Allahabad High Court
Taufeeq vs State Of U.P. And Anr. on 16 March, 2018
Author: Aniruddha Singh
Bench: Aniruddha Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Reserved on 7.2.2018 Delivered on 16.3.2018 Case :- CRIMINAL REVISION No. - 342 of 2018 Revisionist :- Taufeeq Opposite Party :- State Of U.P. And Anr. Counsel for Revisionist :- Bharat Singh Counsel for Opposite Party :- G.A. Hon'ble Aniruddha Singh,J.
1. Heard learned counsel for the revisionist and learned AGA for the State, and perused the record.
2. By the instant revision, revisionist questions the correctness of judgment dated 28.10.2017 passed by Additional Principal Judge (Family Court)/ Additional District & Sessions Judge, FTC No. 2, Budaun in Criminal Misc. Case No. 181 of 2016 ( Smt. Sharmina vs. Taufeeq) under Section 125 Cr.P.C. whereby revisionist has been directed to pay Rs.2600/- per month as maintenance to his wife/opposite party no. 2 from the date of judgment i.e. 28.10.2017.
3. Learned counsel for the revisionist submitted that impugned order is bad in law, against the evidence on record, illegal and arbitrary as opposite party No.2 is living in adultery with a man called 'Dealer' and he has submitted a photograph before the lower Court in proof of this fact. Opposite party no. 2 has left company of revisionist due to non-fulfillment of physical and other demands. She has also sent notice of 'Talak' to the revisionist and she is not ready to live with him. The lower Court has wrongly given finding that revisionist is a healthy person and he may easily earn Rs.7000-8000/- per month.
4. Learned AGA submitted that grounds raised in the revision are without substance. Court below has recorded specific finding that opposite party no.2 is living separately due to misbehavior of revisionist as she is issueless, and revisionist is a healthy person who can earn Rs.7000-8000/- per month and marriage between both the parties is admitted.
5. Question is whether opposite party no. 2 has succeeded to prove her case. Prove is defined under Section 3 of Evidence Act which is quoted here as under:-
"Proved".-A fact is said to be proved when, after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists."
6. Question is whether a prudent man can believe that facts shown in the application of opposite party no. 2 do exist.
7. Proceeding under Section 125 Cr.P.C. is summary proceeding. Order does not determine rights of parties as it was held by the Apex Court in Dwarika Prasad Satpathy vs. Bidyut Prava Dixit and Another, AIR 1999 SC 3348, wherein following has been observed:-
"It is to be remembered that the order passed in an application under Section 125 Cr.P.C. does not finally determine the rights and obligations of the parties and the said section is enacted with a view to provide summary remedy for providing maintenance to a wife, children and parents. For the purpose of getting his rights determined, the appellant has also filed a Civil Suit, which is pending before the trial court. In such a situation, this Court in S. Sethurathinam Pillai v. Barbara alias Dolly Sethurthinam, {1971 (3) SCC 923} observed that maintenance under Section 488 Cr.P.C., 1898 (Similar to Section 125 Cr.P.C.) cannot be denied where there was some evidence on which conclusion for grant of maintenance could be reached. It was held that order passed under Section 488 is a summary order which does not finally determine the rights and obligations of the parties; the decision of the criminal court that there was a valid marriage between the parties will not operate as decisive in any civil proceeding between the parties."
8. With reference to the ground that income of revisionist could not be proved, from perusal of impugned judgment it transpires that opposite party no. 2 has stated that after marriage revisionist has demanded dowry, tortured her, threatened to solemnize second marriage because she is issueless. She is illiterate lady. She has also stated that revisionist has 30 Bigha land, he is working as wood contractor and running dairy business. In these circumstances, in my opinion, maintenance awarded by the Court below is not arbitrary and not on higher side.
9. Under Section 125 Cr.P.C."a person having sufficient means" means a person who has capacity to earn. When actual income could not be proved by the wife, the average income of husband is to be assessed; and following this principle, Court below has rightly held that income of revisionist is Rs.7000-8000/- per month and awarded Rs.2600/- per month from the date of order.
10. In the case of Ramesh Chander Kaushal v. Mrs. Veena Kaushal and others, (AIR 1978 SC 1807) Krishna Iyer, J dealing with interpretation of Section 125 Cr.P.C. observed (at Para 9) thus:-
"This provision is a measure of social justice and specially enacted to protect women and children and falls within the constitutional sweep of Article 15(3) reinforced by Article 39. We have no doubt that sections of statutes calling for construction by courts are not petrified print but vibrant words with social functions to fulfil. The brooding presence of the constitutional empathy for the weaker sections like women and children must inform interpretation if it has to have social relevance. So viewed, it is possible to be selective in picking out that interpretation out of two alternatives which advances the cause of the derelicts."
11. Section 125 Cr.P.C. is a measure of social justice on this point. It is also pertinent to mention here that intention of legislature also shows that this provision is measure of social justice because initially amount of maintenance was fixed to Rs.500/- per month. Subsequently, it was enhanced upto Rs.5000/- per month and later on these words have been deleted and present position is that there is no financial limit for maintenance under this section.
12. Main argument raised by learned counsel for the revisionist is that opposite party no. 2 is living in adultery. It is submitted that revisionist has filed one photograph proving that opposite party no. 2 is living in adultery with a person namely Dealer and she is living with Dealer as wife and husband, hence she is not entitled for any maintenance.
13. Question is whether the allegation that she is living in adultery, has been proved by the revisionist or not. In this regard it is pertinent to quote Section 125 (4) Cr.P.C.
"(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."
14. It was held in the case of Mehbubabi vs. Nasir Farid, 1977 CrLJ 391 (Bombay-DB) that mere friendship with a man does not amount to living in adultery.
15. In the present case, said photograph has not been proved. If it is presumed as having been proved, even then it does not prove that wife is living in adultery with a man appearing in photograph called 'Dealer'.
16. Provision of Section 125(4) Cr.P.C. is an exception to general rule. Burden lies on husband to prove that his wife is living in adultery.
17. In the case of Laharam v. Melan Bai, 1987(2) Crimes Page 560 (Madhya Pradesh), it has been held that charge of adultery must be proved by cogent and reliable evidence.
18. It is pertinent to mention here that adultery is an offence under Section 497 IPC punishable with imprisonment which may extend to five years or with fine or with both. If adultery is proved against Sarmina, wife of revisionist with Dealer, then Dealer can be punished under Section 497 IPC. Hence, heavy burden lies on husband to prove that his wife is living in adultery with Dealer. Word used under Section 125(4) Cr.P.C. is "living in adultery", it does not mean a single act of adultery. It refers to continuous adultery and means something more than a single lapse of virtue.
19. Next argument raised by learned counsel for the revisionist is that opposite party has filed divorce petition against revisionist and she has refused to live with him, hence she is not entitled to any maintenance, but it has no force. Only on the ground that opposite party has filed divorce petition, maintenance cannot be refused. In the case of Rohtas Singh vs. Smt. Ramendri & others, AIR 2000 SC 952 it was held by the Apex Court that a divorced wife continues to enjoy the status of a wife for the limited purpose of claiming maintenance allowance from her ex-husband. The ground of divorce is irrelevant in granting maintenance allowance.
20. In my opinion even if there is a valid decree of divorce, still the wife is entitled to maintenance till she gets remarried and becomes the wife of another person, if she qualifies all other aspects of Section 125 Cr.P.C. because explanation (b) of Section 125 Cr.P.C. specifically says that wife includes a woman who has been divorced by or has obtained a divorce from her husband and has not remarried.
21. Therefore, all grounds are without substance. No other ground has been pressed before this Court. The Court below has carefully noticed all facts and has rightly decided the case in favour of opposite party no.2. This Court finds no illegality, impropriety, material irregularity or jurisdictional error in the impugned order. No interference is called for. The present revision is bereft of merit and is hereby dismissed.
22. Certify this judgment to the lower Court immediately.
Order Date :- 16.3.2018 P.P.