Allahabad High Court
Navita Sharma vs State Of U.P. And Anr. on 11 March, 2004
Equivalent citations: II(2004)DMC310
Author: K.N. Ojha
Bench: K.N. Ojha
JUDGMENT K.N. Ojha, J.
1. Instant revision has been preferred against order dated 23.12.1997 passed by the 1st Additional Sessions Judge, Muzaffar Nagar, in Criminal Revision No. 150 of 1997, Brij Bahadur Sharma v. Navita Sarma, by which the order passed by 2nd Additional Chief Judicial Magistrate, Muzaffar Nagar, in Case No. 7/11 of 1997 in favour of Navita Sharma under Section 125 Cr.P.C was set aside on the ground that the Court of Muzaffar Nagar has no territorial jurisdiction to decide the case because Navita Sharma was living with her father-in-law, Shiv Sharma, in District Ghaziabad. The Court below held that it is the Court of Ghaziabad, which will decide the case of maintenance of Navita Sharma against her husband.
2. After the revision was filed by Navita Sharma notice was served on Brij Bahadur Sharma, opposite party No. 2, but none appeared for him at the time of argument, hence the arguments of the learned Counsel for the revisionist and the learned A.G.A. were heard and judgment is being delivered on merit.
3. The fact of the case is the Smt. Navita Sharma filed Criminal Case No. 7/ 11 of 1997, Navita Sharma v. Brij Bahadur Sharma, for maintenance at the rate of Rs. 2,000/- per month against her husband. Brij Bahadur Sharma filed his written statement and admitted that his marriage with Navita Sharma was solemnised on 15.9.1989 at the residence of her parents at Khatauli in District Muzaffar Nagar, but it was alleged that she came to live with him. She refused to maintain marital relations. Since she has passed M.A. B.Ed., LL.B. hence on one pretext or the other she was always irritated and ultimately she herself left his house and started to live with his father. It was also alleged that Brij Bahadur Sharma is a clerk in Civil Court, Ghaziabad.
4. Smt. Navita Sharma examined herself and Shiv Sharma, her father-in-law. After appreciating the evidence of the parties the learned Additional C.J.M. held that Smt. Navita Sharma had no source of income. There was no evidence to show that she runs a coaching institute or earns Rs. 6,000/- per month and it was held that being compelled to leave the house of her, husband, she is living at the resident of her father, who is no more alive and lives with her mother and has no source of income. The contention of Brij Bahadur Sharma that Smt. Navita Sharma herself left the house or was cruel with him was not believed. With the result the maintenance allowance at the rate of Rs. 500/- per month was awarded from the date when the application under Section 125 Cr.P.C. was filed.
5. Against the order of the learned Additional Chief Judicial Magistrate, Muzaffar Nagar, dated 21.4.1997 opposite party No. 2 Brij Bahadur Sharma preferred Revision No. 150 of 1997, in which it was held by the learned Revisional Court that Smt. Navita Sharma was neither living at Khatauli at the time of filing of the application nor she had last resided at Khatauli, therefore, the Court of Muzaffar Nagar had no jurisdiction to decide the case. It was also held that P.W. 1 Shiv Sharma had stated that Smt. Navita Sharma had passed LL.B. in 1990-91 while living with him, therefore, her living at Khatauli was not believed. It was also held that the Court of Muzaffar Nagar lacked jurisdiction, consequently the order of maintenance passed under Section 125, Cr.P.C. in favour of Smt. Navita Sharma was set aside.
6. Aggrieved therefrom instant revision has been filed.
7. It is not denied that Navita Sharma is legally wedded wife of Brij Bahadur Sharma. It is also not denied that Navita Sharma is not living with Brij Bahadur Sharma. When finding was made by the learned Additional Chief Judicial Magistrate after appreciating the facts and circumstances of the case and it was held that Navita Sharma had no source of income and the fact that she was running a coaching institute or earning Rs. 6,000/- per month could not be proved, these findings were not set aside after considering the evidence. The only ground on the basis of which the order maintenance passed by the learned Additional Chief Judicial Magistrate was set aside was that the Court of Muzaffar Nagar lacked territorial jurisdiction.
8. Now question arises as to whether there was really sufficient evidence from which inference could be drawn that it was the Court of Ghaziabad, which was competent to decide the case under Section 125, Cr.P.C. or the petition was rightly filed by Navita Sharma at Muzaffar Nagar.
9. When Smt. Navita Sharing filed suit for maintenance tinder Section 125, Cr. P.C. she examined herself and her father-in-law Shiv Sharma, who lives separate from Brij Bahadur Sharma, her husband. Brij Bahadur Sharma examined himself only. Brij Bahadur Sharma stated that when Navita Sharma left his house, she started to live with Shiv Sharma, which is within the territory of Ghaziabad, but this fact was denied by Navita Sharma. Shiv Sharma also stated that for the purposes of examination she went there, but she lives at the residence of her mother. There is no evidence on the record to show that Navita Sharma runs a coaching institute or earns Rs. 6,000/- per month or has any house or landed property at Ghaziabad or is doing any business or service at Ghaziabad. When a lady is not living with her husband, has no source of income to live at Ghaziabad, she would like to live with her parents and in this case when father is not alive, she is living with her mother. No paper has been filed by O.P. No. 2 to show that Navita Sharma lives with Shiv Sharma. It is fact that when the case was filed in the Court of Muzaffar Nagar, the burden is on Navita Sharma to prove that she lives within the territorial jurisdiction of the Court of Muzaffar Nagar. Her statement that after leaving the house of her husband, she started to live with her mother is supported by Shiv Sharma, her father-in-law. If a person goes to appear in an examination or lives for a short period for appearing in an examination at a particular place, it does not mean that he resides there. It is a short stay for particular purpose. In such circumstances the learned Additional Sessions Judge was right in holding that Navita Sharma lives with her mother at Khatauli in District Muzaffar Nagar, therefore, the finding that the Court of Muzaffar Nagar was competent to decide the case was just and he passed order for maintenance at the rate of Rs. 500/- per month in favour of Navita Sharma.
10. In the opinion of this Court the learned Revisional Court below erred in holding that the Court of Ghaziabad has got territorial jurisdiction to decide the case. This finding made by the Revisional Court below is not based on any evidence but is contrary to the evidence on the record.
11. It is not denied that Brij Bahadur Sharma is employed in Civil Court, Ghaziabad, and earns Rs. 4,000/- or 5,000/- per month. If maintenance allowance at the rate of Rs. 500/- per month has been granted by the learned Additional Chief Judicial Magistrate in favour of Navita Sharma, the amount can never be said to be excessive.
12. Therefore, the findings made by the learned Additional Chief Judicial Magistrate was not required to be interfered with by the Revisional Court below.
13. Since no source of income has been shown to Smt. Navita Sharma, while Brij Bahadur Sharma, O.P. No. 2, is Civil Court employee and regularly earns Rs. 5,000/- per month, Smt. Navita Sharma resides at the residence of her mother, who is a widow and has no sound financial position to maintain her daughter in such circumstances if the learned Additional Chief Judicial Magistrate has awarded maintenance from the date of the application under Section 125, Cr.P.C. it is not contrary to the statutory provision of Section 125(2), Cr.P.C.
14. This revision is allowed. The order dated 23.12.1997 passed by the learned 1st Additional Sessions Judge, Muzaffar Nagar, is set aside and the order dated 21.4.1997 passed by the learned 2nd Additional Chief Judicial Magistrate, Muzaffar Nagar, granting maintenance at the rate of Rs. 500/- per month in favour of Smt. Navita Sharma from the date of filing of the application under Section 125, Cr.P.C. is affirmed.
15. The record be sent back to the Court of learned 2nd Additional Chief Judicial Magistrate, Muzaffar Nagar, forthwith for proceeding with the case in accordance with law.