsel for revisionist and learned AGA for State.
2. Perused the record.
3. Challenge in this criminal revision is to the order dated 31.08.2021 passed by Additional Principal Judge, Family Court No.1, Kanpur Nagar, whereby Case No. 1045 of 2017 (Smt. Shanvi alias Indu vs. Varun Bhatia) under Section 125 Cr.P.C., Police Station Najirabad, District Kanpur Nagar has been allowed. Consequently, revisionist has been directed to pay maintenance to opposite party-2 at the rate of Rs. 15,000/- per month from the date of application.
4. Record shows that opposite party-2, Smt. Shanvi alias Indoo filed an application dated 31.10.2017 claiming maintenance from revisionist at the rate of Rs. 50,000/- per month. Same came to be registered as Case No. 1045 of 2017 (Smt. Shanvi alias Indu vs. Varun Bhatia) under Section 125 Cr.P.C., Police Station Najirabad, District Kanpur Nagar. According to allegations made in aforesaid application, it is alleged that marriage of opposite party-2 was solemnized with revisionist on 17.01.2013. In the marriage of opposite party-2 with revisionist, parents of opposite party-2 incurred an expense of Rs. 20,00,000/-. However, revisionist and other in-laws of opposite party-2 were not satisfied with goods and dowry given by parents of opposite party-2 at the time of her marriage. An additional demand of an I-20 car was made towards dowry. From the wedlock of revisionist and opposite party-2, a daughter Arana Bhatia was born. However on account of non- fulfillment of additional demand of dowry, physical and mental cruelty was committed upon opposite party-2. It was also alleged father-in-law of opposite party-2 repeatedly dislodged her modesty. Revisionist has business of spare parts of heavy auto-mobiles Upon complaint having been made by revisionist at concerned police station, matter was compromised. Revisionist and other in-laws submitted their written apology. Ultimately on 25.07.2017. Opposite party-2 was ousted from her marital home. The custody of minor was retained by revisionist. Opposite party-2 further alleged that she is residing separately with her parents since then, however, revisionist has completely ignored her. On the aforesaid premise, opposite party-2 claimed maintenance from revisionist at the rate of Rs.50,000/-.
5. Claim raised by opposite party-2 was opposed by revisionist. He accordingly filed his written statement/objections dated 30.05.2019 denying the allegations made in the application under Section 125 Cr.P.C. According to revisionist, opposite party-2 is residing separately on insufficient grounds. Revisionist further denied allegations of physical and mental cruelty committed upon opposite party-2 by him and other in- laws. Allegations made in the complaint regarding dislodging of modesty of opposite party-2 by father of revisionist, were denied straightaway.
6. Revisionist, however, submitted before court below that he is a motor mechanic from which she is able to earn Rs. 10,000- to 12,000/- per month with great difficulty. Opposite party-2 is doing cosmetic business from which he is having an income of Rs. 30,000/- per month. On the aforesaid premise it was alleged that since opposite party-2 is living separately on insufficient grounds and further able to maintain herself, she is not entitled to claim any maintenance from revisionist.
7. After exchange of pleadings, parties went to Trial Court below in order to decide the dispute between the parties framed following four points of determination:
(i) Whether opposite party-2 is living separately from revisionist on sufficient ground?
(ii) Whether opposite party-2 is unable to maintain herself?
(iii) Whether revisionist in spite of having sufficient means has refused to maintain opposite party-2.?
(iv) To what relief is opposite party-2 entitled for?
8. In support of her case, opposite party-2 adduced herself as P.W.1 and her father Narendra Kumar Bhatiya as P.W.2. Opposite party-2 also filed documentary evidence which is categorically mentioned in second paragraph at internal page-5 of certified copy of impugned order. Similarly revisionist in order to prove her defence adduced himself as DW-1 and his father Deepak Bhatiya as Opposite party D.W. 2. Revisionist however, did not file any documentary evidence in support of his defence.
9. Court below upon consideration of pleadings of parties, evidence on record and submissions urged proceeded to decide the points of determination so framed.
10. With regard to the first point of determination, court below held a very lengthy and detailed discussion and on basis thereof came to the conclusion that opposite party-2 is living separately on sufficient grounds from revisionist. With regard to issue no.2, court below found that opposite party-2 is residing with her parents leaving no source of income and therefore unable to maintain herself. With regard to issue no.3, court below held that revisionist has not adduced any documentary evidence with regard to his income even when he is an income tax assessee, pays GST and is also possessing a four wheeler car. Thus on the basis of above, court below has drawn an adverse inference against revisionist and held that inspite of having sufficient means, revisionist has ignored opposite party-2. Smt. Shanvi alias Indoo is legally wedded wife and consequently failed to maintain her. On the basis of findings recorded on points of determination i.e. no.1, 2 and 3, court below ultimately opined that opposite party-2 is entitled to maintenance from revisionist at the rate of Rs. 15,000/- per month.
11. Learned counsel for revisionist contends that order impugned in present criminal revision is manifestly illegal and without jurisdiction. Same is unsustainable in law and fact. Court below has erred in awarding maintenance to opposite party-2 from the date of application and not from the date of order. He further submits that dispute between parties is a matrimonial dispute and on account of criminal proceedings initiated by opposite party-2 against revisionist and other in- laws, Criminal Misc. Application No. 3864 of 2020 was filed before this Court wherein order dated 28.01.2020 was passed, whereby parties were referred to mediation. It is further submitted that revisionist tried to settle the dispute but opposite party-2 herself is not willing to reside with revisionist. As such order impugned in present criminal revision has been passed contrary to the material on record. It is thus urged that impugned order be set aside and revision be allowed.
12. Per contra learned AGA has opposed this application. Learned AGA contends that impugned order passed by court below is preferably just and legal. Learned AGA submits that it is a proved fact that marriage of revisionist was solemnized with opposite party-2. Consequently opposite party-2 is legally wedded wife of revisionist. As such revisionist is legally and morally bound to maintain opposite party-2 . It is then contended that from the material on record it is established that opposite party-2 is living separately from revisionist since 25.07.2017. However, nothing has been filed by revisionist either before court below or before this court to establish that he has been maintaining opposite party-2 since then. As such revisionist has ignored his legally wedded wife and consequently, failed to maintain her. It is further submitted that from the material brought on record, it is clear that the grounds raised in present criminal revision in opposition to order impugned are non-existent ground. It has come on record that revision himself has instituted a suit under Section 13 of Hindu Marriage Act for divorce. In view of above, it cannot be said that revisionist tried to settle the issue and desired to bring opposite party-2j to her matrimonial home. It is then contended that observations made by court below that revisionist is an income tax assessee, paying GST and also possess a four wheeler car, has not been denied by revisionist.
13. However, in spite of above, revisionist deliberately did not file any documentary evidence regarding his income before court below. As such court below has rightly drawn adverse inference regarding income of revisionist and awarded maintenance to opposite party-2, which commensurates with the status of parties. Reliance placed upon order dated 28.01.2020 passed by this Court in challenge to the impugned order is misconceived as order dated 28.01.2020 was not filed by revision before court below. He, therefore, contends that present criminal revision is liable to be dismissed.
14. Having heard learned counsel for revisionist, learned AGA for State and upon perusal of material on record, the Court finds that marriage of revisionist was solemnized with opposite party- 2 on 17.01.2013. As such opposite party-2 is legally wedded wife of revisionist. Consequently, revisionist is legally and morally bound to maintain her. This Court further finds that opposite party-2 has been ousted from her marital home from 25.07.2017. However, there is nothing on record to show that revisionist has been maintaining his legally wedded wife i.e. opposite party-2 since then. As such revisionist has failed to discharge his obligation towards opposite party-2. Court below upon detailed consideration of pleadings, evidence and material on record has arrived at the conclusion that opposite party-2 is living separately on account of physical and mental cruelty committed upon her.
15. Revisionist has instituted a suit under Section 13 of Hindu Marriage Act for divorce, which clearly goes to establish that revisionist does not wish to keep/maintain opposite party-2. With regard to income of revisionist, the Court finds that revisionist despite the fact, that he is an income tax assessee, GST payee and also in possession of a four wheeler car did not file any documentary evidence regarding his income. Therefore, adverse inference drawn by court below regarding income of revisionist cannot be said to be illegal. It is well established that courts while exercising revisional jurisdiction have very limited scope. Order impugned in revision can be interfered. It is provided that court below has committed a jurisdictional error or has exercised its jurisdiction with material irregularity.
16. In the case in hand, this Court finds that court below has not committed any jurisdictional error, nor has exercised its jurisdiction with material irregularity. To the contrary, court below has exercised its jurisdiction diligently and has awarded maintenance to opposite party 2 after due consideration of material on record. As such it cannot be said that maintenance has been awarded by court below in favour of opposite party-2 in a casual and cavalier manner. Findings recorded by court below are findings of fact, which are definite and cogent.
17. Learned counsel for revisionist could not establish that findings recorded by court below are either illegal, perverse or erroneous. It is well settled that once findings recorded by court below could not be dislodged the conclusion cannot be altered.
18. For the facts and reasons noted above, present criminal revision fails and is liable to be dismissed.
19. It is accordingly, dismissed.
Order Date :- 23.9.2021i Ashish Pd.